Ever wonder why lawyers advise their clients to keep quiet and to refrain from volunteering information? Why is that? Why should we heed that advice?
When we are approached by police officers, either they already have “probable cause” to arrest us or they don’t. If they had sufficient reasons to arrest, then they would. If they are not arresting us, it is because they don’t yet have sufficient reasons or “probable cause.”
If we volunteer information, we may say things that incriminate us. We may unwittingly give law enforcement officers “probable cause” to arrest us. However, if we remain silent and refuse to volunteer information, the officers have to gain that information from other means if at all possible.
It’s not by mistake that the Miranda warnings start with:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law.”
The Miranda warnings are required after a person has been arrested. They are also required when “custodial interrogation” takes place. “Custodial interrogation” can be a gray area. “Custodial” refers to those circumstances when we are “not free to leave” or walk away or to terminate the encounter with the officers. “Interrogation” takes place when the questioning elicits incriminating evidence.
Let’s assume the officer has “reasonable suspicion” to pull us over because she observed our brake lights are not working. At that point, without additional information, she doesn’t have probable cause to arrest us for driving under the influence. How does this situation go from a fix-it ticket to probable cause to arrest?
The officer starts asking questions like where we are heading, where we are coming from, what we’ve had to drink, when, how much, etc. She may notice odor of alcoholic beverage on our breath, hear slurred speech, and see bloodshot eyes. At that point, she may ask us to submit to certain field sobriety tests and, depending on what ensues, there may be probable cause for her to arrest us.
But if we keep quiet and not volunteer anything (other than license, insurance, and registration), we limit the flow of information and we do not contribute to her having probable cause to place us under arrest.
By keeping our mouths, shut we refrain from potentially incriminating ourselves and also from rendering possible defenses inapplicable. This is why attorneys tell their clients to keep quiet.