We've all heard it, but few practice it. One of many rights set out in the Fifth Amendment of the United States Constitution is the right to be free from self incrimination. It is vital that you exercise this right. Law enforcement officers are trained to elicit incriminating information. They do this in a variety of ways, including making people believe they can explain to the officer why they are not guilty of whatever crime it is being investigated. While you are required to provide your name to law enforcement, and to provide a driver's license if you're pulled over while driving, you are not required to answer any other questions. 

Having watched hundreds, if not thousands of hours of law enforcement body camera footage, I know it's hard to assert the right to remain silent. Many people think they will appear disrespectful and that the officer will retaliate if they don't answer simple questions such as "How many drinks have you had tonight?" or "Where are you coming from?" There's never a right answer to these questions. If someone is worried about being disrespectful, an effective way someone might reserve their right would be to say to the officer, "My lawyer friend says I should always exercise my right to remain silent, so I respectfully decline to answer any further questions without an attorney present."

The Fourth Amendment of the United States Constitution protects your privacy rights by putting limits on when and how law enforcement may search your person or property. Generally, law enforcement is required to obtain a warrant before conducting a search. In order to get a warrant, they must have probable cause to believe that evidence of a specific crime will be found in the search. 

While there are some exceptions to the search warrant requirement, the one you have the most control over is "consent." Consenting to a search is never in your best interest, and refusing to consent to a search cannot be used against you in court. As with your right to remain silent, you should always exercise this right. A simple statement like "I've been told by my lawyer friend that I should never consent to a search, so I respectfully do not consent" can be effective in an otherwise intimidating situation.

I've had many clients misapprehend their Miranda rights to their detriment, stating things like "but I wasn't read my Miranda rights before I told the cop I was sorry and I shouldn't have been driving drunk." Just because a person hasn't been read their Miranda rights, doesn't necessarily mean the statement cannot be used against them in a court of law. This is why it is vitally important that everyone exercise their right to remain silent. 

Miranda rights apply to what is known as custodial interrogation, as set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436. Custodial interrogation requires the presence of two key factors: 

1. Custody - The individual must be in custody of law enforcement and/or deprived of their freedom in some significant way. The analysis as to whether someone is in custody can be fact intensive, but once the initial reason for the stop is completed, a simple question can set the record for future court proceedings.  "Officer, am I free to go?"

2. Interrogation - Interrogation occurs when a law enforcement officer asks a question that's likely to elicit an incriminating response. 

An effective invocation of Miranda rights must be unequivocal. A statement that "maybe I need an attorney," is likely insufficient. A proper exercise of Miranda rights would be something like this: "I respectfully decline to answer any questions without an attorney present." 

Invoking one's Miranda rights doesn't create immunity from any confession made after the rights were asserted if the individual makes a statement that was not a response to an interrogation question from law enforcement. Take the following dialogue, for example: 

Police Officer: "It sure is hot out here today." 

Suspect: "It was hot yesterday, too. That's why I broke into that air conditioned building." 

Here, even though the suspect invoked his Miranda rights, his spontaneous statement may be used against him in court because it was not an answer to a question meant to illicit an incriminating response.