Responding to Questions Before an Arrest

Does a person have to respond to police questions if he or she hasn’t been arrested? Typically, no. A police officer cannot arrest a person simply for failure to respond to questions.

The Fifth Amendment to the U.S. Constitution guarantees the “right of silence.” This means that unless a police officer has “probable cause” to make an arrest or a “reasonable suspicion” to conduct a “stop and frisk,” a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should not answer questions, at least until after consulting an attorney.

However, there are several exceptions to this rule.
Loitering. The “right to silence” rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as “wandering about from place to place without apparent business, such that the person poses a threat to public safety.” Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person’s activities. If the person fails to comply, the officer can arrest the person for loitering.
Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification — usually a driver’s license and the vehicle registration. A driver’s refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.

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