How to properly NOT talk to the police (part 1)

“I’m not talking. That’s what I’ve got to say.” The Yardbirds, 1965

“Deputy Dan has no friends.” The Firesign Theater, 1970.

“No good ever came of talking to the police.” Mark W. Bennett, 2009.

As a lawyer this is one of the topics that I am most often asked questions about.

Whether you are in custody, or detained, or restrained, or none of the above, you do not have to talk to the police or answer any questions beyond what the law requires. The key is knowing what to do in each situation, what to say and what not to say, and how to recognize which situation you are in.

Under present Texas law: “A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.”  [Texas Penal Code, Section 38.02(a)].

But wait there is more. “A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:  (1) lawfully arrested the person; (2) lawfully detained the person; or (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense. [Texas Penal Code, Section 38.02(b)].

And there is another important consideration. “In this chapter:
(1) “Custody” means:
(A) under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court of this state or another state of the United States; or (B) under restraint by an agent or employee of a facility that is operated by or under contract with the United States and that confines persons arrested for, charged with, or convicted of criminal offenses.
[Texas Penal Code, Section 38.01]

What actually happens out on the street though is not always so clearly defined

Police and Citizen Encounters

Let us turn to Justice Baird’s opinion in Francis v. State (922 SW 2d 176 at 178, Tex. Cr.. App., 1996) for a concise exposition.

“There are three recognized categories of interaction between the police and citizens: encounters, investigative detentions and arrests.
The Fourth Amendment is not implicated in every interaction between police officers and citizens. Terry, 392 U.S. 1, 88 S.Ct. 1868. An encounter is a friendly exchange of pleasantries or mutually useful information. Id., at 13, 88 S.Ct. at 1875-76. “As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In an encounter police are not required to possess any particular level of suspicion because citizens are under no compulsion to remain. Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Cr.App.1988); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Cr.App.1986). However, in order for investigative detentions and arrests to be legal, particular levels of suspicion are required.
Furthermore:  “The controlling distinction between an encounter and either an investigative detention or an arrest is whether there has been a seizure. A seizure occurs when a reasonable person would believe he or she was not free to leave, and whether that person has actually yielded to the officer’s show of authority. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Cr.App.1995) (plurality opinion). In short, interaction without a seizure is an encounter.”

So how do you find out what sort of situation you are in?

Ask the officer? The pitfall here is that the police are not obligated to tell you the truth. That’s right. In fact, police officers routinely lie to suspects in order to gain information, admissions, and confessions. Remember that “Deputy Dan has no friends.” No matter how friendly he may seem or what he may say.

You can technically be in custody although you have not yet been formally arrested. Ask yourself this question: Would a reasonable person in these circumstances feel free to leave? Do you feel free to leave? Some have suggested asking the officer “Am I being detained?” While that’s not too bad, bear in mind that the subjective intent of the officer plays no role in the analysis of whether or not you are in custody for Miranda(1) or 38.22(2) purposes. My suggestion is to cut to the chase and simply ask the officer “Am I free to leave?” And if he or she says “NO,” then tell them you refuse to answer any more questions and STOP TALKING.


1. Miranda v. Arizona, 384 US 436, 1966

2. Chapter 38, Article 38.22, Texas Code of Criminal Procedure