Constitutional Protections from Police

People commonly misunderstand their obligation to cooperate with police. Frequently, an individual believes that he or she must answer any questions asked by a police officer simply because he or she is interacting with a figure of authority. However, it is important to realize that this is not the case.
The Fifth Amendment to the Constitution protects an individual’s right to not be compelled to self-incriminate. This right is contained within the recitation of a person’s Miranda rights – a police officer will state that “you have the right to remain silent.” Unfortunately, a police officer doesn’t recite Miranda rights until someone is being placed under arrest. But the Fifth Amendment allows us to exercise the right to remain silent at nearly any point during an interaction with a police officer.

If, for example, a person suspected of DUI informs the police that she will not answer their questions until she has an attorney present, implicitly exercising her right to remain silent, the police are required to honor that request. Additionally, the Sixth Amendment grants all citizens the right to an attorney in criminal proceedings. Thus, the fact that she requested an attorney, or in other words exercised her Fifth Amendment right, cannot be used to incriminate her at trial.

The Fifth Amendment protects individuals even when a contradictory state law exists because the Supremacy Clause, contained in Article Six of the Constitution, states that federal law will always trump a contradictory state law. For example, a North Carolina law requires individuals to inform police whether or not they were the driver of a car involved in an accident. Durham-based attorney Mark Hayes has argued that this state law arguably contradicts the Fifth Amendment’s protection against self-incrimination. This contradiction is even more apparent when the driver is a juvenile, and that juvenile’s admission that he or she was the driver can be used to establish that he or she committed underage driving. “Although citizens are presumed to know the law and their rights, this expectation cannot be unreasonable. In a case where I represented a 13-year old accused of underage driving, it was probably unrealistic to expect a child to understand the North Carolina law compelling him to inform the police that he was the driver, and even more unrealistic to expect him to understand the protections granted to him by the Fifth Amendment,” said Hayes. “It’s important to help the police do their job. But this duty does not supersede the protections granted to all of us by the Constitution,” Hayes continued.

The Fourth Amendment creates another protection from police, which will be discussed in a later post.

Posted on: 20 Oct, 2015