Under the Fourth Amendment, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. If the police are merely bringing you to the police station for questioning, they cannot arrest you unless they obtain probable cause with regards to you committing a crime. There have been times where questioning can get intense, almost to the point that the questioned individual is coerced by the police. This can be problematic, because it can lead to someone confessing to a crime they didn’t truly commit.
Additionally, determining whether the Fourth Amendment or the Fifth Amendment applies can be tricky in these sort of situations. Under the Fifth Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .” This is where the Miranda rights come in to play, which you might be slightly familiar with. They are:
- You have the right to remain silent
- You have the right to an attorney (This is where we come in should you be able to afford one, but if not the court will appoint you one)
- Anything you say or do will be used against you in a court of law
These rights should be provided to you by the police when you are in custodial interrogation. Preliminary questions do not count (asking your name, etc.). Rather, interrogation can go beyond direct questions to comments made by a police officer if the officer should know that the suspect might provide incriminating information in response. Furthermore, in order for the Fifth Amendment to apply, a person must be in custody, which is any situation in which an individual does not have freedom of action. They do not need to be formally arrested, placed in handcuffs, or otherwise physically restrained.
If you wish to request an attorney, you must state it UNAMBIGUOUSLY! For instance, “I think I might need a lawyer” isn’t enough to terminate the interrogation phase. Once you request a lawyer, the police are not allowed to ask you any questions relating to the incident. However, if you say something about the case to them, you might end up waiving your right to counsel and facing requestioning. If the police fail to honor your Miranda rights, that would be unlawful.