1. How are they supposed to know you even have a cell phone if it's in your pocket and you're pulled over?
-bit
"They" don't - although with near universal ownership these days, it's a fairly safe assumption that most people are carrying one.
I mean, do they say, "Do you have a cell phone we can search?" and you obligingly say, "Oh yes, and I don't want you to know that, but I certainly do and it's right here in my coat pocket."
They can and do say that - and here's where it gets complicated because:
a) You do (at least for now) have the constitutional right (in the US) to refuse to talk to the police.
b) However, if you do talk to the police, you cannot legally make a false or potentially misleading statement (i.e. lie) to them. That's a criminal offence. So if you say
anything at all to the police, it needs to be truthful - and is best done
only with an attorney present.
A common police ploy is to trip you up by getting you to say something insignificant but obviously untrue and use
that as an excuse to detain or arrest you. Without your attorney present, a court will only have your version
and the police version of what you said to them. In in absence of an attorney, the police version of what was said will prevail in court.
c) Refusing to speak to the police is
always your safest bet
as well as your constitutional right. HOWEVER in some jurisdictions, police have begun to assert (and some judges agree)
that legally refusing to talk to the police establishes grounds for suspicion (i.e. probable cause) - and in a few extreme cases, can be considered
tantamount to an admission of guilt!
That's a very scary development. Fortunately, it's been largely confined to places where the police are already out of control and the courts seem reluctant to rein them in. Time will tell if it becomes more commonplace in the former 'Land of the Free.'
------------------------
Spend about 45 minutes watching
this video by Regent Law professor James Duane. It may be the best time investment anybody could make in light of what's going on in the good old USA these days.
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