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ARE YOU REQUIRED TO RESPOND WHEN LAW ENFORCEMENT ASKS YOU A QUESTION?

Posted by on in Florida Criminal Law
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Recently, I have heard from several people that they have been told by police officers that they had to answer an officer’s questions or face being arrested for “obstructing an investigation”? Is this true? In general, an officer may ask a lawfully detained person to identify him or herself.  As with most legal questions, the full answer is not absolute and depends on specific circumstances, but, in general, it is not true that you must answer further questions, and an arrest would be unlawful. The law is far from crystal clear, and swirls around the definition and interpretation of the right to remain silent. A new case from the Florida Supreme Court has changed the law within our state as to the consequences of silence. Skip to the bottom for the short answer; read on for an explanation of how you get there…

The “Right to remain silent” under the 5th Amendment and Florida Article I, Sec. 9

Most people believe there is a right to remain silent under the 5th Amendment to the U.S. Constitution (Article I, Section 9 of the Florida Constitution).  Seem obvious?  Not so fast.

The 5th Amendment says: “no person…shall be compelled in any criminal case to be a witness against himself.” [Florida Constitution version - “be compelled in any criminal matter to be a witness against oneself.”] The privilege is to protect the innocent as well as the guilty, as a person “may have a reasonable fear of prosecution…. [and] might be ensnared by ambiguous circumstances.” (Ohio v. Reiner, U.S. 2001).

The courts have interpreted the privilege to apply primarily after a person has been deprived of their liberty in some way such as by arrest, or by any functional equivalent such as a detention on the street (Miranda v. Arizona, U.S. 1966). When a person is deprived of their freedom of movement, the officer is required to read the well-known Miranda warning before continuing any interrogation so as to advise a person that they possess such a privilege and are not required to answer any questions.  One must unambiguously claim the right (“I invoke my right to remain silent” works) in order to stop continued questioning; mere silence won’t work to stop the continuation of questions, Berghuis v. Thompkins, U.S. 2010.  

If an officer walks up to you on the street and simply asks you a question that may call for an incriminating answer (or one that seems incriminating), but with no detention, and you answer, you are deemed to have voluntarily WAIVED your right, and your answer may be used against you, even though no Miranda warning was read.

What do you do if you do not wish to answer an officer and wish to remain silent?

The answer literally depends on where you are physically….

Outside of Florida, you must assert your right to remain silent explicitly (“I invoke my constitutional right to remain silent”)(Salinas v. Texas, U.S. 2013) even if you have not been placed in custody and have not been read Miranda, or your words, and your silence, may be used against you.

In Florida, you may simply remain silent (but better to actually invoke) and your pre-arrest silence or invocation may NOT be used against you. The Florida Supreme Court recently decided  a case involving “pre-arrest” silence – State v. Horwitz (May 5, 2016) - and reversed a conviction for murder where the prosecution argued that the defendant’s pre-arrest silence in the face of general questions by law enforcement upon their arrival at the scene of a death constituted “consciousness of guilt.”  Our Supreme Court said silence is not evidence and may not be used or argued against a non-testifying defendant, even when she failed to explicitly invoke her right to remain silent, under the authority of the FLORIDA CONSTITUTION, Article I, Sec. 9, and other statutory provisions.

What is a detention? And why does it make a difference on how I may respond to a question?

Confusion abounds on the definition of custody, or detention.  Simple civil traffic stops are NOT custodial detentions according to our courts, even though the driver is NOT free to leave under the felony “fleeing” statute in Florida law (F.S. Sec. 316.195). But directing a sleeping person in a legally parked car to exit it, or even roll down their window, has been found to constitution a “detention.”

In most circumstances (except simple traffic stops), if you are not free to walk away, you are detained. The Florida Supreme Court, interpreting the US Supreme Court’s decision in Terry v. Ohio (U.S. 1968 ), said that there are several levels of police-civilian interactions.  In Popple v. State (Fl. 1993), the Florida Supreme Court defined the lowest level of interaction as a “consensual encounter”.  In this circumstance the person is free to walk away so long as the officer has no reasonable suspicion that any criminal activity is afoot, no legal right to detain, and takes no action to lead the citizen to believe that they are not free to leave; if the officer asks a question, and the person answers, his answer is deemed voluntary and may be used in any manner.

The implication of this type of contact is that the citizen is free to walk away and simply not respond.  The trick, however, is knowing whether one is actually free to leave and not under any suspicion. Trying to leave when an officer has reasonable suspicion may constitute opposing a law enforcement officer, a criminal offense.  In 2004, the US Supreme Court held in Hiibel v. Nevada that a person detained upon reasonable suspicion of criminal activity must identify themselves... beyond that no other information is required.

If you are more confused than when you started this article, and the answer is open to such wide interpretation by the police and the courts alike, what must the mere citizen do? What are the options? Read on.

IF ASKED A QUESTION, ASK QUESTIONS TO DETERMINE YOUR STATUS; QUESTION AUTHORITY.

 In response to any question, ask, “Am I free to leave?  Am I being detained?”

a.    If the answer is “You are free to leave, you are not being detained”, and you do not wish to answer questions, LEAVE.

b.    If the answer is “You are not free to leave, you are being detained”, you may ask why but don’t expect an answer (they are allowed to lie to you and not answer your questions; it’s called “investigative technique.”) You may NOT lie to them… that is worse than any option you have and may be a crime. You must identify yourself.  If you do not wish to answer any other question INVOKE YOUR RIGHT TO REMAIN SILENT UNDER FLORIDA AND FEDERAL LAW.  At that point they must cease asking you questions.  If you remain in custody, add a request to have an attorney present for any further questioning.  They are required to have an attorney present before they try to ask you questions again.  DO NOT WAIVE YOUR RIGHTS BEFORE TALKING TO AN ATTORNEY!!

The bottom line is this, ASK QUESTIONS BEFORE ANSWERING and INVOKE, INVOKE, INVOKE. A right not asserted and demanded, no longer exists.

Post script:

Florida law makes everyone (except attorneys and spiritual advisors) mandatory reporters of child abuse, under penalty of law.  If you have no criminal exposure, you are required to report child abuse, but your right to remain silent trumps this statutory law IF your statement may incriminate you. See, there is an exception to everything.

Barbara Blount-Powell has been a criminal defense attorney in Gainesville, Fl. since 1984 and became a partner at DeThomasis and Buchanan in 2001. She is a member of the National Association of Criminal Defense Lawyers and has served as both President of the Eighth Circuit Chapter, and chapter representative to the state-wide board, of the Florida Association of Criminal Defense Lawyers.