Natty Shafer Law

Utah lawyer for criminal and immigration cases


Voluntary Police Questioning

Sometimes, police officers may want to question you before they arrest you. Such “voluntary” questioning can be problematic for a suspect because police do not need to give you a Miranda warning until arrest. However, the government will still use any incriminating statements made before arrest in court. The government does not have to provide an attorney for indigent individuals, and those that could afford an attorney might not realize they really should have one.

It’s a common misconception that anything said before a Miranda warning is inadmissible. For example, here in Utah, a friend of mine was with a group of people on a school playground late at night drinking alcohol. When someone spotted the police, everyone scattered. Some time later, an officer saw him on the street and asked him if he was among the people who had been drinking. My friend said that he was. When he represented himself in a Utah court, his admission was the key evidence against him. He tried to tell the judge that the officer never gave him a Miranda warning, but, of course, the judge didn’t care because he hadn’t been arrested when he said it. And my friend is the son of a (non-criminal) attorney.

It’s important that anyone detained by the police ask if they are free to leave. Police can only detain a suspect for a short time—not much more than the average traffic stop—before a judge will conclude that the suspect was in custody, and thus under arrest. When police officers say you are free to leave, you should take advantage of their offer. To circumvent Miranda, police will sometimes tell suspects that they are free to leave when they really aren’t. Judges are skeptical that questioning occurred under voluntary conditions, if, for example, the police arrest you immediately after you decide to leave. Courts examine whether the questioning constituted “custodial interrogation,” and the fact that someone was not formally arrested does not necessarily mean that police do not have to give Miranda warnings.

Suspects who haven’t been formally arrested need an attorney just as much as someone who has. As I previously mentioned, it is paramount that you speak to an attorney if you are in custody.

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Exercising Your Right to Silence Is Not Enough

In a post this week, I emphasized the importance of exercising your right to a lawyer, as soon as you are arrested. Some readers may have thought that it’s not necessary to immediately get a lawyer if you just stay quiet and exercise your right to silence.

Staying silent is a good start, but it’s insufficient. The Supreme Court has explicitly left open the possibility that suspects who have invoked their rights to silence can still change their minds. Suspects can show they’ve changed their minds by simply speaking. Once someone starts speaking, the floodgates have opened and the police can start or resume full-scale interrogation. Someone can explicitly tell police that they want to remain silent, but if they mention something related to their case—even if it’s only tangentially related—then they’ve legally shown their willingness to talk.

Also, police are allowed to re-approach someone who has already invoked their right to silence. If a reasonable time has passed, police officers are allowed to start talking to a suspect in the hope that they will have changed their mind. If they suspect starts talking, then as a far as the Supreme Court is concerned, they’ve obviously changed their mind. Some states have rules or laws prohibiting police officers from using either of these tactics, but Utah isn’t among them. Police departments in Utah are allowed to re-approach suspects who have invoked their right to silence, and they are allowed to start questioning suspects who change their mind, without confirming that they actually want to to relinquish their right to remain silent.

Invoking your right to an attorney is different, though. Once someone says they want a lawyer, all police questioning must stop. They aren’t allowed to re-approach the suspect, ever, without their attorney present. Suspects can’t casually change their minds either; suspects have to explicitly sign a waiver stating that they no longer want a lawyer. Getting a lawyer sooner, rather than later, is your best chance of minimizing any potential legal problems you may encounter.


What to Do if You Have Been Arrested

If you are arrested, what you say can be critical. That’s why it’s very important that you request a lawyer immediately. In Utah, police only have to give you the customary Miranda Warning that you have the right to an attorney. No police department in Utah will advise you that it is a good idea that you get a lawyer; lawyers makes their job harder. (But we make it much better for you!)

Many people are reluctant to ask for a lawyer because they think that by asking for a lawyer, the police will think they are guilty. This next point is absolutely critical: if you have been arrested, the police already think you are guilty.

That point is so important that it bears restating. If the police have arrested you, they already think you are guilty, of at least something. You are not going to talk your way out of their suspicions. Do not try to convince the police of your innocence. Anything you say will likely make matters worse. You may unwittingly confirm your knowledge of the crime or you may admit to a related crime. Let a trained attorney do the talking for you. Whether you are in Utah or somewhere else in the United States, an attorney like me can steer you clear of the common traps that police lay for suspects.

Lying to police makes matters much worse. People forget that Martha Stewart went to jail for obstruction of justice, conspiracy, and making false statements. Those convictions stemmed from lying to federal officials and have little to do with the reasons she was initially investigated.

Next, do not trade momentary comfort for long term pain. Police in Salt Lake City and other jurisdictions are allowed to lie to you. They can tell you that if you just admit it, everything will be easier for you and you can go home. This is a whopper of a lie. The police may even let you go home immediately, but it won’t be easier for you. The criminal charges will still come. If you request a lawyer, it may take more of your time in the short term, but you will be better off in the long term.

Finally, be sure to make your request for a lawyer absolutely clear. If the police ask if you want a lawyer, say, “yes.” Do not qualify that statement in any way. You want a lawyer present. If the police start questioning you, tell them, “I want a lawyer present.” Do not make this a question. (E.g. “Should I get a lawyer?” or “Do you think I need a lawyer?”) Salt Lake County police departments know that they can continue to question you if you’ve made ambiguous requests for a lawyer. Only an unequivocal request for a lawyer will do.