If police talk with you about anything, there are several important things you need to remember. First, you should understand the rights you have during law enforcement questioning. You also need to know when you can assert those rights. Finally — and this is a separate issue with a different answer — you should understand the legal requirement for police to warn you about your rights.
If law enforcement stops you anywhere or comes to your home (or another location) to ask you questions, you have specific rights under the United States Constitution. These rights are sometimes called Miranda rights, because a United States Supreme Court decision in a case by that name requires police to warn about those rights. While most people are familiar with the rights from watching television and movies, there are important details about these rights that you should remember.
Under the Fifth Amendment to the Constitution, you have the right to remain silent and to refrain from making statements that incriminate you. The right applies to communicative evidence in response to police questions.
During police questioning, you do need to give law enforcement your name in certain circumstances. Generally, police can request identification if they have a reasonable suspicion of criminal activity. Refusal to identify yourself in that situation may result in arrest for resisting an officer’s lawful order.
The right against self-incrimination also does not entitle you to refuse collection of evidence like fingerprints or DNA samples. In Nevada, it does not entitle you to refuse an alcohol or drug test in connection with a DUI stop. However, you are not required to consent to a police search of your vehicle or home. You may read our recent blog article, Police Searches in Las Vegas: Know Your Rights, for more information about your rights during a search.
The Sixth Amendment to the Constitution includes a number of rights relating to criminal prosecution. They include the right to be represented by legal counsel during police questioning. You are entitled to have a lawyer present from the initiation of any interrogation and to have a lawyer represent you in all aspects of a criminal proceeding.
You may not realize that you have your Constitutional rights all the time. From the very beginning when police start to ask questions, you are entitled to assert your right to remain silent and to have a lawyer present. You do not need to wait to assert your rights until law enforcement officers advise you of those rights.
You should use your best judgment and common sense in deciding whether to assert your right not to speak to police. If you are providing information as a witness to a crime or as the victim of a crime, it may be advisable to talk with them. However, if you think a police officer suspects you of a criminal offense, you probably want to assert your rights, refuse to answer questions, and ask to have a lawyer present during questioning.
Law enforcement officers are not required to warn about your rights when they begin to question you. Under United States Supreme Court decisions, that requirement applies when a person is arrested, in police custody, or deprived of freedom of action in any significant way.
If you are not in custody and are free to leave, the warning from police about your rights is not required. In fact, police officers may avoid making an arrest and even tell you that you are free to leave in order to avoid advising you of your rights.
Regardless of the circumstances, you can decline to answer questions most of the time based on your right not to incriminate yourself. You cannot be arrested for failing to respond to a police inquiry, unless the situation falls within one of the exceptions, such as responding to a police request for identification.
If an officer fails to advise you of your rights at the time the law requires the warning, it does not necessarily mean that you won’t be prosecuted. It means that the statements you gave likely cannot be used against you in a case — and neither can any other evidence they found as the result of your statements.
In some cases, exclusion of your statements may mean that there is no basis for prosecuting. In other cases, the prosecution may continue the case if there is other evidence to support the charge. If the case continues, the prosecutor still may be able to use the illegally obtained evidence to attack your credibility at trial, if you testify and make a statement that contradicts the illegally obtained statement.
In some situations, a prosecutor may voluntarily agree not to introduce evidence of statements obtained when police should have given the rights warning but did not. However, in most circumstances, the defendant’s lawyer must file a court motion to suppress the evidence and establish the illegality of the statements based on what occurred prior to and during the arrest.
If you face state or federal criminal charges in Las Vegas, Henderson, or elsewhere in Clark County, you want an aggressive criminal defense attorney who not only understands the laws and local courts and practices, but also knows how to analyze all the evidence. Criminal defense attorney Joseph Gersten will evaluate your case based on his extensive investigative background and Las Vegas criminal defense experience. His analysis includes reviewing the circumstances of your arrest to determine the legality of the evidence.
Your initial consultation is always free. Call 702.857.8777 or complete our online form to schedule an appointment.