If the police suspect your involvement in a crime involving the delivery or possession of a controlled substance but do not have enough evidence to justify an arrest, they may want to question you. They hope that you will respond to the questioning by confessing or by making incriminating statements that will supply them with an excuse to arrest you. Even if the police already have probable cause to arrest you, they might want to question you before making the arrest.
If they wait until you are in custody, they must give you Miranda warnings before they ask you questions. The police generally do not want to tell you that you have the right to remain silent or the right to a lawyer because they are afraid you will exercise those rights.
Disadvantages of Talking to Police
In case after case, people talk themselves into criminal convictions by talking to the police. Even innocent people who are falsely accused are convicted because they answered questions or gave statements to law enforcement officers. You should always remember that anything you say will be used against you, but it is just as likely that things you do not say will be used against you. If you omit an important fact because it did not seem important at the time, the prosecutor will later make it appear that you were hiding the truth.
If you talk to the police, you have no control over their recollection of the conversation. They may distort or misunderstand your words. They may “forget” answers you give that do not fit their theory of your guilt. By the time they write their report, you may not recognize the statement they claim you gave.
If you later testify that the report is wrong, the prosecutor will paint you as a liar. If it comes down to your word against the police officer’s, the odds are good that the jury will believe the officer.
Responding to Law Enforcement
If the police want you to answer questions, just say no. Other than specific situations in which you might be required to reveal your name, you never have an obligation to answer a police detective’s questions. You have the right to remain silent whether or not the police tell you about that right. Whether you are innocent or guilty, you should always remain silent when the police want to question you about a crime.
Suspects often worry that they will “look guilty” if they refuse to answer questions. The police already suspect your guilt. That’s why they want to question you. You will not change their minds by talking to them. If you deny guilt, they will assume you are lying and will devote their efforts to proving that you lied. If you admit guilt, you make a conviction easier for the government to secure. If you say nothing, you give the police and prosecutors no ammunition to use against you.
Sometimes the police will tell you that you are not a suspect or that they just want to confirm information that they already have. Those statements may or may not be true. They are also irrelevant. You might not be a suspect when you are questioned, but you might become a suspect later. Always assume that talking to the police will get you into trouble. Never do it without getting legal advice first.
The police might also tell you that things will go better for you if you cooperate. That just isn’t true. The police want to make things better for the prosecutor, not for you.
Right to Counsel
You always have the right to be represented by a lawyer when the police question you. If a drug agent wants to talk to you, your response should be “I will not speak to you without having a lawyer present.”
You need to assert your right to a lawyer in clear language. Do not say “Maybe I need a lawyer” or “It might be best to wait until I can talk to a lawyer.” The police can keep asking you questions if your request for a lawyer is ambiguous. As soon as you say “I will not speak to you without having a lawyer present,” the police are required to stop asking you questions.
If you are suspected of a drug crime or if you may become a suspect, your lawyer will probably advise you not to talk to the police under any circumstances. If you are a witness to a drug crime, your lawyer may or may not be willing to let you speak to the police. Your lawyer might not want to make that decision without talking to the police (or a prosecutor) first.
Unless there is some benefit you will gain by talking to the police, or unless it is absolutely clear that you are an innocent witness who cannot be harmed by cooperating, your lawyer will probably tell you to decline requests to make a statement.
If you do make a statement to the police, you will want to have a lawyer at your side. Police detectives rely on intimidation and deception as interrogation tactics. They are less likely to do so if your lawyer is present. A lawyer will protect your rights and will end the interview if the police begin to violate them.