If stopped by the police, what details do I have to tell them about a prior arrest?

January 11, 2012 2:08 PM

If stopped by the police, what details do I have to tell them about a prior arrest?

You are not my lawyer.

About 18 months ago I was arrested on controlled substance and weapons charges. For what it's worth the charges were:

-misdemeanor possession of a controlled substance 3rd degree for mushrooms
-misdemeanor possession of a violent weapon in the 7th degree for a dagger that my friend owned that I was completely unaware was A: in the car, or B: illegal
-violation possession of marijuana

After some work my lawyer got them to reduce the charges and I pled guilty to:

-violation possession of marijuana
-violation disorderly conduct

I was told by my lawyer (public defender who I don't really have the ability to get back in touch with) that with this reduction of charges I would not have a criminal record that would bar me from jobs. The only issue would be if I needed to get more federal financial aid, but I already have a terminal degree so I'm not worried about that. I know that if I'm asked on a job application if I have a criminal record, I can say no because I was never convicted of the criminal charges

I also know that my fingerprints and mugshot will always be in whatever computer databases exist for law enforcement and that there will be a record showing that I was once arrested.

My question is:
How much do I have to disclose to a police officer if asked "have you ever been arrested"? For example, back before this happened, I used to have a car, and I liked to drive fast. When I would get pulled over, occasionally the police officer would ask if I had "been in any trouble before" or if I had ever been arrested before. What's the correct way to answer that question now?
Assuming I have to tell them that I have indeed been arrested, if they ask why I was arrested, what do I respond? Do I tell them the actual conviction (non criminal violations), or do I have to tell them the original misdemeanor charges?

I hadn't thought much about this until I had attended a couple of OWS events, and realized that with my history, I may want to step lightly around some of the civil disobedience.

Throwaway email address at:
[e-mail]

posted by anonymous to Law & Government (32 answers total)

I assume you're in the USA? IANAL, but you always have the right to remain silent - just calmly and politely tell the officer that you prefer not to answer. You don't have to answer police questions, except sometimes in some places to identify yourself/show ID.

Of course, you also have the right to tell them if you want to. Others with experience may be able to advise you on the relative merits of the outcomes of those choices.
posted by Salvor Hardin at 2:17 PM on January 11, 2012

IANAL, but you of course have the right to remain silent if you're in America, but you're more likely to avoid further trouble if a cop questions you by saying:

Q: Have you ever been arrested?
A: Yes, but I was released without criminal charges.

Q: Have you ever been in any trouble before?
A: No, officer.
*Note: "trouble" is subjective.

Not answering makes you look bad to a cop who's a jerk. Answering something boring like the above will end the line of conversation.
posted by juniperesque at 2:38 PM on January 11, 2012 [1 favorite]

How much do I have to disclose to a police officer if asked "have you ever been arrested"?

Nothing. Just stare back at them silently.
posted by rhizome at 2:43 PM on January 11, 2012 [1 favorite]

Well, maybe not "stare," but simply not answer.
posted by rhizome at 2:44 PM on January 11, 2012 [1 favorite]

Don't talk to the police

(the usual wisdom is that you can read a transcript quicker than you can watch a video, but this guy talks SO FAST...)

This guy is an extremist on the subject, and I'm a believer that you have to read the situation. I have skated past minor traffic situations by being candid with an officer, but OTOH I think this guy's basic advice is spot on in any situation where you suspect the officer is trying to make you for something serious.
posted by randomkeystrike at 2:55 PM on January 11, 2012 [10 favorites]

The only words that should come out of your mouth are "Am I free to go?" and if the answer is "No" then you should say "I would like to speak to an attorney."

Is this more inconvenient and confrontational? Yes. Will it win you friends among Our Boys In Blue? No. Will you end up cooling your heels in a holding cell for an inconveniently lengthy and frightening amount of time? Probably. Will it make it more likely that the charges will be dropped? Yes, it will. The cops are not your friends, not your allies, not there to do you a solid. They are there to arrest you on as many charges as possible. Don't make their jobs any easier.
posted by BitterOldPunk at 2:57 PM on January 11, 2012 [11 favorites]

You don't have to tell them a goddamn thing.
posted by Brittanie at 3:01 PM on January 11, 2012 [2 favorites]

IANYL but concur you need not answer and I for one would not. My suggested script is:

Q: Have you ever been arrested?
A: I am sorry, officer, but I don't want to respond to that question.

Q: Have you ever been in any trouble before?
A: I am not sure what you mean, officer, but again, I decline to respond to that question.

Not answering alerts the officer you know your rights. Courtesy keeps the officer from feeling antagonized.

In short, assert your rights politely and without snark. Keep being polite and uninformative and you'll soon be on your way again.
posted by bearwife at 3:01 PM on January 11, 2012 [6 favorites]

ETA: what everyone else said, basically.
posted by Brittanie at 3:02 PM on January 11, 2012

If you live in a big city you might have a local copwatch group that potentially runs "know your rights" trainings and can give you information on how to interact with police. You might also want to check out the "Know Your Rights" brochure from the National Lawyers Guild, which has information on dealing with local law enforcement.
posted by andoatnp at 3:18 PM on January 11, 2012

Here in the US you don't have to respond to that type of question. It doesn't even have anything to do with their investigation. The question is used to try and profile you or try to get you to admit to something that you may have done wrong.

I would respond to a question like that by saying that, "I am not a criminal" and leave it at that. The question is irrelevant to whether they are going to charge you with something or not.
posted by JJ86 at 3:29 PM on January 11, 2012

This guy is an extremist on the subject,

It may be worth noting that there was a speaker immediately following him who was a cop who said first thing, pretty much, "What he said."
posted by cmoj at 3:33 PM on January 11, 2012 [5 favorites]

Were you put on probation when convicted? I was convicted of a misdemeanor drug charge in 1996 and was put on unsupervised probation for 3 years. One of the probation requirements was that I inform any law enforcement who contacted me that I was on probation and why.
posted by buggzzee23 at 3:40 PM on January 11, 2012 [1 favorite]

Nthing "Don't talk to the cops without a lawyer present, having previously been advised by the lawyer to talk to them."

If nobody answered questions from cops, then not talking to the cops (which is sensible and within your rights, even if you've done nothing illegal) would no longer make the cops think ill of anyone; silence would just be standard behavior. As long as the relationship between the police and the public is basically adversarial, it is in the public interest to avoid letting the police think that they can get away with any tricks.

For your own sake and for everyone else's, say as little as possible, and say nothing with any real content. See bearwife's answer upthread.
posted by kengraham at 3:49 PM on January 11, 2012

bearwife has it correct.

You are not required to answer anything a police officer asks you. However if you dont then you are on his/her radar and realistically they can detain you (although they do have to justify it down the line) if they really feel like it. Be polite, try not to overtly lie (what you say to a police officer can be admissable as evidence, even if you are not formally arrested at the time), and assert your rights.

Verified by my brother the cop.
posted by elendil71 at 3:53 PM on January 11, 2012 [1 favorite]

I have skated past minor traffic situations by being candid with an officer

Post hoc ergo propter hoc? Seems likely.

A: I am not sure what you mean, officer, but again, I decline to respond to that question.

Pfft, it's not Congress. Silence is best, what are you going to say when they respond with, "What's the matter, are you afraid of me? Do you have a $verbal_judo_technique?"
posted by rhizome at 3:55 PM on January 11, 2012

However if you dont then you are on his/her radar and realistically they can detain you

Wrong. Exercising your rights is not probable cause.
posted by rhizome at 3:56 PM on January 11, 2012

Also, of course the cop is going to recommend being "polite." Not that they're trying their darndest to talk you into incriminating yourself and/or getting arrested, which I guess is not considered rude anymore.
posted by rhizome at 3:57 PM on January 11, 2012

I like the answer David Carr (of NYT fames) uses (in his druggie autobio), something to the effect of "I'm sorry officer, I'm not going to help you with that." Polite, honest, and evasive.
posted by okbye at 5:15 PM on January 11, 2012

However if you dont then you are on his/her radar and realistically they can detain you

Wrong. Exercising your rights is not probable cause.
posted by rhizome at 6:56 PM on January 11 [+] [!]

Well in theory (or as I call it, Fantasyland), that it true. However, the law is sufficiently vague in a number of areas - especially traffic cases - where a reason to detain you can quite easily be found. I support the "don't talk to cops" line, and generally works well in your favor in the long run, but in the short run, it's going to cost you some time.
posted by horsemuth at 5:30 PM on January 11, 2012 [4 favorites]

Bearwife has it. Polite but uninformative. Decline to answer questions, do not consent to a search (if that comes up), and make sure that you use phrasing which is polite but also unambiguous. "I decline to answer that question, sir." "No, sir, I do not consent to a search."

Said in a calm, clear, and respectful tone those two sentences have had me quickly on my way in many situations where it might well have been otherwise.
posted by Scientist at 6:02 PM on January 11, 2012 [1 favorite]

Never. Tell. The. Police. Anything. You gain nothing at all by being cooperative, as long as you don't actually interfere with police business or resist arrest. Do not talk. When they tell you it is in your best interest to cooperate, that things will go easier, they are lying.
posted by Aversion Therapy at 7:36 PM on January 11, 2012

It may be worth noting that there was a speaker immediately following him who was a cop who said first thing, pretty much, "What he said."

I didn't say I disagreed with him or that I thought he was wrong; I was just characterizing him as adamant; not admitting of any exception. I think there are situations (routine traffic stop, or a streetside discussion where there's no reason to suspect that major shit is about to hit the fan) where a reasonable amount of courtesy, including answering a basic question or two, has a fair chance of getting you OUT of trouble.

The attorney in his speech, however, as well as the cop, were talking about criminal interrogations where one is the subject, or could be the subject. You take the attorney's device to the nth degree, you could well draw greater attention to yourself. I guess one has to weigh the odds. I've been pulled over a couple of times where I was actually speeding due to a misreading of a situation (like not seeing a construction sign), and I feel that the fact that I admitted what happened from the word go got me a warning where I could have gotten a ticket. But then, I felt that I had a ticket from the moment the guy lit me up, so what did I have to lose by talking to him?

Likewise, if you see a couple of guys boosting property out of a house while you're walking the dog, are you going to talk to the police if they drive by and ask you if you've seen anything? Personally, I would, because a) I would rather see thieves caught than not caught, and b) I feel the chance that the cops will somehow decide to finger me for the job are neglible. I will admit that if I were darker skinned and lived in a bad neighborhood with a crooked police force, I might weigh the odds differently.

As to OP's question, I feel that the question would always be out of line, that nothing good could come of answering it, and would agree with the advice given above about politely declining to answer.
posted by randomkeystrike at 7:37 PM on January 11, 2012

I have skated past minor traffic situations by being candid with an officer

Post hoc ergo propter hoc? Seems likely.

Perhaps it was merely Ex aequo et bono
posted by randomkeystrike at 7:46 PM on January 11, 2012

IANAL.

The interaction between a LEO and a civilian can go in one of two ways. One: the LEO is not looking to get you in trouble, and two: he'd like to nail you in some way. Both parties understand that. Here's how you handle it. You cooperate in one case, not in the other, and you let the officer understand this - discreetly. Say, you are pulled over in a vehicle.

If the officer confines himself dealing with the immediate issue at hand - the reason for the stop and your legal duty to identify yourself, you cooperate. Your cooperation is to follow physical instructions (hand position etc.), and providing documentation. The second it goes outside of this, you don't cooperate, but do it in such a way that the LEO understands that you are not doing it in order to be combative, but because you understand that he's leading you on (i.e. trying to nail you), and it would be natural for any human not to cooperate in his own destruction - that's understandable to all, including a LEO. So, "do you know why I stopped you?" you answer "no, officer"; "would you open the trunk for me, please?" "no thank you, officer - I think you have my driver license and insurance documents, is everything OK? Am I free to go?" Your tone should be polite and friendly, and without any hint of hostility. "Why don't you want to open the trunk?" "no thank you, officer - I think you have my driver license and insurance documents, is everything OK? Am I free to go?" "where are you going?" "no thank you, officer - I think you have my driver license and insurance documents, is everything OK? Am I free to go?" "where are you coming from?" "no thank you, officer - I think you have my driver license and insurance documents, is everything OK? Am I free to go?"

"Have you ever been arrested?" "Thank you, officer - I think you have my driver license and insurance documents, is everything OK? Am I free to go?"

"Have you ever been in any trouble before?" " "Thank you, officer - I think you have my driver license and insurance documents, is everything OK? Am I free to go?"

If he says you are not free to go "thank you officer, I have nothing else to say without the presence of a lawyer." And then you fall silent - except to provide means to identify you and contact you in the future - just your name and address (this depends on the state).
posted by VikingSword at 9:30 PM on January 11, 2012 [3 favorites]

If you are on probation you are not afforded many of the same rights that those above are stating you have. You are required to inform the officer of your probation status and you also loose your right to refuse the search of you or the vehicle.

Finally if you pleaded guilty to a crime you have a record.
posted by pianomover at 10:31 PM on January 11, 2012

Pianomover, your answer is uninformative and plain wrong. Probationers do have rights. Those rights can be limited somewhat on a state by state basis. Perhaps in some states you have to tell the officer you're in probation. It isn't that way in my state, though (Oregon)**. And yes, you can refuse a search by a police officer, even if you're on probation, but you take the gamble that your refusal will be a violation of your probation.

Also, while it's technically true that "if you pled guilty to a crime you have a record", if you plead guilty to a violation, it's not a crime. So you don't have a criminal record.

To the OP: This is not legal advice, as you well know, but you might want to look into whether you can get the record of your arrest removed through expunction or whatever similar process exists in your state.

** There's even some US Supreme Court cases that talk about the rights that probationers still have. I'm not as up on my federal con law analysis, though, because Oregon's approach is so much better at protecting individual liberties.
posted by Happydaz at 12:49 AM on January 12, 2012

Well in theory (or as I call it, Fantasyland), that it true.

In your superior reality, can you be arrested for not revealing prior arrests?
posted by rhizome at 1:01 AM on January 12, 2012

You are required to inform the officer of your probation status and you also loose your right to refuse the search of you or the vehicle.

You're thinking of parole.
posted by rhizome at 1:04 AM on January 12, 2012

Well in theory (or as I call it, Fantasyland), that it true.

In your superior reality, can you be arrested for not revealing prior arrests?
posted by rhizome at 4:01 AM on January 12 [+] [!]



I actually view your reality as superior, but unfortunately, mine is the one that the cops actually live in. Your original reply that I quoted was in response to someone who stated that asserting your 4th Amendment rights will "put you on their radar", which it will, and that you can be realistically detained, not "arrested" as you state in your latest comment. Yes, you are correct that you cannot be detained for asserting that right, specifically, but do you seriously believe that you can't then be detained because the sticker in your window blocks your vision, or the air freshener in your mirror is a hazard, or the chip in your window is dangerous, or you have a crack in your taillight, etc? Again, I agree with not talking to the cops, I'm just saying that what happens when you don't choose to cooperate is that cops have a multitude of other ways to detain you, which they will not fail to exercise if detaining you is what they want to do. I just want the person to be aware of what to reasonably expect, and to let them know that when not cooperating with cops, the officer's response is not usually "oh, sorry to disturb you sir/madam. Have a good night!"
posted by horsemuth at 7:47 AM on January 13, 2012

Your original reply that I quoted was in response to someone who stated that asserting your 4th Amendment rights will "put you on their radar"

From what I know about law enforcement, all civilians are "on their radar" by default. I don't fall into the psychological trap that it's my responsibility to get off their radar when I've done nothing wrong, and it's not wrong not to tell them you have been arrested before. So what if they take your ID and find you've been arrested before, what then?

Bringing this back on topic, what exact legal implications would result in detainment by not answering the question of whether you've been arrested before? Because I didn't answer a question? These are the kinds of things police departments spend tax dollars settling.

I know what you're saying, though, cops can be dicks if they want to. Well sure, but if you know not to talk then they have fewer (legitimate) things to be dicks about. Illegitimate reasons can't be defended against, and a cop who is going to be a dick for exercising your rights is going to be a dick anyway. The mechanism you describe for getting off their radar simply does not exist. Last but not least, I'm not saying to be antagonistic. "I don't have to answer you, pig!" type crap is never helpful.

Ultimately, think about what you're saying: if there are legal ramifications for not answering the question, that means the 5th Amendment is in play (unless the Feds are involved). Your attachment to detainment is a quibble, since detainment is just a reason to hold someone longer than is typically allowed ("reasonable time" or some such). I'm no lawyer, but it isn't legally significant without something else in the mix. So if you want to argue the details of detainment without arrests being involved, I don't have to be involved.
posted by rhizome at 11:16 AM on January 14, 2012 [1 favorite]

Shit. 5th Amendment. Damn phone keyboard and lack of proofreading. Anyway, you are correct. There is nothing illegal about refusing to tell the cops about prior arrests. And the only implication really concerns whether you have anything else to be worried about being found in the car or on your person ( to which, a reason may be found to do that if you choose to answer their question anyway) . There is a much higher bar to arrest you vs. detain you. So, in short: refusing to answer significantly increases the chances that you will be detained for a variety of "other" reason, however, provided that there is nothing illegal to be found, you have not increased your chances of arrest. MeMail if you want to continue this. I don't want to turn this post into our conversation or to have to keep checking in here. If not, thanks for the conversation!
posted by horsemuth at 11:57 AM on January 15, 2012