Client: “I have just been detained by the police for suspicion of (insert crime). They want to talk to me about what happened. They say it will help to tell my side of the story. It sounds reasonable. Should I?”

Lawyer: “No! Absolutely not! Don’t even think about it. Tell them you want to talk to your lawyer.”

All people in America have a fifth amendment right to remain silent. The fifth amendment states that no person in any criminal case shall be compelled to be a witness against himself. This simply means that you do not have to talk to the police. You do not have to answer any questions upon being detained or arrested. The only information you have to give the police is your personal identification information so they know who they are arresting.

But why did the founding fathers see fit to put in the Constitution this right to remain silent? Why can’t people be compelled to give a statement when they are suspected of a crime?

Contrary to popular belief, the fifth amendment right to remain silent was not put in the Constitution to protect wrongdoers. It was put in the Constitution to protect innocent people who might make a statement which is used against them later or a statement which makes them look suspicious because of some unfortunate circumstances.

It depends on the circumstances. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. If the officer does not have reasonable grounds to suspect that the person is committing, has committed, or is about to commit an offense, then the officer does not have grounds to stop the person and demand information.

If you are stopped by an officer when there is no reason to suspect you have committed any offense, then you do not have to speak to the officer. You can turn your back and walk away. However, it is always advisable to be polite when speaking to police officers. Rudeness or foul language can itself be considered a disturbance of the peace, which can be cause for arrest.

It is also advisable not to run from the police, but instead just walk away. Running from the police can be considered evidence in and of itself that a person has committed an offense and is fleeing to avoid apprehension. So that act alone can be cause for an officer to stop a person and ask questions.

When a law enforcement officer has stopped a person for questioning, and has reasonable grounds to suspect that the officer may be in danger, the officer may frisk the outer clothing of the person for a dangerous weapon. This is the law of Louisiana.

Thus, if an officer is questioning a person in a safe place, and the person has given the officer no reason to suspect that the officer may be in danger, then the officer does not have the right to frisk the outer clothing of the person for weapons.

But if the officer is in a high crime area of town, if the officer is alone on a dark street with the suspect, or if there are bulges or hard objects clearly sticking out from under the clothing of the person, these things may give the officer reasonable grounds to believe that he is in danger. And for officer safety, he can frisk the outer clothing of the person. Of course, this does not give the officer grounds to conduct a full search of the person by doing things like sticking his hand in the person’s pocket, unless when feeling the outside of the person’s pants, he feels a large object like a gun or a knife in the person’s pocket.

Client: “The police are at my door and want to search my house. do I have to give consent? They say if I do not give consent, they will just go get a warrant anyway and search the house without my consent. What should I do?”

Lawyer: “No! Don’t do it! You have a right to tell the police that you do not consent to a search.”

People have a common misconception that they are obligated to give the police the right to search their home, car, or persons. But in fact, no one is obligated to give the police consent to search anything. The police will go to great lengths to convince suspects that they should consent to a search. One of the most common is to tell the driver of a car or the owner of a house that if they do not give consent for the police to search, the police will simply go get a warrant from a judge. And their refusal to grant consent will only delay the inevitable.

What the police fail to tell suspects is that judges do not always give police search warrants upon request. If the police do not have probable cause to believe that a crime has been committed, the judge will not grant the search warrant.

The United States Constitution states that all persons shall be secure in their property and effects and shall be free from unreasonable searches and seizures by the police. The Louisiana Constitution goes even further, and includes a right to privacy which is not included in the federal constitution.

“The Louisiana Constitution states that every person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy… Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court.”

Make note of the last sentence quoted above. If the police conduct a search without probable cause, this search is in violation of the Constitution. In that case, the suspect can challenge the search in court, and it is possible that the court may throw out any evidence which was seized in violation of the Constitution.

Normally, for a traffic offense or some similar minor misdemeanor, the police issue a summons or a ticket, requiring the person to either pay a fine or appear in court. For more serious misdemeanors like OWI or possession of marijuana, the police usually make a full arrest. But in some cases, police have been known to issue a ticket for possession of marijuana or make a full arrest for a traffic offense like driving under suspension.

So how does one know what the police will do in a particular situation? Well, the answer is found in the Louisiana Code of Criminal Procedure, Article 211. It provides that it is lawful for a police officer to arrest a person without a warrant for a misdemeanor. This includes any misdemeanor, such as a traffic violation. However, the law gives the officer the option to issue a written summons or a ticket instead of making an arrest if—

• The officer has reasonable grounds to believe that the person will appear in court for the summons
• The officer has no reasonable grounds to believe that the person will cause injury to himself or another if he is not immediately arrested

So it all depends on the circumstances. For instance, if a person is being loud or obnoxious or drunk in a public place, an officer can issue a ticket for disturbing the peace. But if that same person is being loud and obnoxious and belligerent toward other people, the officer can arrest him for disturbing the peace if the officer thinks that by leaving him there, a fight or further disturbance may ensue.