Remember, even if you are doing nothing wrong, there are a number of different outcomes that can occur from a police encounter. The short list includes:
1) No action, no problems;
2) A warning or citation;
3) An arrest and/or criminal charges.
Exercising your rights in ways such as asking the officer if you are free to leave, declaring your right to remain silent, or asserting your right to a lawyer can result in you getting arrested, held in jail pending charges, or some other negative police encounter. In other words, when you exercise your rights, you should expect that law enforcement will exercise their police powers.
It is important to understand that police have much discretion when interacting with subjects or persons they are investigating. Their job is to enforce the law, not protect your constitutional rights. They will be observing the behavior of the subject they are investigating when they are determining what action if any to take.
Understanding when to assert your rights is critical. Each situation should be evaluated individually, but the Golden Rule is do not answer any questions asked by the police that could be used against you in a Court of Law.
Obviously, there are many situations where providing general information to a police officer will result in a positive police encounter where one would never need to assert or exercise their rights. However, if you are in a situation where you need to “talk your way out of it,” it is probably best to assert your rights.
It is important to understand that to legally assert your 5th Amendment Rights, a person must verbally assert the right to remain silent. Additionally, for an individual to assert their 6th Amendment rights, they must verbally assert that they want to speak to a lawyer.
CAUTION: sometimes, one of the unfortunate outcomes of asserting your rights is an allegation of resisting and obstructing (MCL 750.81d). In addition, as of July 20, 2012, Michigan Law prohibits and criminalizes the following behavior:
1) Knowingly and willfully concealing from the officer any material fact relating to the criminal investigation;
2) Knowingly and willfully making any statement to the officer that the person knows is false or misleading regarding a material fact in that criminal investigation;
3) Knowingly and willfully issuing or otherwise providing any writing or document to the officer that the person knows is false or misleading regarding a material fact in that criminal investigation.
f the investigation involves a misdemeanor, the penalty for violation of this law is a misdemeanor. If the investigation involves a felony, a penalty is a felony.
While MCL 750.479c appears to potentially be in conflict with one’s 1st, 5th and 6th amendment rights, the exceptions in the statute do excuse the following situations from prosecution:
1) A person who was acting under duress or out of a reasonable fear of physical harm to himself or herself or another person from a spouse or former spouse, a person with whom he or she has or has had a dating relationship, a person with whom he or she has had a child in common, or a resident or former resident of his or her household;
2) A person invoking the person’s rights under the Fifth Amendment of the constitution of the United States or section 17 of article I of the state constitution of 1963;
3) A person declining to speak to or otherwise communicate with a peace officer concerning the criminal investigation.
CAUTION: Michigan Law does not allow an individual to assert that they were not guilty of resisting and obstructing an arrest because the police were wrong for arresting them. Or said another way, a defendant can’t assert that they were justified in resisting the police officers arrest. In People v. Ventura, 262 Mich.App. 370, 686 N.W.2d 748 (2004), the Court of Appeals held that the Legislature’s enactment of MCL 750.81d was an affirmative choice to modify the traditional common-law rule that a person may resist an unlawful arrest. Or said another way, the only defense available to a person charged with resisting and obstructing charges is: I did not resist and obstruct.
Recently the Michigan Supreme Court took issue with this analysis and modified a person’s justification for resisting arrest in situations where their private rights are illegally invaded by the police. In People v. Moreno, 814 NW 2d 624 (2012), the Michigan Supreme Court reviewed whether the defendant was properly charged with resisting and obstructing a police officer under MCL 750.81d after the defendant struggled with officers who had entered his home unlawfully.
In coming to its conclusion, the Michigan Supreme Court recognized the Michigan citizens’ common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas. Specifically the Court found that when the Legislature enacted the statute MCL 750.81d it did not have the intent to abrogate this common law right.
“Therefore, we overrule People v. Ventura, 262 Mich.App. 370, 686 N.W.2d 748 (2004), to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, we reverse the judgment of the Court of Appeals and remand this matter to the trial court.” People v. Moreno, 814 NW 2d 624
In conclusion, any police encounter, even when a person is doing nothing wrong, has potential legal consequences. Unfortunately, asserting one’s rights can become the precipitating factor for these consequences. In addition, Michigan case law has been established that narrows the defenses available for those accused of crimes due to asserting their rights. It is important to fully understand the potential legal consequences of asserting one’s rights, as well as the defenses available should your resistance be met with an arrest and criminal charges.
