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The right to remain silent applies even before an arrest

| Jan 10, 2020 | Criminal Defense |

Even being pulled over in a traffic stop is enough to make many Amherst residents nervous. They may feel as though they are obligated to answer any questions posed to them by police, and officers will not usually correct them. The fact is that the right to remain silent applies even before a person is placed under arrest, including during a “stop and frisk,” during which officers have the right to briefly detain individuals when they reasonably suspect a crime was or is about to be committed.

Most everyone knows that, once under arrest, one has the right to remain silent and to talk to an attorney. However, there remains a gray area when it comes to exercising this right before an arrest. As far as the United States Supreme Court is concerned, there is no gray area, but when it comes to lower courts and appellate courts, some confusion continues to occur. Correcting this problem will more than likely take more people coming forward to complain about arrests resulting from the refusal to answer police questions prior to an arrest.

While Amherst residents are required to answer some basic questions, usually relating to identification, any other questions do not have to be answered. The U.S. Constitution guarantees individuals the right not to incriminate themselves. The U.S. Supreme Court has ruled that it does not specify they must be under arrest before exercising the right to remain silent. Unfortunately, in some instances, police will arrest an individual based on the refusal to answer questions.

Anyone stopped by police and subjected to a “stop and frisk” has the right to remain silent when it comes to police questioning prior to an arrest. Those arrested based on the fact that they did not answer questions may have legal recourse, the least of which being the dismissal of any charge stemming from that refusal. The country’s founding fathers understood that people need protections from the government, and even hundreds of years later, individuals should not feel threatened to waive the rights granted to them by law.