5 - Beyond Miranda’s Reach: How Stop-and-Frisk Undermines the Right to Silence

Summary

Some courts don’t recognize a right to silence during Terry stops. It’s legal now in some jurisdictions for police to arrest individuals for refusing to answer their questions. That’s court-approved retaliatory arrest. While the law governing pre-Miranda silence remains murky, the reality is clear: the teenagers we train can’t successfully invoke their right to silence during a stop-and-frisk without risking retaliation (whether legal or illegal). Court-sanctioned lies compound the difficulty in navigating police stops. When I train teenagers, my law students and I tell them that police are allowed to lie during Terry stops and at the police station. This fact confuses the teenagers we train. “If the officers will lie and say that I consent, why should I bother telling the officer that I don’t consent to searches?” Why learn one’s rights at all? As one teen put it, “The cop will just say I waived my rights no matter what I do.” Terry v. Ohio justified stop-and-frisk on the basis that police would use these stops to gather “voluntary” statements. But statements are not “voluntary” when made under threat. Once we acknowledge this, we see that Terry was built on a lie.