View Full Version : Invokeing the 5th: your silence can and will be used against you!
If you have not seen this, important reading. It appears unless you specifically invoke the 5th, you're not protected by simple silence:
Supreme Court ruling on 5th Amendment puts you at even more risk
The Supreme Court recently ruled in Salinas v. Texas that your silence can be used against you.
As you probably know, once you are arrested, the police are required to read you the Miranda warning which advises you of your 5th Amendment rights: You have the right to remain silent, anything you say or do may be used against you in a court of law, and so on.
This case asked the question, what about remaining silent before you are arrested? The defendant, Salinas, had not been under arrest when police started questioning him. At some point in the questioning, he just stopped talking.
The Supreme Court said that since Salinas had not invoked his Fifth Amendment protections, the police could use his silence against him. We think this is a bad ruling.
In his dissenting opinion, Justice Stephen Breyer says this:
"I would hold that Salinas need not have expressly invoked the Fifth Amendment. The context was that of a criminal investigation. Police told Salinas that and made clear that he was a suspect. His interrogation took place at the police station. Salinas was not represented by counsel. The relevant question—about whether the shotgun from Salinas’ home would incriminate him—amounted to a switch in subject matter. And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder."
We agree. As citizens, we should not be required to invoke a right in order to enjoy its protection. But regardless of what we think, the ruling is what it is. And it's just one more reason to know your rights and exercise them intelligently.
You can invoke the 5th Amendment at any time and should do so, even before arrested.
http://www.secondcalldefense.org/self-defense-news/supreme-court-ruling-5th-amendment-puts-you-even-more-risk
Full court ruling:
http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf
OMFG!!!!!
You have got to be kidding? Next you will be arrested for having a firearm if you don't tell the police that you are enacting your 2nd Amendment right and arresting reporters for publishing stuff that does not state that they are doing so because it is their 1st Amendment right.........Crazy I tell you, just plain crazy.
Holy shit.
Someone with more knowledge of the law than me tell me this can't hold up.
I think that the interpretation of this ruling is a little on the paranoid side.
If he was be interviewed prior to arrest then clamed up he need not invoke any such clause.
If they are stating he was arrested based just on his silence I call "bull". He was arrested for other reasons.
After reading the decision I see that they were admitting his behavior/reaction to the question into evidence. Thats common practice when questioning suspects.
If he invoked his 5th amendment rights I'm sure the behavior would still have been admitted.
My question is was there any physical evidence linking him to the crime besides testimonial evidence.
Moral of the story: Try not to look guilty when your being questioned by police.
Sent from my SCH-I535 using Tapatalk 2
Sounds like they presented the jury with the "fact" that he clammed up during questioning and portrayed him as guilty. I would like to think that they also had some ballistic evidence or other concrete evidence as well that linked him to the crime.
The ruling itself does seem like unless you specifically state you are being silent due to the 5th amendment protections your silence can be brought in front of a jury and used as an emotional play; but then I'm sure that if you specify that you're claiming the 5th they will use that against you by showing that you have information that could incriminate you. Classic losers situation for the guy in the government's cross hairs. Gotta love it.
I think that the interpretation of this ruling is a little on the paranoid side.
I have been looking around find that's the general feeling and I don't see the paranoia personally. It seems one needs to invoke the 5th specifically even if just detained. There's other cases cited also where people choosing to remain silent (thinking it the best course of action) had it used against them, and would not have been had they specifically invoked the 5th vs assume is automatically applied, which (apparantly) it does not. I asked a top defense attorney friend of mine (Rick Collins) and he said:
"The Court held in this 2012 case that 5th Amendment protection is not "self-executing" (automatic); you have to "claim" it. So, "You have the right to remain silent" should, according to this Court, REALLY be "You have the right to speak up and affirmatively CLAIM the right to remain silent." Just not talking isn't enough."
From the ABA:
A person may not invoke the right to remain silent by being silent and not responding to police questions.
That seemingly oxymoronic statement was the holding in Salinas v. Texas, (PDF) which the U.S. Supreme Court issued June 17. The result is that unless a person explicitly invokes the right to remain silent in the face of police questioning before an arrest, prosecutors can use that silence as evidence of guilt at trial. The bottom line is that criminal defense lawyers should advise their clients to be explicit that they are invoking their right to remain silent whenever they wish to refuse to answer police questions.
http://www.abajournal.com/news/article/chemerinsky_silence_is_not_golden_supreme_court_says/
Under this ruling can a judge instruct a jury that silence can be considered as a mark of guilt? THAT would be the crux of the argument it would seem.
Doc Safari
10-14-14, 17:27
My objective opinion says that this "corrects" perceived unnecessary constraints foisted on law enforcement by the Miranda warning.
My gut tells me that the Republic just ended and you can mark this day on your calendar.
Just a matter of time.
The SCOTUS already ruled that Eminent Domain can be used for "private use" despite the very specific wording of the Constitution to prevent exactly that outcome.
Now they are putting conditions on Fifth Amendment protections which opens the door for dramatic First Amendment abuses.
Eventually the government will be able to force US citizens to quarter troops in their home under "special conditions."
This is amazing, it isn't simply an "interpretation" of an amendment in a way never intended or in opposition to the Federalist Papers, this is actually a specific right being denied if a "qualifier" or "special conditions" are invoked. But the Patriot Act was already doing that so this is again, hardly surprising.
The government had learned that they can take what we are unwilling or unable to defend and are banking on the fact that the majority of people won't even understand what is being taken.
Outlander Systems
10-14-14, 17:33
Fork...meet ass.
Doc Safari
10-14-14, 17:45
Eventually the government will be able to force US citizens to quarter troops in their home under "special conditions."
If I'm not mistaken NDAA, or the Patriot Act, or some executive order giving the president emergency powers to seize property already authorize this.
I should of stayed in bed. Today just keeps getting better and better it seems..
I should of stayed in bed. Today just keeps getting better and better it seems..
Not been my best day either.
JBecker 72
10-14-14, 18:21
So you have to physically speak in order to exercise your right to remain silent? Seems legit.
Moose-Knuckle
10-14-14, 18:58
They allowed Ebola here, is the errosion of our rights that much a surprise?
As I've said till I'm blue in the face, this is merely the calm before the storm . . .
Cagemonkey
10-14-14, 19:02
They allowed Ebola here, is the errosion of our rights that much a surprise?
As I've said till I'm blue in the face, this is merely the calm before the storm . . .I'm surprised you've held on this long. You must be purple by now.
Moose-Knuckle
10-14-14, 19:32
I'm surprised you've held on this long. You must be purple by now.
Nah, after a soap box I get put on straight 02.
SomeOtherGuy
10-14-14, 20:40
Just FYI, this ruling came out almost four months ago (EDIT: four months and a year, sigh). It got a little press at the time, but not much. Here's another angle on it:
http://www.forbes.com/sites/insider/2013/06/19/the-supreme-courts-decision-in-salinas-v-texas-implications-for-white-collar-investigations/
I can't square the ruling with the plain text of the Constitution or many decades of legal jurisprudence. However, I could say the same about numerous rulings and laws that have been promulgated in the last 5, 10 or 20 years. The full weight of statists is coming down to destroy any meaningful protections in the Constitution, and I do not mean only those in the Bill of Rights.
That's some bullshit right there
ForTehNguyen
10-14-14, 20:49
more than just 4 months ago, 2013
First, I do not think that silence alone is equivalent to probable cause for arrest, if someone is to be arrested/charged it has to be based on sufficient evidence.
Second, as I am sure many here already know, Miranda requires both custody (not being free to leave, either physically or in reasonable perception) and interrogation (questions intended to elicit statements of guilt). So one would have to be in a situation where both of these are present. This would mean in non custodial encounters, or without interrogation, there would be no need to invoke. That does not appear the case here, however.
I think the crux of the matter here (and I may be wrong) is that the interpretation of Miranda only requires the person being questioned be aware of their rights. It is up to them to make it known to the police they wish to exercise that right. At that time, that is the signal for questioning to end. Without this positive indication the suspect wishes to invoke, there is no way for the interrogator to determine the exercise of a right vs. odd behavior (a lack of responsiveness). Without being able to positively discern which is occurring, I can see how the behavior could be taken into consideration (with other more concrete evidence) as an indicator of possible guilt. This would be similar to obvious nervous cues, or improper affect being considered when weighing probable cause.
Again, I am not saying silence alone is probable cause, but absent clearly invoking one's right, there is no way to identify it.
In other rights, there is behavior or objects which should make it reasonably clear what one is doing. Your speech or signage is clear indication of your First Amendment, the gun on your hip the Second Amendment. Silence however is harder to judge. You may be exercising the Fifth, or you may be batshit crazy and just hacked your wife to death. Absent the former, the latter can be at least considered.
First, I do not think that silence alone is equivalent to probable cause for arrest, if someone is to be arrested/charged it has to be based on sufficient evidence.
Second, as I am sure many here already know, Miranda requires both custody (not being free to leave, either physically or in reasonable perception) and interrogation (questions intended to elicit statements of guilt). So one would have to be in a situation where both of these are present. This would mean in non custodial encounters, or without interrogation, there would be no need to invoke. That does not appear the case here, however.
I think the crux of the matter here (and I may be wrong) is that the interpretation of Miranda only requires the person being questioned be aware of their rights. It is up to them to make it known to the police they wish to exercise that right. At that time, that is the signal for questioning to end. Without this positive indication the suspect wishes to invoke, there is no way for the interrogator to determine the exercise of a right vs. odd behavior (a lack of responsiveness). Without being able to positively discern which is occurring, I can see how the behavior could be taken into consideration (with other more concrete evidence) as an indicator of possible guilt. This would be similar to obvious nervous cues, or improper affect being considered when weighing probable cause.
Again, I am not saying silence alone is probable cause, but absent clearly invoking one's right, there is no way to identify it.
In other rights, there is behavior or objects which should make it reasonably clear what one is doing. Your speech or signage is clear indication of your First Amendment, the gun on your hip the Second Amendment. Silence however is harder to judge. You may be exercising the Fifth, or you may be batshit crazy and just hacked your wife to death. Absent the former, the latter can be at least considered.
The gun on your hip may be what you are about to (or already did) commit mass murder with, if you are in fact bat shit crazy
The gun on your hip may be what you are about to (or already did) commit mass murder with, if you are in fact bat shit crazy
True, but without getting into a discussion on disability, the mere presence of the weapon without clear indicea of a criminal act is not actionable. It is not subject to interpretation.
To be honest, it is far safer to verbally invoke the Fifth. It does not cost anything, it makes clear your silence, and it is a right...the exercise of which is not indicative of guilt.
Belmont31R
10-14-14, 23:39
True, but without getting into a discussion on disability, the mere presence of the weapon without clear indicea of a criminal act is not actionable. It is not subject to interpretation.
To be honest, it is far safer to verbally invoke the Fifth. It does not cost anything, it makes clear your silence, and it is a right...the exercise of which is not indicative of guilt.
Watch COPS enough and you'll see why it's important. No offense to our LEO here but they are taught or learn that certain ways of asking questions or portraying the situation in a different light than it really is works to their advantage. Notice they don't have to ask if it's ok to question you but we have to jump through hoops to use our rights that have been on paper for over 200 years. That should be a clue. The direction this gov is headed is about expanding their powers and restricting our rights. Maybe people should have complained when you have to fill out a form to use the 1st and 2nd amendments. A verbal use of the 5th is still better than what others face. :-(
His first mistake was speaking to them in the first place.
I do not think one should have to make it aware that they are using a RIGHT. Whether they say they are invoking the Fifth or not, their silence and behavior is going to be used against them.
Eroded are our "unalienable" rights. It is almost like a joke or a gag. The hotdog tied at the end of the stick strapped to ones back..
His first mistake was speaking to them in the first place.
Yes.
more than just 4 months ago, 2013
Well it was all over the news for months...oh wait...that was Trayvon Martin.
To be honest, it is far safer to verbally invoke the Fifth. It does not cost anything, it makes clear your silence, and it is a right...the exercise of which is not indicative of guilt.
You are correct. But you shouldn't be required to do so to enjoy Fifth Amendment protections that you were born with anymore than you need to own a newspaper to enjoy freedoms of the press. The SCOTUS decision is a bad one and it gets worse from here.
First, I do not think that silence alone is equivalent to probable cause for arrest, if someone is to be arrested/charged it has to be based on sufficient evidence.
Second, as I am sure many here already know, Miranda requires both custody (not being free to leave, either physically or in reasonable perception) and interrogation (questions intended to elicit statements of guilt). So one would have to be in a situation where both of these are present. This would mean in non custodial encounters, or without interrogation, there would be no need to invoke. That does not appear the case here, however.
.
Unless I'm reading it wrong, that does appear to be the case
See post:
https://www.m4carbine.net/showthread.php?159496-Invokeing-the-5th-your-silence-can-and-will-be-used-against-you!&p=2007302#post2007302
You are correct. But you shouldn't be required to do so to enjoy Fifth Amendment protections that you were born with anymore than you need to own a newspaper to enjoy freedoms of the press. The SCOTUS decision is a bad one and it gets worse from here.
One should not have to invoke a Right for it to exist, and there's no other Rights one has to invoke for them to implicitly exist as far as I know. This ruling sh&% on the Const. and it's intent. Having said that, safer (and now essential it appears) to verbally invoke it. The part I find most troubling is, you need to invoke even if not arrested. I can see the need to invoke it if you're being arrested and read your rights, that one should need to invoke it during any form of questioning is what's REALLY messed up here and only adds tension and potential for missunderstanding between citizen and LE. LE is going to think you a trouble making know it all tool when you invoke the 5th on what seems a very routine questioning and you as a citizen, left with little choice by this ruling. This ruling seems lose lose to street level LE and citizens.
You are correct. But you shouldn't be required to do so to enjoy Fifth Amendment protections that you were born with anymore than you need to own a newspaper to enjoy freedoms of the press. The SCOTUS decision is a bad one and it gets worse from here.
The problem is, and this is outlined in the decision, that while silence could be indicative of exercising the Fifth, it could also be indicative of attempting to construct a lie, or guilty conscience.
The officer conducting the questioning would have to consider all of the possibilities in interpreting the silence, and could not rely on assuming the silence was the exercise of a right. Personally, I have conducted hundreds of custodial interviews in serious felony cases (shootings, stabbings, robbery, poisoning, etc.). I have never had a suspect just sit silently as a manner of invoking. I have had suspects invoke before I got the door fully open, I have had them invoke after hours of talking, but they clearly invoked. Even if they were not clear in invoking, if I felt that was what they were attempting, I stopped. My point is, just sitting silent is such an uncommon exercise, it can not be immediately assumed to be the invoking of a right.
The other point brought out early in the decision is that the Fifth Amendment, by the letter, prevents one from being "compelled in any criminal case to be a witness against himself". This is not the same as a right to remain silent, which is the wording from the (comparatively) much more recent Miranda decision. So the assumption that the"right to remain silent" is native to birth is also not entirely accurate, there is no explicit Fifth Amendment right to silence, you just cannot be forced to give evidence against yourself.
Eurodriver
10-15-14, 08:53
The problem is, and this is outlined in the decision, that while silence could be indicative of exercising the Fifth, it could also be indicative of attempting to construct a lie, or guilty conscience.
The officer conducting the questioning would have to consider all of the possibilities in interpreting the silence, and could not rely on assuming the silence was the exercise of a right. Personally, I have conducted hundreds of custodial interviews in serious felony cases (shootings, stabbings, robbery, poisoning, etc.). I have never had a suspect just sit silently as a manner of invoking. I have had suspects invoke before I got the door fully open, I have had them invoke after hours of talking, but they clearly invoked. Even if they were not clear in invoking, if I felt that was what they were attempting, I stopped. My point is, just sitting silent is such an uncommon exercise, it can not be immediately assumed to be the invoking of a right.
The other point brought out early in the decision is that the Fifth Amendment, by the letter, prevents one from being "compelled in any criminal case to be a witness against himself". This is not the same as a right to remain silent, which is the wording from the (comparatively) much more recent Miranda decision. So the assumption that the"right to remain silent" is native to birth is also not entirely accurate, there is no explicit Fifth Amendment right to silence, you just cannot be forced to give evidence against yourself.
This is exactly right. Well stated, factual, and I am in full agreement.
I haven't figured out exactly how yet, but I'm pretty sure this ruling is racist. :)
Unless I'm reading it wrong, that does appear to be the case
See post:
https://www.m4carbine.net/showthread.php?159496-Invokeing-the-5th-your-silence-can-and-will-be-used-against-you!&p=2007302#post2007302
I read it as the questioning took place at a police station, and I erred on the high side when I said it sounded like a custodial encounter. Depending on where and how in a police station the interview was conducted, the suspect may or may not have felt free to leave and end the encounter. The courts have generally held that if a reasonable person would not feel free to leave, then it is custodial. I am not sure how it was done in this case, but I know a lot of people would not feel free to leave if they were taken to a police station, put in a room, and asked questions. Not saying it can not be done, but the interviewer must be careful not to inadvertently make it custodial.
I haven't figured out exactly how yet, but I'm pretty sure this ruling is racist. :)
Rights are racist. That's why we're phasing them out!
Eurodriver
10-15-14, 09:41
I vehemently disagree. Exercising your right to remain silent by being silent is all that is necessary to evoke that right, regardless of how frequently people choose to do so in such a manner. And you should never be penalized for exercising a constitutionally-protected right, which is what the SCOTUS ruling precisely allows.
Finally, the Right to remain silent is a constitutionally-protected right (see U.S. vs Dickerson).
Look at it like this: Suspect is being interviewed by LE. LE and the suspect are having a conversation that is flowing quite well. LE asks the suspect a specific question related to the crime.
Suspect pauses, hesitates, and then puts his head down. From what I've read, the SCOTUS ruling in the OP simply allows the LE to use that reaction as a basis to make a decision as to whether or not they think he is guilty (simplified majorly) instead of saying "Well, he's being silent so we're done for right now and we'll pick up when he starts talking again."
Look at it like this: Suspect is being interviewed by LE. LE and the suspect are having a conversation that is flowing quite well. LE asks the suspect a specific question related to the crime.
Suspect pauses, hesitates, and then puts his head down. From what I've read, the SCOTUS ruling in the OP simply allows the LE to use that reaction as a basis to make a decision as to whether or not they think he is guilty (simplified majorly) instead of saying "Well, he's being silent so we're done for right now and we'll pick up when he starts talking again."
I think you guys are missing the whole point here.
http://www.forbes.com/sites/insider/2013/06/19/the-supreme-courts-decision-in-salinas-v-texas-implications-for-white-collar-investigations/
"At trial, during closing argument, the prosecutor pointed out to the jury how Salinas had remained silent when asked about the shotgun, arguing that an innocent person would not have done so."
US v Dickerson basically struck down Section 3501, which was enacted by Congress as a means of getting around Miranda in federal court cases by expanding admissibility to any voluntary statement. The court refused to overturn Miranda. While the court held Miranda to be constitutional, I believe the interpretation of that is to be consistent with the values/rights set forth in the Constitution, and not part of the Constitution itself. Dickerson does not speak at all to the matter at hand here, which is the manner of employment of that right.
Just plead da FIF!!!
http://24.media.tumblr.com/72eba71aafed0d4c36774692a98c11e4/tumblr_mge84nYpme1rphkvao1_500.jpg
Lets see: If I'm being held and questioned by Law Enforcement without being arrested, I can simply invoke my 5th Amendment right to silence and all questioning will end?
Or, will the questions continue with me having to invoke my 5th A. with each and every question?
Or if I've been Mirandized, I still have to immediately invoke my 5th A. right to silence if I want to remain silent? Again, with each and every question, or does my invoking the 5th completely cover me from further being questioned?
As I understood it in the past, once Marandized, if I chose to remain silent, I could simply remain silent and that was good enough.
Obviously, I'm at a loss for understanding how this 5th A. now works.
In fact, I was under the impression the only time the 5th could be invoked was at a trial or hearing.
Averageman
10-15-14, 10:25
So what is the answer?
I'm approached by LEO, he begins to ask questions and I dont want to answer?
The old "YouTube" answer seems to be, Am I being detained? Am I free to leave? Am I under Arrest?
I don't have anything to hide, but I don't want to be stopped or questioned without a valid reason, having to invoke my 5th ammendment right to remain silent as to not incrimminate myself seems a bit over the top, to me.
The above three questions only seem to make a vein on someones head pop out, but they do make great video fodder.
Miranda applies to custodial interrogations, and once invoked (absent certain relatively narrow exceptions) requires interrogation cease. Custody and interrogation both have to be present for Miranda to apply. Miranda was a SCOTUS decision based in large part on the Fifth and Fourteenth Amendments (right against self incrimination and right to due process).
The Fifth Amendment, as stated before, states one cannot be compelled to give evidence against themselves in a criminal proceeding. It is what is traditionally cited in court proceedings, Congressional hearings, etc., often in response to specific questions. You could also cite it in an interrogation, but if you use it only for specific questions, it is not the same as invoking Miranda. Again, you would have to make that distinction clear.
Is someone here able to specifically answer my questions as they were asked?
Thanks!
In refuting your assertion that there is no constitutional basis (5th Amend.) for the right to remain silent, I referenced the majority opinion of U.S. vs Dickerson, wherein it was recognized that the right to remain silent is of constitutional origin, and protected by the U.S. Constitution.
And in Berghuis v Thompson (2010) the Supreme Court held that silence alone is not sufficient to invoke Miranda, and that the desire to invoke Miranda must be clearly stated. As this is a SCOTUS ruling, it is just as constitutional, and therefore just as protected by the Constitution as Dickerson. More importantly, it is on point to the matter at hand.
Welcome to the New Amerika, where the Constitution is no longer the Supreme Law of the Land anymore... you know, The One that Millions of us have sworn to Defend and Protect against ALL Enemies, both Foreign and Domestic....
I read it as the questioning took place at a police station, and I erred on the high side when I said it sounded like a custodial encounter. Depending on where and how in a police station the interview was conducted, the suspect may or may not have felt free to leave and end the encounter. The courts have generally held that if a reasonable person would not feel free to leave, then it is custodial. I am not sure how it was done in this case, but I know a lot of people would not feel free to leave if they were taken to a police station, put in a room, and asked questions. Not saying it can not be done, but the interviewer must be careful not to inadvertently make it custodial.
When I went through Reid interview & interrogation, this was discussed at length.
Regardless of whether the silence in Berghuis v Thompson is necessary to invoke Miranda, did the SCOTUS rule that a defendant's silence can be used against him/her in a court of law?
Not to sound snarky, but yes, in Salinas v. Texas. It is a follow on, in a manner of speaking, to Berghuis. It says that silence in a situation without arrest, and prior to Miranda being given, one's silence can be used as an indication of guilt, because the right to remain silent has not attached. Don't get me wrong, silence is still an option, and you do not have to voluntarily answer any questions, but that silence can also be viewed with suspicion, particularly in light of previous cooperation.
I admit, when I looked at the first post, I assumed the interview to be custodial, and requiring Miranda. Apparently that was not the case, even to the satisfaction of the court. I stand by my previous statements regarding invoking Miranda, but I also realize they are not as germane as I first assumed to the posted topic. My apology for any resultant drift.
Were my questions not reasonable?
Some of what I've read seems to indicate you're damned if you remain silent and damned if you speak....
So, back to my requesting: Can anyone here answer my specificquestions?
1. If I'm being held and questioned by Law Enforcement without being arrested, I can simply invoke my 5th Amendment right to silence and all questioning will end?
2. Or, will the questions continue with me having to invoke my 5th A. with each and every question?
3. Or if I've been Mirandized, I still have to immediately invoke my 5th A. right to silence if I want to remain silent? Again, with each and every question, or does my invoking the 5th completely cover me from further being questioned?
Thanks!
Holy shit.
Someone with more knowledge of the law than me tell me this can't hold up.
So you have to physically speak in order to exercise your right to remain silent? Seems legit.
It will stand up. In this case the defendant in as answering questions in a stipulated non-custodial setting. Instead of answering one question he looked down and shuffled his feet. Then continued on answering the questions. This isn't silence, this is speech in my opinion.
Just food for thought, you have a right to a lawyer, you don't get that right until you explicitly request on. You can stop questioning, answering, or whatever, but you have to exercise that right in a manner that makes it clear you intended to do so.
1st and second amendment rights are not a good comparison because by the act of speaking in a public forum it is clear and unambiguous that you are indeed expressing that right, the same action implicitly followed by the act of owning or possessing a firearm is a clear an unambiguous exercise of that right.
I don't like the wording of his opinion, but I see no reason why it should be rejected.
Were my questions not reasonable?
Some of what I've read seems to indicate you're damned if you remain silent and damned if you speak....
So, back to my requesting: Can anyone here answer my specificquestions?
1. If I'm being held and questioned by Law Enforcement without being arrested, I can simply invoke my 5th Amendment right to silence and all questioning will end?
2. Or, will the questions continue with me having to invoke my 5th A. with each and every question?
3. Or if I've been Mirandized, I still have to immediately invoke my 5th A. right to silence if I want to remain silent? Again, with each and every question, or does my invoking the 5th completely cover me from further being questioned?
Thanks!
The moment you invoke your right, especially your right to an attorney, they questioning must stop. They cannot even re-engage you for a pretty long time, or at all unless the lawyer shows up, or you personally re-engage the officer
1. If I'm being held and questioned by Law Enforcement without being arrested, I can simply invoke my 5th Amendment right to silence and all questioning will end?
Depends on how "held" you are. Berkemer v. McCarty notes that a temporary detention, where a stopped person would be released, does not constitute "custody" for purposes of Miranda, unless other factors would lead one to think that they were in custody.
Berkemer dealt specifically with roadside traffic stops, but the case has been applied to other non-traffic "Terry stop" scenarios.
My comment referred to U.S. v. Berghuis, wherein the SCOTUS does not address the fact that a defendant's silence can be used at trial. And I strongly disagree with the U.S. v. Salinas ruling for reasons already expressed. All to say that you should never talk to the police, and always invoke your 5th amendment right.
My understanding of Berghuis is that this is not directly addressed, which is perhaps why it was taken up in Salinas. Berghuis basically states that without unequivocally invoking, subsequent statements can be admissible. For example, if I question you for an hour, and you say nothing, that is not a clear invoking of Miranda. So if at a hour and one minute you make a statement, that is admissible, despite your earlier silence.
The problem is, and this is outlined in the decision, that while silence could be indicative of exercising the Fifth, it could also be indicative of attempting to construct a lie, or guilty conscience.
And the problem is that is irrelevant. It's a bad decision. Freedoms and rights sometimes means it's hard to go after bad people. Criminals definitely use their rights to the fullest advantage and are typically more well informed than people who aren't career criminals.
This is why a criminal will often lawyer up immediately and a basically honest person who did a bad thing will try to "explain things" a few hundred times hoping for an outcome where the police simply "believe and release" them.
And while I hate to see the bad guys get away with anything, if it's ever my ass in the chair for something I didn't do I'm gonna have a tough enough time proving something I probably didn't take the time to document and I don't want to have to play hopscotch games on top of that to have all my rights.
And sadly, "the truth doesn't always set you free" because sometimes you just "fit" what they are looking for. Every LEO knows somebody (usually more than a few) who looked perfect for "the guy" and he got completely jammed up and then long after the fact they got the "actual guy."
Were my questions not reasonable?
Some of what I've read seems to indicate you're damned if you remain silent and damned if you speak....
So, back to my requesting: Can anyone here answer my specificquestions?
1. If I'm being held and questioned by Law Enforcement without being arrested, I can simply invoke my 5th Amendment right to silence and all questioning will end?
2. Or, will the questions continue with me having to invoke my 5th A. with each and every question?
3. Or if I've been Mirandized, I still have to immediately invoke my 5th A. right to silence if I want to remain silent? Again, with each and every question, or does my invoking the 5th completely cover me from further being questioned?
Thanks!
To be absolutely covered without question, it might be best to say "I am invoking my 5th Amendment right to not answer any more questions. Am I being detained?" If not, leave. If you are being detained, then demand an attorney immediately and say nothing else.
To be absolutely covered without question, it might be best to say "I am invoking my 5th Amendment right to not answer any more questions. Am I being detained?" If not, leave. If you are being detained, then demand an attorney immediately and say nothing else.
Sound Advice.
glocktogo,
Thank you.
As a man who is not a criminal, never been arrested, law abiding person who admires law enforcement people, this whole thread has undermined my confidence in speaking with law enforcement for any reason what so ever.
At this point, I feel like any time an LEO asks me a question or wants to engage me in conversation, I'll invoke my 5th A.
So much for LEO/Community relations.
I now feel like all citizens are viewed as suspects - we seem to be living in a police state mentality if not reality...
The old "YouTube" answer seems to be, Am I being detained? Am I free to leave? Am I under Arrest?
The above three questions only seem to make a vein on someones head pop out, but they do make great video fodder.
Besides making a vein pop out, due to questioning someone's authority, the questions also work in the person's favor, and that's the reason for the increased blood pressure.
Police use tactics in questioning to elicit a particular response, to make the person feel as if they're obligated to answer, and use specific verbiage to make the person feel as if they're not free to go. Later on they can say, "they were free to go at anytime", yet anyone with 2 working brain cells knows that most people don't have a clue as to when they can leave and what a consensual encounter truly is. Manipulation, intimidation and word games.
glocktogo,
Thank you.
As a man who is not a criminal, never been arrested, law abiding person who admires law enforcement people, this whole thread has undermined my confidence in speaking with law enforcement for any reason what so ever.
At this point, I feel like any time an LEO asks me a question or wants to engage me in conversation, I'll invoke my 5th A.
So much for LEO/Community relations.
I now feel like all citizens are viewed as suspects - we seem to be living in a police state mentality if not reality...
You should not have had confidence in speaking with them to begin with.
You should not have had confidence in speaking with them to begin with.
And that is sad and depressing. I can remember a time when the police really were there to "sort out the facts" and make sure the innocent were protected and the guilty arrested. Law abiding citizens typically helped the police "protect the innocent" and "help catch the bad guys" by providing information or in some cases direct involvement.
NCPatrolAR
10-15-14, 18:50
I can remember a time when the police really were there to "sort out the facts" and make sure the innocent were protected and the guilty arrested.
So do I. In fact; I, along with my coworkers, remember it each time we start our shift
NCPatrolAR
10-15-14, 18:52
glocktogo,
At this point, I feel like any time an LEO asks me a question or wants to engage me in conversation, I'll invoke my 5th A.
Hopefully you never have to call 911
Alpha Sierra
10-15-14, 19:24
So do I. In fact; I, along with my coworkers, remember it each time we start our shift
You can say that to yourself all day long. It doesn't matter. It only matters what WE think.
The police profession better worry when the people who normally would be their allies no longer consider them so.
Alpha Sierra
10-15-14, 19:26
Hopefully you never have to call 911
Oooohhh, the "threat"...........
Under this ruling can a judge instruct a jury that silence can be considered as a mark of guilt when they deliberate?
I'll repost this question and maybe someone can answer it?
So do I. In fact; I, along with my coworkers, remember it each time we start our shift
And I probably should have qualified my statement with the fact that it is still like that in many locations. The point I was trying to make is that nationally the relationship seems "strained." Granted the stress originates from both parties. Ferguson as an example is hardly trying to be "fair" with the law enforcement community and actually believes they should be able to attack and shoot at officers and then when things don't go their way simply put their hands up and peacefully surrender without any incident.
You can say that to yourself all day long. It doesn't matter. It only matters what WE think.
The police profession better worry when the people who normally would be their allies no longer consider them so.
Ooooh, "the threat"...........
I'll repost this question and maybe someone can answer it?
I would imagine that as long as the silence fit within the criteria of this ruling, a judge could, if they felt a need to single out this behavior in instructions. A judge could also so instruct following an objection. Jury instructions are bit outside my grade, I have only assisted with requesting specific instructions a few times.
Also, this would have no effect on a defendant not taking the stand at trial or invoking Miranda in a custodial interrogation.
Eurodriver
10-15-14, 20:57
You can say that to yourself all day long. It doesn't matter. It only matters what WE think.
The police profession better worry when the people who normally would be their allies no longer consider them so.
Absolutely. "Oh? You're looking for a cop killer? Sorry. Didn't see anything."
Anyone who's worked the hood knows what goes down. It's always the black guy with dreads and he went "that way". The police, where I grew up, are the issue - not criminals.
Hopefully you never have to call 911
I've called 911 several times but I don't think I've talked to a law enforcement officer for any of them.
The problem is, and this is outlined in the decision, that while silence could be indicative of exercising the Fifth, it could also be indicative of attempting to construct a lie, or guilty conscience.
The officer conducting the questioning would have to consider all of the possibilities in interpreting the silence, and could not rely on assuming the silence was the exercise of a right. Personally, I have conducted hundreds of custodial interviews in serious felony cases (shootings, stabbings, robbery, poisoning, etc.). I have never had a suspect just sit silently as a manner of invoking. I have had suspects invoke before I got the door fully open, I have had them invoke after hours of talking, but they clearly invoked. Even if they were not clear in invoking, if I felt that was what they were attempting, I stopped. My point is, just sitting silent is such an uncommon exercise, it can not be immediately assumed to be the invoking of a right.
The other point brought out early in the decision is that the Fifth Amendment, by the letter, prevents one from being "compelled in any criminal case to be a witness against himself". This is not the same as a right to remain silent, which is the wording from the (comparatively) much more recent Miranda decision. So the assumption that the"right to remain silent" is native to birth is also not entirely accurate, there is no explicit Fifth Amendment right to silence, you just cannot be forced to give evidence against yourself.
It doesn't matter if it is an uncommon thing. A person should not have to specifically state they are "invoking" a right. It should ALWAYS be at play.
I would imagine that as long as the silence fit within the criteria of this ruling, a judge could, if they felt a need to single out this behavior in instructions. A judge could also so instruct following an objection. Jury instructions are bit outside my grade, I have only assisted with requesting specific instructions a few times.
My point in asking (thanks for fielding it) is that if a trial by jury is the crux of our legal system, I would think the ability to instruct a jury that silence can be interpreted as something indicative of guilt is a bit of a stretch. Sure, the jury can think independently and I'm sure often do, but it bothers me that silence---a "neutral" as far as good or bad goes---can be identified as a mark of guilt during instructions to a jury by a judge.
My point in asking (thanks for fielding it) is that if a trial by jury is the crux of our legal system, I would think the ability to instruct a jury that silence can be interpreted as something indicative of guilt is a bit of a stretch. Sure, the jury can think independently and I'm sure often do, but it bothers me that silence---a "neutral" as far as good or bad goes---can be identified as a mark of guilt during instructions to a jury by a judge.
I agree, and that is why I differentiated between this ruling and not testifying in your own trial or invoking while being interrogated.
As someone said earlier, in this case the silence was more of a behavior. The suspect was cooperating in a non custodial voluntary interview, and when asked a potentially incriminating question, stopped talking. There may have been other non verbal cues, I do not remember for certain. This is certainly admissible and able to be considered by a jury, just as improper affect, obvious nervousness, and non verbal cues are considerable.
Silence alone is extremely unlikely to meet the standard for indictment, much less conviction. It can be a link in the chain, but there would have to be other, less subjective and more concrete evidence for an individual to be convicted of an offense.
It doesn't matter if it is an uncommon thing. A person should not have to specifically state they are "invoking" a right. It should ALWAYS be at play.
Again, please refer to Berghuis v. Thompson that I referenced earlier.
Also, without the unequivocal invoking of Miranda, there is no way to know if that is the intent. Cops, just like coffee, are not psychic.
Again, please refer to Berghuis v. Thompson that I referenced earlier.
Also, without the unequivocal invoking of Miranda, there is no way to know if that is the intent. Cops, just like coffee, are not psychic.
I am tracking that. Just because the gavel comes down, doesn't make it right.
I'll repost this question and maybe someone can answer it?
I directly answered that a few pages back. In the facts of the supreme case, I'm a little baffled it even went that far.
It doesn't matter if it is an uncommon thing. A person should not have to specifically state they are "invoking" a right. It should ALWAYS be at play.
That doesn't make since because the right itself requires invocation. You have the right, you don't have to use it, but if you want to you have to invoke it. if a suspects silence to one issue but response to another automatically invoked the right then technology i ally the interrogation should have ended at the moment of silence.
This creates a problem, which is why this right, just as the right to counsel, require an affirmative unambiguous act.
The moment you invoke your right, especially your right to an attorney, they questioning must stop. They cannot even re-engage you for a pretty long time, or at all unless the lawyer shows up, or you personally re-engage the officer
Even once you get an attorney are you still obligated to answer questions? What if you don't want to say ANYTHING, even with an attorney? Is that silence allowed to be construed as guilt?
NCPatrolAR
10-15-14, 23:03
You can say that to yourself all day long. It doesn't matter. It only matters what WE think.
This is easily one of the dumbest things I think I've ever seen posted in a LE thread. I mean, we're talking "Forest Whittaker Eye" level.
The police profession better worry when the people who normally would be their allies no longer consider them so.
And what pray tell should they do to right the ship with people such as yourself?
NCPatrolAR
10-15-14, 23:06
Oooohhh, the "threat"...........
And what threat might that be? We would still respond to the call he'd place but obviously he wouldn't be willing to help us to figure out what's wrong since he would invoke his; count 'em; 1, 2, Fifh amendment right to be silent.
Now go ahead with another Whittaker-esque comment :)
Hopefully you never have to call 911
Are you inferring that no one who ever called 911 was subsequently arrested and charged with a crime? Because you know it has happened many, many times.
Since you apparently feel talking to the police shouldn't be an issue, how do you respond to this video?
https://www.youtube.com/watch?v=d-7o9xYp7eE
Alpha Sierra
10-16-14, 05:22
Absolutely. "Oh? You're looking for a cop killer? Sorry. Didn't see anything."
Eric who? Never heard of him.......
Cops should worry when otherwise law abiding people start thinking that way.
Eurodriver
10-16-14, 06:35
nevermind
Voodoo_Man
10-16-14, 06:50
@glocktogo - That video is pretty one sided and I can tell you from experience when people I have stopped try to do what he advocates it fails miserably. You have to talk to the police. I do not mean that in a negative way. You want a lawyer? Awesome! I will happily wait until you get one. But a lawyer does not come in, like in Law & Order and slam his expensive leather brief case down "if you ain't chargin my client we are OUT" and then strong arm the guy out the door. I have never seen it, and I've done plenty of investigations with guys asking for a lawyer right away. They talk, the lawyer tells them to talk or it will be bad for them. See the police, like PDSGT pointed out earlier in the thread, we are not psychic we will do an investigation to the best of our ability and if you do not give us information which will/can otherwise exonerate you (regardless of however small or appearing insignificant) we will let the facts and scientific data lead our investigation. If you want to clam up and not say a word well then the investigators will do everything in their power to be objective but we are all human after all, some are less objective than others. Is that the way to go about an investigation? Probably not, but as the old saying goes, never piss off the person cooking your food.
Being polite, considerate and forthcoming, especially when you have nothing to hide is going to get you a hell of a lot further with a LEO than doing what that lawyer tells in that video.
Eric who? Never heard of him.......
Cops should worry when otherwise law abiding people start thinking that way.
As stated in various threads - Those that go out of their way to act maliciously and negatively towards LE, just because of their uniform/job are the vast, overwhelming, minority.
It is as much the general public's responsibility to (aid in the) capture of criminals as it is LE's. Do you want a murderous psycho running around? If yes, and your personal dislike/mistrust of LE leads you to do such a thing instead of the right thing when the time comes then you probably should not be posting such things online, or talking to people about your personal views since the overwhelming majority in this country appreciate what LE does on a daily basis.
Also, the most obvious thought comes in mind, the reason most urban centers have so many unsolved homicides is because the "public" in those areas do not talk to the police (right away or publicly). They put on a tough-guy face, "I ain't talk to no pigs" type attitude when it doesn't concern them, but when it is their family, friends or themselves in a tight spot they usually sing like birds. Do you really want to be categorized in the same light as the bottom bowls of society (by other citizens, specifically, as LE does not care) just because you are upset at something a few people did who happen to just be LEO's, once up on a time?
The internet is a very strange place and it allows for this type of wild information to be distributed and people buy it wholesale, then through confirmation bias they start to believe all or every person in a specific field, job or otherwise are like that. It is a very interesting study on how people can be, otherwise normal law abiding, but get online, turn a switch, and spew hate.
So do I. In fact; I, along with my coworkers, remember it each time we start our shift
This ruling seems lose lose to street level LE and citizens and only adds tension and potential for missunderstanding between citizen and LE. LE is going to think the person a trouble making know it all tool when you invoke the 5th on what seems a very routine questioning, yer citizens left with little choice by this ruling it seems.
Voodoo_Man
10-16-14, 06:56
This ruling seems lose lose to street level LE and citizens and only adds tension and potential for missunderstanding between citizen and LE. LE is going to think the person a trouble making know it all tool when you invoke the 5th on what seems a very routine questioning, yer citizens left with little choice by this ruling it seems.
"Invoking the 5th" on a street level LE-Citizen, investigation, is pretty weird, I will admit. The only people I have ever come across that do that are those who are either bat-shit-crazy-lunes from either side of the political spectrum (eg; occupiers and OC'ers alike) and the super-criminal "thug" just got out of jail-types. "I ain't talkin to you, I know my 5th amendment rights!" Both send off flares in the sky as someone we should investigate. If I do a vehicle stop for a traffic offense and instead of giving me information they start out with some bit about the 5th amendment, it is going to be a difficult day for everyone.
NCPatrolAR
10-16-14, 07:48
This ruling seems lose lose to street level LE and citizens and only adds tension and potential for missunderstanding between citizen and LE. LE is going to think the person a trouble making know it all tool when you invoke the 5th on what seems a very routine questioning, yer citizens left with little choice by this ruling it seems.
I don't know about that. It's been out for over a year now and I've yet to see it influence any encounters at the street or lower level investigative stages.
NCPatrolAR
10-16-14, 07:55
Are you inferring that no one who ever called 911 was subsequently arrested and charged with a crime? Because you know it has happened many, many times.
Where do you guys come up with some of this stuff? Some of the conclusions and parallels that are drawn boggle the mind at times.
Since you apparently feel talking to the police shouldn't be an issue, how do you respond to this video?
https://www.youtube.com/watch?v=d-7o9xYp7eE
Feel free to take his advice if you want. It doesn't matter to me if you do or don't
Alpha Sierra
10-16-14, 08:05
It is as much the general public's responsibility to (aid in the) capture of criminals as it is LE's. Do you want a murderous psycho running around? If yes, and your personal dislike/mistrust of LE leads you to do such a thing instead of the right thing when the time comes then you probably should not be posting such things online, or talking to people about your personal views since the overwhelming majority in this country appreciate what LE does on a daily basis.
Also, the most obvious thought comes in mind, the reason most urban centers have so many unsolved homicides is because the "public" in those areas do not talk to the police (right away or publicly). They put on a tough-guy face, "I ain't talk to no pigs" type attitude when it doesn't concern them, but when it is their family, friends or themselves in a tight spot they usually sing like birds. Do you really want to be categorized in the same light as the bottom bowls of society (by other citizens, specifically, as LE does not care) just because you are upset at something a few people did who happen to just be LEO's, once up on a time?
Falls on deaf ears
Even once you get an attorney are you still obligated to answer questions? What if you don't want to say ANYTHING, even with an attorney? Is that silence allowed to be construed as guilt?
Of course not. That is a wildly different situation than the one laid out in the supreme court. In fact, that would be the exact situation the constitutional protection was meant for.
"Invoking the 5th" on a street level LE-Citizen, investigation, is pretty weird, I will admit. The only people I have ever come across that do that are those who are either bat-shit-crazy-lunes from either side of the political spectrum (eg; occupiers and OC'ers alike) and the super-criminal "thug" just got out of jail-types. "I ain't talkin to you, I know my 5th amendment rights!" Both send off flares in the sky as someone we should investigate. If I do a vehicle stop for a traffic offense and instead of giving me information they start out with some bit about the 5th amendment, it is going to be a difficult day for everyone.
That is where people get confused, and internet advice makes people retarded. A traffic stop is a lawful stop, where the officer is conducting an investigation. People often cross this situation with one in which an individual is walking down the road and the police, without any real reason, request an ID, or for the person to stop and answer some questions. Well that person DOES NOT have to ID, or answer any of those questions unless the officer can articulate why he has a need for those things, and what crime he is investigating.
I don't remember the name of the supreme court case that goes with that (not fully awake yet), but I know that it is still in effect. That case DOES NOT apply to a traffic stop in any way whatsoever. Its true, you don't have to say anything to incriminate yourself, but you must at least ID(most states). Frankly, like most officers on here have said, whats the point?
Now that being said. Several times when I was much younger and in college police loved to search every single car they stopped for traffic, without PC. Or say they would make us wait for a dog to circle the car if they were not given permission. THAT is absolutely ridiculous and maybe the time to start invoking some rights.
At the end of the day, if you are really that concerned about this stuff, get yourself an attorney on retainer and find out the rules in your state and take his advice.
I don't know about that. It's been out for over a year now and I've yet to see it influence any encounters at the street or lower level investigative stages.
I'd assume mostly due to this ruling seemingly flying under the radar and most being unaware of it, but as I said, has the potential to do so. I don't know what if any impact it's had on street level "real world" encounters at this point.
I'd assume mostly due to this ruling seemingly flying under the radar and most being unaware of it, but as I said, has the potential to do so. I don't know what if any impact it's had on street level "real world" encounters at this point.
It won't have any. This was the norm before the ruling. It was the way I learned it in law school, the way it is explained in most criminal law treatises and how it is used in practice.
Voodoo_Man
10-16-14, 08:35
Falls on deaf ears
http://media.ifunny.com/results/2014/06/14/1j27smh0rw.jpg
Voodoo_Man
10-16-14, 08:36
That is where people get confused, and internet advice makes people retarded. A traffic stop is a lawful stop, where the officer is conducting an investigation. People often cross this situation with one in which an individual is walking down the road and the police, without any real reason, request an ID, or for the person to stop and answer some questions. Well that person DOES NOT have to ID, or answer any of those questions unless the officer can articulate why he has a need for those things, and what crime he is investigating.
I don't remember the name of the supreme court case that goes with that (not fully awake yet), but I know that it is still in effect. That case DOES NOT apply to a traffic stop in any way whatsoever. Its true, you don't have to say anything to incriminate yourself, but you must at least ID(most states). Frankly, like most officers on here have said, whats the point?
Now that being said. Several times when I was much younger and in college police loved to search every single car they stopped for traffic, without PC. Or say they would make us wait for a dog to circle the car if they were not given permission. THAT is absolutely ridiculous and maybe the time to start invoking some rights.
At the end of the day, if you are really that concerned about this stuff, get yourself an attorney on retainer and find out the rules in your state and take his advice.
I cant help but to think that those who are overly concerned are so interested because of their wrongdoings. Most law abiding people dont care.
I cant help but to think that those who are overly concerned are so interested because of their wrongdoings. Most law abiding people dont care.
I think that is usually the case. Either that or they have a very strong hatred for authority figures in general and just feel an overwhelming need to be difficult.
Edit: I should add. Remember everything you do in this day and age is recorded. I have seen people contest their traffic tickets after being a giant prick to the a police officer, turning what should have been a quick 5-10 minute stop into over an hour of yelling back and forth. Let me break this down. Before you get to court, an attorney has to review the entire tape. That isn't the only one they have to look at either, and then if you contest the ticket/incident, they have to go over the entire thing with the witnesses/officers involved, then it has to be played again in court. Even if you are "right", might want to consider how people will treat you throughout the process, especially after having to watch your behavior multiple times.
The above mentioned person that the supreme court case is centered upon, was a black guy jogging through a prominent area of Dallas when a squad car approached him and demanded his ID. He asked if he did something wrong, they said it doesn't matter, we want your ID. He refused, they arrested him for Class C fail to ID. Well, that black guy was actually an attorney, so he ran his small class C misdemeanor case all the way to the supreme court.
Voodoo_Man
10-16-14, 09:02
I didnt see it, but is there a copy of the original police report for the stop? What was their RS for the stop?
It is always interesting to see how things play out. I get similar issues when stopping people that match the description for a robbery or somesuch. "Why you stop me?" Is an irrelevant question since im not going to tell you until after a witness says that's not them for obvious rereasons. If that was the reason for stop, then the officers did what they were supposed to. If that wasnt and they were just stopping him for being black in a white area then there should have been a civil suit and complaint against them filed.
I didnt see it, but is there a copy of the original police report for the stop? What was their RS for the stop?
It is always interesting to see how things play out. I get similar issues when stopping people that match the description for a robbery or somesuch. "Why you stop me?" Is an irrelevant question since im not going to tell you until after a witness says that's not them for obvious rereasons. If that was the reason for stop, then the officers did what they were supposed to. If that wasnt and they were just stopping him for being black in a white area then there should have been a civil suit and complaint against them filed.
I was referencing a very old case, I have no idea if there is a police report, ill look around later today. The reason they approached him though was because he was black in the really nice part of Dallas. That was why his ticket was eventually dismissed after he ran it all the way up the legal chain.
Here is the case, I was wrong. This is the one that went to the supreme court, the one in dallas just went to the Texas Supreme, which followed this case to reach the same holding
Brown v. Texas, 443 U.S. 47 (1979)
Here is a brief synopsis of the holding:
The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable." Cf. Terry v. Ohio,392 U. S. 1; United States v. Brignoni-Ponce,422 U. S. 873. The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse,440 U. S. 648. Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers' actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal
Eurodriver
10-16-14, 13:00
I think that is usually the case. Either that or they have a very strong hatred for authority figures in general and just feel an overwhelming need to be difficult.
Or they've done nothing wrong, or they're too busy, or they're on a sportbike and your CV can't catch them, or they value their privacy, or any other of the myriad reasons why someone would prefer not to speak to the police and be talked down to by someone who thinks he's somehow better because his gun is on a duty belt and theirs isn't.
Voodoo_Man
10-16-14, 13:23
Or they've done nothing wrong, or they're too busy, or they're on a sportbike and your CV can't catch them, or they value their privacy, or any other of the myriad reasons why someone would prefer not to speak to the police and be talked down to by someone who thinks he's somehow better because his gun is on a duty belt and theirs isn't.
Biased much?
Please try to be a little non-confrontational when trying to have input to a discussion regarding LE.
I cant help but to think that those who are overly concerned are so interested because of their wrongdoings. Most law abiding people dont care.
True enough, but most people go about their day not being concerned about many things they should be, so I don't see that as as a reason some law abiding people shouldn't be concerned about this per se. I know this comes under the "if you didn't do anything wrong you have nothing to worry about" categories for most LE, but I'm sure you're well aware how some view that as a potential slippery slope. Personally, as a law abiding type, I want to assist those of the thin blue line where and when I can as I see it as a partnership and not an "us" vs "them" thing and never have, but this ruling seems incongruent with that partnership.
Voodoo_Man
10-16-14, 14:57
True enough, but most people go about their day not being concerned about many things they should be, so I don't see that as as a reason some law abiding people shouldn't be concerned about this per se. I know this comes under the "if you didn't do anything wrong you have nothing to worry about" categories for most LE, but I'm sure you're well aware how some view that as a potential slippery slope. Personally, as a law abiding type, I want to assist those of the thin blue line where and when I can as I see it as a partnership and not an "us" vs "them" thing and never have, but this ruling seems incongruent with that partnership.
Sent you a PM.
@glocktogo - That video is pretty one sided and I can tell you from experience when people I have stopped try to do what he advocates it fails miserably. You have to talk to the police. I do not mean that in a negative way. You want a lawyer? Awesome! I will happily wait until you get one. But a lawyer does not come in, like in Law & Order and slam his expensive leather brief case down "if you ain't chargin my client we are OUT" and then strong arm the guy out the door. I have never seen it, and I've done plenty of investigations with guys asking for a lawyer right away. They talk, the lawyer tells them to talk or it will be bad for them. See the police, like PDSGT pointed out earlier in the thread, we are not psychic we will do an investigation to the best of our ability and if you do not give us information which will/can otherwise exonerate you (regardless of however small or appearing insignificant) we will let the facts and scientific data lead our investigation. If you want to clam up and not say a word well then the investigators will do everything in their power to be objective but we are all human after all, some are less objective than others. Is that the way to go about an investigation? Probably not, but as the old saying goes, never piss off the person cooking your food.
Being polite, considerate and forthcoming, especially when you have nothing to hide is going to get you a hell of a lot further with a LEO than doing what that lawyer tells in that video.
As stated in various threads - Those that go out of their way to act maliciously and negatively towards LE, just because of their uniform/job are the vast, overwhelming, minority.
It is as much the general public's responsibility to (aid in the) capture of criminals as it is LE's. Do you want a murderous psycho running around? If yes, and your personal dislike/mistrust of LE leads you to do such a thing instead of the right thing when the time comes then you probably should not be posting such things online, or talking to people about your personal views since the overwhelming majority in this country appreciate what LE does on a daily basis.
Also, the most obvious thought comes in mind, the reason most urban centers have so many unsolved homicides is because the "public" in those areas do not talk to the police (right away or publicly). They put on a tough-guy face, "I ain't talk to no pigs" type attitude when it doesn't concern them, but when it is their family, friends or themselves in a tight spot they usually sing like birds. Do you really want to be categorized in the same light as the bottom bowls of society (by other citizens, specifically, as LE does not care) just because you are upset at something a few people did who happen to just be LEO's, once up on a time?
The internet is a very strange place and it allows for this type of wild information to be distributed and people buy it wholesale, then through confirmation bias they start to believe all or every person in a specific field, job or otherwise are like that. It is a very interesting study on how people can be, otherwise normal law abiding, but get online, turn a switch, and spew hate.
"Invoking the 5th" on a street level LE-Citizen, investigation, is pretty weird, I will admit. The only people I have ever come across that do that are those who are either bat-shit-crazy-lunes from either side of the political spectrum (eg; occupiers and OC'ers alike) and the super-criminal "thug" just got out of jail-types. "I ain't talkin to you, I know my 5th amendment rights!" Both send off flares in the sky as someone we should investigate. If I do a vehicle stop for a traffic offense and instead of giving me information they start out with some bit about the 5th amendment, it is going to be a difficult day for everyone.
You seem to be saying "Trust the police, they're there to help you." Yet some of the very things you just typed contradict the position you're arguing for. I actually support the mission of law enforcement far more than you might imagine. I want them to catch the "bad" guys and make sure they pay their debt to society. Howwever, not everyone who goes to jail is a bad guy. Not every law is just and not every process of the legal system is fair and equitable. Not even you can deny that.
Where do you guys come up with some of this stuff? Some of the conclusions and parallels that are drawn boggle the mind at times.
Feel free to take his advice if you want. It doesn't matter to me if you do or don't
While I might be playing devil's advocate here a bit, it did come to mind as I read the dialogue in your posts. Of course it's a rhetorical question I asked, but people DO call 911 despite the fact that it may not wind up working in their best interests. My comments to Voodoo are what I'm referring to here. As for your comment about the advice in the video, we can't observe your body language and speech inflection, so I can't ascertain if there's any subtext to your response.
You have to admit that if everyone you came into contact with as an officer fully knew and understood their rights, along with how ignoring or giving them up might impact them, it would make your job a lot harder. Every one of us who does a remotely complex job will eventually take shortcuts. I'll admit that I do, dependent on the situation and how necessary a specific outcome is to my mission. People kot knowing or understanding their rights allows you to more quickly and efficiently process your work. That isn't a bad thing for you and in most cases, the public at large. It may be bad for the person you're dealing with though.
I cant help but to think that those who are overly concerned are so interested because of their wrongdoings. Most law abiding people dont care.
LOL, now you're DEFINITELY lending support to the position the lawyer in the video takes. :)
The above mentioned person that the supreme court case is centered upon, was a black guy jogging through a prominent area of Dallas when a squad car approached him and demanded his ID. He asked if he did something wrong, they said it doesn't matter, we want your ID. He refused, they arrested him for Class C fail to ID. Well, that black guy was actually an attorney, so he ran his small class C misdemeanor case all the way to the supreme court.
You forgot to answer the most important question. Was he doing something wrong?
I didnt see it, but is there a copy of the original police report for the stop? What was their RS for the stop?
It is always interesting to see how things play out. I get similar issues when stopping people that match the description for a robbery or somesuch. "Why you stop me?" Is an irrelevant question since im not going to tell you until after a witness says that's not them for obvious rereasons. If that was the reason for stop, then the officers did what they were supposed to. If that wasnt and they were just stopping him for being black in a white area then there should have been a civil suit and complaint against them filed.
Why wouldn't you give the citizen a brief explanation? Do you refuse to tell a motorist why you stopped them until they've signed a citation? Are you furthering community cooperation by refusing to give a brief explanation? What would be damaging to your investigation by stating "We've received a crime report/suspect activity report and we're investigating." You've given no information that would help a suspect evade capture and you might've just elicited voluntary cooperation from a citizen insted of relying on cumpulsory compliance.
This is exactly what citizens in areas with damaged LE community relationships are complaining about.
Biased much?
Please try to be a little non-confrontational when trying to have input to a discussion regarding LE.
And there you go again, shooting holes in your own position. :rolleyes:
True enough, but most people go about their day not being concerned about many things they should be, so I don't see that as as a reason some law abiding people shouldn't be concerned about this per se. I know this comes under the "if you didn't do anything wrong you have nothing to worry about" categories for most LE, but I'm sure you're well aware how some view that as a potential slippery slope. Personally, as a law abiding type, I want to assist those of the thin blue line where and when I can as I see it as a partnership and not an "us" vs "them" thing and never have, but this ruling seems incongruent with that partnership.
Funny how those of us taking this position are attempting to be reasonable, but we've been compared to "bat-shit-crazy-lunes from either side of the political spectrum (eg; occupiers and OC'ers alike) and the super-criminal "thug" just got out of jail-types". Yet they don't want to be compared to those LEO's who abuse their authority, as if the ones who do wear a special emblem that differentiates them from the ones that respect the authority they've been granted and the public they serve. :confused:
Voodoo_Man
10-16-14, 15:18
I seem to miss the part where I go shoot holes in my own position, please highlight them and not quote everything I posted and say I am doing something that is clearly not the case.
Just to point out, if someone is stopped because they match the description of a robbery suspect or the like, and we tell them that and they start to resist, attempt to run or something of that nature, then it turns out not to be them (has happened plenty of times) how does that look to someone who does not understand police procedure or the concept of an "eye witness" or "street ID."
Edit; before you start dissecting my posts to reflect your point. Please understand that what I am posting is my personal experience and mostly an opinion I have formed. What I have posted is what I have seen, others may differ in experience. If you have personal experience that can contribute to this, by all means post it. Please keep my posts in the context of which I laid them out, assigning them false prefaces does not aid your point it only renders your contribution moot to the discussion.
NCPatrolAR
10-16-14, 15:56
While I might be playing devil's advocate here a bit, it did come to mind as I read the dialogue in your posts
And it's still a foolish parallel. What does the number of people that call 911 that are arrested with pointing out the foolishness of calling 911 if you claim that will invoke the 5th during any interaction with LE? If you're going to take such an asinine position; don't call us in the first place. Of course we know how things are; people talk a big game online but are completely different when things are happening for real
Doc Safari
10-16-14, 16:07
Frankly, when I go through a DWI checkpoint, and the officer is able to (correctly) ascertain that I am not intoxicated, nor have I had a drink of any kind, that should be the end of it. I resent being asked to see my "papers" as if the officer is going to fish until he finds something he can cite or arrest me for. I am former law enforcement myself and I take great pains to be squeaky clean. So I don't appreciate being treated as if I'm guilty of something and the officer just has to prod until he finds it.
I can't tell you how many times I've been asked where I'm headed. I always answer, "North", or whatever direction I'm travelling. Sometimes I'll even point ahead of me and say, "That way."
It's none of their fuggnasty business. If I'm not clearly suspected of something that justifies further questioning or a vehicle search, then there is no reason for a cop to ask "Whatcha got in the trunk, son?"
Maybe the questions are just out of habit because the officer is bored or something, but I still think it's wrong at a routine stop.
I seem to miss the part where I go shoot holes in my own position, please highlight them and not quote everything I posted and say I am doing something that is clearly not the case.
Just to point out, if someone is stopped because they match the description of a robbery suspect or the like, and we tell them that and they start to resist, attempt to run or something of that nature, then it turns out not to be them (has happened plenty of times) how does that look to someone who does not understand police procedure or the concept of an "eye witness" or "street ID."
No problem:
Originally Posted by Voodoo_Man
@glocktogo - That video is pretty one sided (it is very specifically two sided, with the LE side represented by the detective)and I can tell you from experience when people I have stopped try to do what he advocates it fails miserably. You have to talk to the police. That is incorrect. You have to cooperate to the point you can be identified, so long as there is RAS for the stop. Refusing to cooperate may work against you to, but it does absolutely nothing to make it any easier for LE to secure a conviction against you. If getting subjects to talk didn't make it easier, you as a LEO would never ask them questions. I do not mean that in a negative way. You want a lawyer? Awesome! I will happily wait until you get one. But a lawyer does not come in, like in Law & Order and slam his expensive leather brief case down "if you ain't chargin my client we are OUT" and then strong arm the guy out the door. I have never seen it, and I've done plenty of investigations with guys asking for a lawyer right away. They talk, the lawyer tells them to talk or it will be bad for them. I'll bet that any lawyer you'd hire to represent you, wouldn't be caught dead telling their client to spill their guts without knowing what evidence you had against them or at least trying to cut a deal. :) See the police, like PDSGT pointed out earlier in the thread, we are not psychic we will do an investigation to the best of our ability and if you do not give us information which will/can otherwise exonerate you (regardless of however small or appearing insignificant) we will let the facts and scientific data lead our investigation. If the scientific facts and data don't implicate your interview subject, then you have nothing to charge them with. However, as stated in the video, the subject could inadvertentlly make themselves a target of the investigation. The odds of this happening appear to escalate in proportion to the media and political pressure to solve a case. That is human bias at work.If you want to clam up and not say a word well then the investigators will do everything in their power to be objective but we are all human after all, some are less objective than others. Some are biased BEFORE cooperation is refused or ended. That's the point of this thread.Is that the way to go about an investigation? Probably not, but as the old saying goes, never piss off the person cooking your food. That one is self-explanatory. You just admitted that personal bias sometimes enters an investigation. That may happen with or without relenquishing your constitutional rights.
Being polite, considerate and forthcoming, especially when you have nothing to hide is going to get you a hell of a lot further with a LEO than doing what that lawyer tells in that video. The old, "only guilty people hide things" mantra. In cases where personal negative outcomes may be at stake, smart people hide things too. Haven't you ever heard "Better to be thought a fool than to speak and remove all doubt."???
As stated in various threads - Those that go out of their way to act maliciously and negatively towards LE, just because of their uniform/job are the vast, overwhelming, minority.
It is as much the general public's responsibility to (aid in the) capture of criminals as it is LE's. Do you want a murderous psycho running around? Intellectually dishonest debate tactic: Questioning the motives of your opponentIf yes, and your personal dislike/mistrust of LE leads you to do such a thing instead of the right thing when the time comes then you probably should not be posting such things online, or talking to people about your personal views since the overwhelming majority in this country appreciate what LE does on a daily basis.
Also, the most obvious thought comes in mind, the reason most urban centers have so many unsolved homicides is because the "public" in those areas do not talk to the police (right away or publicly). They put on a tough-guy face, "I ain't talk to no pigs" type attitude when it doesn't concern them, but when it is their family, friends or themselves in a tight spot they usually sing like birds. Do you really want to be categorized in the same light as the bottom bowls of society (by other citizens, specifically, as LE does not care) just because you are upset at something a few people did who happen to just be LEO's, once up on a time? Intellectually dishonest debate tactic: Innuendo, Insinuation and Stereotyping
The internet is a very strange place and it allows for this type of wild information to be distributed and people buy it wholesale, then through confirmation bias they start to believe all or every person in a specific field, job or otherwise are like that. That isn't the subject at hand. The subject at hand is whether talking to the police is more likely to help you or hurt you. The actual answer is, it depends. It depends on what happened, what the investigation is about, whether you may directly or inavertently be placed in the suspect pool, what the evidence reveals and at what point in the timeline of the investigation it may benefit you to talk.
It is a very interesting study on how people can be, otherwise normal law abiding, but get online, turn a switch, and spew hate.
I can go on and parse your follow up posts, but I think I've made my point. As to your second paragraph, I never said you should tell the subject of a field interview they match the description of a subject. I said ""We've received a crime report/suspect activity report and we're investigating." That reveals nothing except your established justification to request ID. If they're the suspect and they think they can fool you, they'll stick around. If not, they'll rabbit regardless. However, if you're dealing with a regular citizen who may provide you with additional info, refusing to answer their legitimate question may take someone who would've otherwise been cooperative and given you info, and turned them into a resentful "subject" who doesn't give you squat. Further, don't you think treating an otherwise "innocent" citizen like a subject will increase the likelihood that they might fall back on previous experience with the popo and make them want to rabbit?
All Will, myself and others are saying is that when you feel like a hammer, everything starts to look like a nail. That's all well and good if you're dealing with a nail, but it's overkill for a sticky note or thumb tack. Not everyone you encounter on the street is a nail. It's possible in some cases to take a criminal and "talk them into custody". It's also possible to take what would've been an otherwise cooperative citizen, subject or criminal and turn them combative. All it takes is a little body language and some aggressive speech. You can damage your own credibility, mission and community relations quicker than you can repair them.
Don't be "that guy". :)
And it's still a foolish parallel. What does the number of people that call 911 that are arrested with pointing out the foolishness of calling 911 if you claim that will invoke the 5th during any interaction with LE? If you're going to take such an asinine position; don't call us in the first place. Of course we know how things are; people talk a big game online but are completely different when things are happening for real
And you DEPEND on that fact to make your job easier. :)
There are plenty of reasons one might call 911 and not want to answer questions from a law enforcement officer. Personal injury requiring medical attention is a perfect example. Unless you're providing immediate first aid and request medically relevant information, not one single question you ask is going to further medical treatment. Your questions can wait until treatment is provided. If you're a male and a related female is injured, you'd have to be a fool to not think an officer questioning you is trying to determine if you caused the injury. Your questions can wait. Your investigation will not wither and die if your subject waits until the exigency has passed and has time to collect their thoughts.
Answer me this, if YOU were the subject of a criminal investigation pursuant to a highly traumatic event, would you not tell investigating officers that you wish to cooperate, but need time to collect your bearings? If they refused your request and demanded you answer their questions, wouldn't YOU invoke your rights and obtain counsel?
I'll point out one other really significant divide between LE and their citizen subjects. It is legal for you to lie to them, but it is illegal for them to lie to you. The deck is stacked against them and they resent that. As validly stated in the video, people who couldn't otherwise sucessfully be prosecuted for the crime they were being investigated for, went to jail because they tried to deflect the investigation by lying. I don't advocate lying and I'd stay not answer a question before I ever lied, but it shouldn't be a crime to lie to someone who can legally lie to you.
It may be that asking "where are you going" type questions gives the officer more time to observe the driver. Being squeaky clean, I'll chat. I also have driver's license, chl, and insurance papers in my hand before the officer reaches my vehicle. If I'm asked to permit to a vehicle search, I'll say no. I don't want somebody digging in my car because I'm really not sure whether or not something might be planted. It does happen. I'm comfortable with my local police. When I travel, my trust level drops because I become a stranger who's passing through. I make a point to present with positive body language and courteous responses regardless of my location. When I travel, I don't leave home without having made myself presentable: clean clothes, clean body, and freshly shaved face. Despite what an officer may ask me, I'll not give an "it ain't none of your business" reply. I'm not paranoid--just careful. It pays.
NCPatrolAR
10-16-14, 17:03
And you DEPEND on that fact to make your job easier. :)
There are plenty of reasons one might call 911 and not want to answer questions from a law enforcement officer. Personal injury requiring medical attention is a perfect example. Unless you're providing immediate first aid and request medically relevant information, not one single question you ask is going to further medical treatment. Your questions can wait until treatment is provided. If you're a male and a related female is injured, you'd have to be a fool to not think an officer questioning you is trying to determine if you caused the injury. Your questions can wait. Your investigation will not wither and die if your subject waits until the exigency has passed and has time to collect their thoughts.
Answer me this, if YOU were the subject of a criminal investigation pursuant to a highly traumatic event, would you not tell investigating officers that you wish to cooperate, but need time to collect your bearings? If they refused your request and demanded you answer their questions, wouldn't YOU invoke your rights and obtain counsel?
I'll point out one other really significant divide between LE and their citizen subjects. It is legal for you to lie to them, but it is illegal for them to lie to you. The deck is stacked against them and they resent that. As validly stated in the video, people who couldn't otherwise sucessfully be prosecuted for the crime they were being investigated for, went to jail because they tried to deflect the investigation by lying. I don't advocate lying and I'd stay not answer a question before I ever lied, but it shouldn't be a crime to lie to someone who can legally lie to you.
If your goal is to invoke the 5th during any interaction with LE (which is what I commented on) then you wouldn't be waiting for medical treatment, a lawyer, etc. before answering any questions. You'd simply sit there like a yard gnome while the officer(a) is trying to figure out why you called 911 (especially considering that the 911 call taker might be a sworn officer and you'd have invoked the 5th with him as well)
So again; all of your examples don't do anything to address my post and how it points out the foolishness of such a stance.
And feel free to bring up general complaints about LE with someone else. My involvement in the thread is pretty narrow
If your goal is to invoke the 5th during any interaction with LE (which is what I commented on) then you wouldn't be waiting for medical treatment, a lawyer, etc. before answering any questions. You'd simply sit there like a yard gnome while the officer(a) is trying to figure out why you called 911 (especially considering that the 911 call taker might be a sworn officer and you'd have invoked the 5th with him as well)
So again; all of your examples don't do anything to address my post and how it points out the foolishness of such a stance.
And feel free to bring up general complaints about LE with someone else. My involvement in the thread is pretty narrow
I'll stop asking you questions now. You've asked quite a few in this thread, but have failed to answer any yourself. I will comment that it seems a strange thing to do, considering your position on citizens answering LE questions...
Voodoo_Man
10-16-14, 17:31
No problem:
...
*snip*
...
I can go on and parse your follow up posts, but I think I've made my point. As to your second paragraph, I never said you should tell the subject of a field interview they match the description of a subject. I said ""We've received a crime report/suspect activity report and we're investigating." That reveals nothing except your established justification to request ID. If they're the suspect and they think they can fool you, they'll stick around. If not, they'll rabbit regardless. However, if you're dealing with a regular citizen who may provide you with additional info, refusing to answer their legitimate question may take someone who would've otherwise been cooperative and given you info, and turned them into a resentful "subject" who doesn't give you squat. Further, don't you think treating an otherwise "innocent" citizen like a subject will increase the likelihood that they might fall back on previous experience with the popo and make them want to rabbit?
All Will, myself and others are saying is that when you feel like a hammer, everything starts to look like a nail. That's all well and good if you're dealing with a nail, but it's overkill for a sticky note or thumb tack. Not everyone you encounter on the street is a nail. It's possible in some cases to take a criminal and "talk them into custody". It's also possible to take what would've been an otherwise cooperative citizen, subject or criminal and turn them combative. All it takes is a little body language and some aggressive speech. You can damage your own credibility, mission and community relations quicker than you can repair them.
Don't be "that guy". :)
You did exactly what I asked you not to do - take my posts out of context, parsing up my posts to suit your end.
If you cannot take my entire post in the context in which it was posted, please do not make a show of trying to attack me where you have no ground to stand on.
Do your own research, or do not, frankly I do not care either way, I have a feeling your blatant distrust of LE stems from something that you have not posted about. My posts were more for those who want the education and information that active duty LEO can provide. To those people I am always open and as honest as I can be without violating OPSEC or other policies. Confirmation bias is a very difficult thing to get over sometimes, we should all strive to be as neutral and objective as we can when discussing these topics.
Voodoo_Man
10-16-14, 17:38
Answer me this, if YOU were the subject of a criminal investigation pursuant to a highly traumatic event, would you not tell investigating officers that you wish to cooperate, but need time to collect your bearings? If they refused your request and demanded you answer their questions, wouldn't YOU invoke your rights and obtain counsel?
I'll point out one other really significant divide between LE and their citizen subjects. It is legal for you to lie to them, but it is illegal for them to lie to you. The deck is stacked against them and they resent that. As validly stated in the video, people who couldn't otherwise sucessfully be prosecuted for the crime they were being investigated for, went to jail because they tried to deflect the investigation by lying. I don't advocate lying and I'd stay not answer a question before I ever lied, but it shouldn't be a crime to lie to someone who can legally lie to you.
You seem to know so much and have so many answers and "points" to bring up, but as it is clearly obviously you do not really understand what you are asking. I do not know a single LEO that has not been the target of an IA investigation. Especially those have been in a near deadly, or deadly force confrontation. Guess what that is? A "high traumatic event." How many of those have you been in? Care to tell us what you what you went through? Guess what happens to LEO's when that occurs? The same exact thing as would happen the average Joe on the street. Do not believe me? Ask any LEO you see what the process is if they get into a shoot, good or bad, and what the process is and how it would differ from what you would go through if you were in a similar situation. Aside from PD policy aspects, they would be nearly identical - but you already knew that, right?
Of course LE can lie to someone they are investigating, the concept you brought up and the end to which you try to drive a point is so absurd I cannot find any other word to describe it other than ridiculous. Would you want an undercover LEO having to not lie to people he investigating? Do you understand what kind of safety concern that is? Ohh, but that is not what you were talking about right? Took it out of context, did I? Sorry about that. Lets do it this way. Please post a situation you personally know of where a LEO lied in order to get information which led to an arrest? Not one that you youtubed, not one that someone's cousin's friend's grandfather once had. You personally. When did a LEO lie to you and in what context?
I have a feeling your blatant distrust of LE stems from something that you have not posted about...
If I'm remembering correctly, glocktogo works for a Sheriff's Department, in OK.
Voodoo_Man
10-16-14, 18:40
If I'm remembering correctly, glocktogo works for a Sheriff's Department, in OK.
Then I have no more words on the subject, its pretty obvious what his stance is regardless of profession.
Or they've done nothing wrong, or they're too busy, or they're on a sportbike and your CV can't catch them, or they value their privacy, or any other of the myriad reasons why someone would prefer not to speak to the police and be talked down to by someone who thinks he's somehow better because his gun is on a duty belt and theirs isn't.
Sorry I should have sent you a butthurt report to fill out before chiming in.
I'm not LE, but I do work in criminal law. The attitudes you are discussing are pretty rare these days. The vast majority of people that go bonkers and start screaming about their rights are usually on traffic stops. Well guess what, they did do something wrong hence the stop. My observation is just that, my personal observation, gleaned after reviewing thousands of misdemeanor cases and hundreds of felony.
Negative outlook, negative reality. Its called self-fulfilling prophecy. Food for thought.
True enough, but most people go about their day not being concerned about many things they should be, so I don't see that as as a reason some law abiding people shouldn't be concerned about this per se. I know this comes under the "if you didn't do anything wrong you have nothing to worry about" categories for most LE, but I'm sure you're well aware how some view that as a potential slippery slope. Personally, as a law abiding type, I want to assist those of the thin blue line where and when I can as I see it as a partnership and not an "us" vs "them" thing and never have, but this ruling seems incongruent with that partnership.
Thats what I tried to explain earlier. This holding is really nothing earth shattering. The fact that the right to remain silent is one that has to be affirmatively invoked is pretty well known. Just being silent isn't the same as invoking your right, especially when the facts are the same as the supreme court case.
You forgot to answer the most important question. Was he doing something wrong?
Sorry. The answer is no, he was not. Especially the case in dallas, he was just a wealthy black man jogging in a nice neighborhood. They saw a black guy jogging in a hoody and shorts and pulled up in the cruiser and asked for his ID.
Averageman
10-16-14, 22:19
I can see both sides of it, I do think Officer safety is a big issue, but from what I have expoerianced.
I had a house fire, actually my deck was on fire and my Girlfriend called me at work and then 911. I pull in the drive way followed by the local PD and ruch to the back yard. The fire is still smoldering so I pitch take off my shirt and start pulling back lumber with a crow bar and hammer to help the FD.
The PD who followed me in to the backyard sees my snubbie and stops me, asks me to disarm and wants to see my permit and then runs the numbers on my gun.
I hear "ASSHOLE" and there is nobody ther but me, the Cop and the Fire Department guys putting out the fire.
Sometimes folks get a bit too nervous.
After that encounter I had to tell my kid who was a noseguard on the local HS Football team I didn't want him jogging in a hoodie until daylight. You see, if that guy had that reaction to a homeowner helping put out a fire in his own backyard, how would he deal with a mixed race kid at 4 am in a hoodie jogging accross town?
I default back to my Military career and a very world wise First Seargent telling the whole formation "It only takes one asshole to ruin it for everyone" and that goes for both sides.
You did exactly what I asked you not to do - take my posts out of context, parsing up my posts to suit your end.
If you cannot take my entire post in the context in which it was posted, please do not make a show of trying to attack me where you have no ground to stand on.
Do your own research, or do not, frankly I do not care either way, I have a feeling your blatant distrust of LE stems from something that you have not posted about. My posts were more for those who want the education and information that active duty LEO can provide. To those people I am always open and as honest as I can be without violating OPSEC or other policies. Confirmation bias is a very difficult thing to get over sometimes, we should all strive to be as neutral and objective as we can when discussing these topics.
You seem to know so much and have so many answers and "points" to bring up, but as it is clearly obviously you do not really understand what you are asking. I do not know a single LEO that has not been the target of an IA investigation. Especially those have been in a near deadly, or deadly force confrontation. Guess what that is? A "high traumatic event." How many of those have you been in? Care to tell us what you what you went through? Guess what happens to LEO's when that occurs? The same exact thing as would happen the average Joe on the street. Do not believe me? Ask any LEO you see what the process is if they get into a shoot, good or bad, and what the process is and how it would differ from what you would go through if you were in a similar situation. Aside from PD policy aspects, they would be nearly identical - but you already knew that, right?
Of course LE can lie to someone they are investigating, the concept you brought up and the end to which you try to drive a point is so absurd I cannot find any other word to describe it other than ridiculous. Would you want an undercover LEO having to not lie to people he investigating? Do you understand what kind of safety concern that is? Ohh, but that is not what you were talking about right? Took it out of context, did I? Sorry about that. Lets do it this way. Please post a situation you personally know of where a LEO lied in order to get information which led to an arrest? Not one that you youtubed, not one that someone's cousin's friend's grandfather once had. You personally. When did a LEO lie to you and in what context?
Then I have no more words on the subject, its pretty obvious what his stance is regardless of profession.
I'll say one thing and drop this. I didn't take a single thing you posted out of context. I took what you typed and showed how it may look to someone not taking the position of a LEO, but that of a non-commissioned citizen. I am above all things a United States citizen, born and raised. Everything else flows from that, from my military service to my LE service. So long as they allow it, I always treat others the way I myself would wish to be treated. I would however expect and understand being treated less respectfully under exigent circumstances. Sadly, not all my brothers and sisters feel this way.
You keep speaking of my confirmation bias, yet I show you your own (in words) and you refuse to see it. I have no way to know if you actually embody the bias that you've posted, so all I have are your typed words to go by. See it, or don't. Not my problem. Likewise, you don't know a damned thing about me, what I've done, or what my "stance" is. What you don't know in this world encompasses more than what you do. Again, see it or don't. Not my problem.
I'm done with this thread. I have a 10 hour drive tomorrow to shoot a match this weekend. What you or anyone else in this thread thinks of me will not be on my list of concerns. :)
Eurodriver
10-17-14, 07:09
Of course we know how things are; people talk a big game online but are completely different when things are happening for real
I hate this type of post. Maybe it's because my online personality is 100% identical to my real life personality. In 3500+ posts on this forum, I would find it difficult to be someone that I'm not. I haven't met many M4C members, but I've met a few. I'm sure they'd all agree that I'm a really likeable guy that enjoys sticking up for the underdog. In these threads, it's "society". What is the purpose of a forum like GD if it were not to debate different viewpoints and better our rhetorical and intellectual persuasion skills?
I've said it numerous times - every single encounter I've had with LE has been polite, professional, and courteous. In fact, I made a thread about 2 and a half years ago on here about drawing down on some hoodlums downtown. Didn't fire, but 911 callers made the "White guy in the street shooting unarmed black kids!" calls and I ended up being body slammed to the ground, faced shoved in the ground (it was raining hard) and tossed in the back of an LE cruiser. A few minutes later the cops gave me my gun back, walked me to my car and shook my hand. My name didn't even end up in any reports. I hold no grudge for the body slam, and I actually met the officer who tackled me at a funeral for one of our local deputies. We ended up going to Hooters and having a good time the rest of that weekend. His brother joined the department of our deceased friend and now patrols my neighborhood. I've been pulled over at 3AM by Florida Highway Patrol and I had two guns just chilling in my map pocket. I told the officer about them, my hands were covered in stamps and wristbands from nightclubs in Ybor City and I even had a black guy in my passenger seat. Cop asked me to step out of the car and shook my hand for being an OIF vet (license plate) and sent me on my way.
I think some of you people (Specifically LE) take this shit too seriously. These are just words on the internet. I think every infraction I've ever gotten on this forum is related to LE threads. Why? If I were keeping tally of every LE shot to death, that would be a little uncalled for. But why all of the nonsense bullshit drama because I want to expose a logical flaw in your (or Voodoo_man's) argument? Sure, sometimes I might stir the pot while doing so but why does that hurt LE's feelings so much? Don't you get called every name in the book 40-50 hours a week by people who hate you?
Let's keep this thread about the topic, not the members.
As someone said earlier in the thread, in the case of Salinas, the silence itself was more of a behavior, and not the display of a right. As an example (and I am not comparing citizens to children here or LE to parents) if you are talking to your child about playing ball in the house and suddenly ask, "Who broke the vase?" and your child stops talking and averts your gaze, is that an innocent behavior (i.e. a right) or an indicator of guilt? Can you use that in creating your opinion on whether the vase broke while the child was playing ball? Would you follow up on that behavior? Especially in consideration of other evidence, such as a bat and ball in the room.
Again, there are plenty of non verbal cues used by all of us, including LE, that we use in day to day life to form judgements. Versions of the above example work with subordinates at work, cheating spouses, etc. Nervousness, affect, distress, and so on can all be used to draw conclusions. While the right against self incrimination may be innate, it needs to be verbalized to set it apart from other behaviors. Invoked at inappropriate times or circumstances, it can also appear suspicious, or at least odd, say if an officer comes over to ask if you saw anyone egg your neighbor's house.
I am not suggesting that you should not evaluate non-verbal cues in the course of your investigation, since they can provide useful investigative information, but the core of the matter is whether such non-verbal communication, silence in this specific case, should be allowed to be presented as evidence at trial.
The right against self-incrimination does not need to be verbalized to be exercised. Remaining silent is all that is necessary.
I am a bit confused by your statement. You say LE should be allowed to consider non verbal communication, but then you question whether those indicators, silence in this case, should be admissible in court. I would think if it can be considered as part of developing probable cause for arrest, then it should be admissible as well. To not include it would undermine the totality of the circumstances that led to an arrest. This could create undue confusion on the part of jurors.
To further add confusion, many interviews are video recorded, should juries be instructed to ignore non verbal cues they witness on video?
I think this could be an argument for the requirement to invoke, as in Berghuis, so that the intention of the person being questioned could not be subject to interpretation or confusion. In fact, juries are often instructed that the defendant not testifying is a right, and is not a considerable indication of guilt. Invoking Miranda would result in the same clarity. Even if the invocation took place in a non custodial setting, it is easier to argue the person invoking did not understand the difference between that and custodial interrogation, and was still exercising a right.
I am not suggesting that you should not evaluate non-verbal cues in the course of your investigation, since they can provide useful investigative information, but the core of the matter is whether such non-verbal communication, silence in this specific case, should be allowed to be presented as evidence at trial.
The right against self-incrimination does not need to be verbalized to be exercised. Remaining silent is all that should be necessary.
I assume that's what you meant to say? If not, simply remaining silent does not protect you per the OP. Unless you specifically invoke the 5th, silence can and will be used against you. As far as I know, that's the only Const. protected Right you have to verbally invoke for it to apply and it appears one needs to invoke it sooner than later. This NPR interview was worth a listen:
Take the case of California resident Richard Tom. In 2007, he broadsided a car, injuring a girl and killing her sister. At the accident scene, he asked to go home but was told no. He wasn't handcuffed, but police held him in the back of a police car. At no point did he ask the police about the victims. During his trial for vehicular manslaughter, prosecutor Shin-Mee Chang told the jury that Tom's failure to ask about them pointed to the "consciousness of his own guilt."
"His complete lack of concern for the occupants of the car that he had just broadsided was one factor that showed his indifference to the consequences of his reckless driving that night," Chang says.
But didn't Tom have the right to remain silent — to not ask about the victims? For decades, television shows like Columbo and the Law and Order series have told us: "You have the right to remain silent. Anything you say can and will be used against you in a court of law."
But the truth is, it's not that simple. Courts have found that suspects don't have to be read their rights upon arrest, but only right before they are interrogated. And there can be a long lag time between the two.
In the case of Richard Tom, for example, he was in custody for two hours before he was read his rights. Earlier this year, the California Supreme Court ruled in Tom's case, and said his silence at the scene of the accident could be used against him.
http://www.npr.org/2014/10/05/353893046/you-have-the-right-to-remain-silent-or-do-you
Is not giving consent for a search probable cause for conducting that same search?
Is asking for a lawyer when interrogated an admission of guilt?
Is silence now considered an answer in the affirmative?
Thats what I tried to explain earlier. This holding is really nothing earth shattering. The fact that the right to remain silent is one that has to be affirmatively invoked is pretty well known. Just being silent isn't the same as invoking your right, especially when the facts are the same as the supreme court case.
But when should you invoke it? When you feel maybe the conversation is going in a direction that's not in your best interest? The second LE makes contact with you regardless of the reason "just to be safe" or if/when they read you the Miranda? Clearly not the latter. I know the st level reality here, but this ruling seems to expose citizens to a higher level of risk than perhaps I realized existed. I have worked with LE, I have various long term friends who are LE, and I'm as staunch a supporter of those of the thin blue line (which is not a metaphor!) as non LE as you'll find, but, I think people likely need to be more aware of this ruling. As mentioned, I think it sets up a potential tension that need not exist and does not assist LE or citizens in that partnership to keep civility and those who would harm the law abiding at bay.
It's my constitutional right to act like a shit head, but I don't want the extra attention from it. This behavior will require more time and effort for the officer to evaluate and be unproductive for us both. I appreciate having the 5th amendment right but hope never to invoke it frivolously just because I can. If I did, I would be a shit head. I can't speak for anybody else about what might make them a shit head.
But when should you invoke it? When you feel maybe the conversation is going in a direction that's not in your best interest? The second LE makes contact with you regardless of the reason "just to be safe" or if/when they read you the Miranda? Clearly not the latter. I know the st level reality here, but this ruling seems to expose citizens to a higher level of risk than perhaps I realized existed. I have worked with LE, I have various long term friends who are LE, and I'm as staunch a supporter of those of the thin blue line (which is not a metaphor!) as non LE as you'll find, but, I think people likely need to be more aware of this ruling. As mentioned, I think it sets up a potential tension that need not exist and does not assist LE or citizens in that partnership to keep civility and those who would harm the law abiding at bay.
As to the bolded, yes.
These are questions best answered by your lawyer. From a general standpoint though, if you are under investigation about anything anything even remotely serious, I would probably, clearly and politely, state that I do not wish to answer any questions would like an attorney present, REGARDLESS of whether or not you are in custody. Thats just to be safe. Sometimes good people get caught up in nightmare investigations over just saying the wrong things. I have even seen one questionable murder trial that arose from what may have been a good shoot. It was questionable, but his comments to the police after he called 911 sunk him, among some other oddities.
An even better example occurred in Frisco Texas recently where police where interrogating a mother in her home who may or may not have just killed her son. Police asked her if she killed her son, she allegedly nodded. That action was used to fuel the investigation, and rightly so. She had been answering all their other questions. However, they (mother and her husband) deny that ever happened. An investigation ensued, she attempted to leave the country and was denied by the court, and eventually she allegedly killed her husband and then herself out of despair. Who knows what really happened, but if police are questioning you about something that serious, don't be stupid have a lawyer that is incredibly serious stuff.
When to invoke your rights is up to you, most attorneys I know tell their clients to do it as soon as possible. I personally think putting up those protections from the beginning of a traffic stop is a bit extreme, but if it was a DWI investigation...maybe not.
Once again, this is really stuff to speak with about your attorney and I really don't want to get into specifics. If you have more detailed questions shoot me a pm.
Frankly, when I go through a DWI checkpoint, and the officer is able to (correctly) ascertain that I am not intoxicated, nor have I had a drink of any kind, that should be the end of it. I resent being asked to see my "papers" as if the officer is going to fish until he finds something he can cite or arrest me for. I am former law enforcement myself and I take great pains to be squeaky clean. So I don't appreciate being treated as if I'm guilty of something and the officer just has to prod until he finds it.
I can't tell you how many times I've been asked where I'm headed. I always answer, "North", or whatever direction I'm travelling. Sometimes I'll even point ahead of me and say, "That way."
It's none of their fuggnasty business. If I'm not clearly suspected of something that justifies further questioning or a vehicle search, then there is no reason for a cop to ask "Whatcha got in the trunk, son?"
Maybe the questions are just out of habit because the officer is bored or something, but I still think it's wrong at a routine stop.
When were you an officer? I like to think we do a pretty good job in my State of teaching the SFST battery and roadside interview.
The state's interest in the public's safety is served by having only licensed drivers on the road, and by not having impaired people driving. That is why DWI and DL checkpoints are conducted following pretty stringent rules. Driving is a divided attention task and if your ability to focus on multiple tasks is impaired you are a danger to others on the road. So if I ask you "Do you have your license with you tonight?" and you say "Yes" I'll say something like "Could you get that for me?" As your reaching for it I'll say something like "It's a nice night, where you heading out to?" What I'm looking for are indicators of impairment such as fumbling for the license, shuffling past it in the wallet, or losing track of what I asked you to do. So that is the main purpose behind asking for DL and making conversation and asking about where you are going.
A lot of guys aren't very good at it, they are abrupt in their questioning and it does sound like an interrogation. A good officer can ask you a whole bunch of stuff in the course of friendly conversation and determine if there is reason to belief you are impaired or involved in other criminal enterprise without going all Gestapo.
Most criminal activity involves a motor vehicle in the preparation, commission, escape, or distribution of fruits of the crime. So when a good officer makes a vehicle stop they should be initially alert to that possibility while being as polite and engaging as possible in doing so.
Is not giving consent for a search probable cause for conducting that same search? No it is not. In fact if an officer decided 'Hey, I have probable cause to search' after being turned down for a consent search it probably isn't going to go far in court. 'Is it okay if I search your vehicle?' 'No, I do not consent for my vehicle to be searched, am I free to leave?'
Is asking for a lawyer when interrogated an admission of guilt? There is a difference between an interview and an interrogation - if you are being interrogated, you should have already had a 'Miranda Advisory' it is not an admission of guilt to ask to speak with an attorney. I know I would not go to the station to speak to officers without the advice of counsel. This is the Supreme Court: Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” Get counsel.
Is silence now considered an answer in the affirmative? No. Tell the officers "I'd like the opportunity to talk with my attorney before answering any questions, thank you." If they continue repeat "As I stated, I'd like the opportunity to talk with my attorney..........thank you.
Eurodriver
10-19-14, 07:34
When were you an officer? I like to think we do a pretty good job in my State of teaching the SFST battery and roadside interview.
The state's interest in the public's safety is served by having only licensed drivers on the road, and by not having impaired people driving. That is why DWI and DL checkpoints are conducted following pretty stringent rules. Driving is a divided attention task and if your ability to focus on multiple tasks is impaired you are a danger to others on the road. So if I ask you "Do you have your license with you tonight?" and you say "Yes" I'll say something like "Could you get that for me?" As your reaching for it I'll say something like "It's a nice night, where you heading out to?" What I'm looking for are indicators of impairment such as fumbling for the license, shuffling past it in the wallet, or losing track of what I asked you to do. So that is the main purpose behind asking for DL and making conversation and asking about where you are going.
A lot of guys aren't very good at it, they are abrupt in their questioning and it does sound like an interrogation. A good officer can ask you a whole bunch of stuff in the course of friendly conversation and determine if there is reason to belief you are impaired or involved in other criminal enterprise without going all Gestapo.
Most criminal activity involves a motor vehicle in the preparation, commission, escape, or distribution of fruits of the crime. So when a good officer makes a vehicle stop they should be initially alert to that possibility while being as polite and engaging as possible in doing so.
Can you tell the difference between someone who is extremely nervous (because they are a good person and don't want to get in trouble) and someone who is impaired or nervous due to illegal activity?
Can you tell the difference between someone who is extremely nervous (because they are a good person and don't want to get in trouble) and someone who is impaired or nervous due to illegal activity?
For SFSTs?
Does nervousness cause Horizontal gaze nystagmus? EVERY single DWI case the defense attorney claims that their client can't walk a straight line or or stand on one leg. It is a bad, bad, argument. Sometimes the only one they have.
Believe it or not, it is usually pretty easy to tell the difference between someone that is under the influence of alcohol and nervous. For example, shaking because you are nervous while getting your wallet is very different from being so impaired you can't complete simple tasks.
SFSTS are used as evidence for a reason. They are very, very easy. They are designed to be easily done by anyone in almost all conditions. Like 26 inf mentioned above though. If you come off as some gestapo sounding prick, it probably isn't going to matter because people can't stand that.
Some degree of nervousness is typical in most traffic stops for the reasons you mention, (good people, afraid of trouble), but most decent officers intuitively can see when someone is nervous to a degree that it is suspicious. Sometimes they are wrong, but that is why an officer only need probable cause for an arrest, but beyond a reasonable doubt is needed for a conviction.
For example, officer stops a person swerving all over the road. Person barely fails the SFSTs, PC arises, the arrest is made. At this point the officer has removed a potentially dangerous driver off the road. If he had to establish beyond a reasonable doubt there at the scene, many more potentially dangerous people would be free to go. The system is designed to err on the side of caution.
I've seen once ace where the defendant was all over the freaking road. He blew a .00 on the side. The was acting funny and couldn't complete the SFSTS. He claimed to have ADD and just be extremely nervous. The officer barely had PC to arrest him, but he did so. At the station they had a DRE come in and conduct a battery of tests. He determined the defendant was under the influence of benzos and marijuana. They took his blood, but made a procedural error so not only was the blood excluded from trial, but his confession later on that he was under the influence of those substances. He was acquitted mainly because the officer conducting the DRE sounded like a total prick. (as told by the jury post-trial). And he really did come off as a total gestapo Ahole.
This is a case where the officer clearly knew something was wrong, but to most people it just looks like nervousness. The guy blew a .00, I can see why people would believe him. But most people are not trained to look for signs of intoxication. Its like buying a house. Most people can see the glaring defects, but you still hire an inspector, someone trained to look for the more subtle items, to complete your home inspection.
Eurodriver
10-19-14, 10:21
Understood about the DWI aspect of it. That makes total sense.
I guess I should have been more specific regarding the nervousness. It seems very difficult (to me) to discern who is nervous because he doesn't want his wife finding out he was speeding (on that road coming from his ex girlfriends house) and who has a mountain of weapons and dope in the trunk.
And I absolutely agree that the priority is getting dangerous drivers off the road. As long as PC is found legally to get the driver off the street, the conviction is an afterthought.
Can you tell the difference between someone who is extremely nervous (because they are a good person and don't want to get in trouble) and someone who is impaired or nervous due to illegal activity?
Lol. Do you know what the odor of an alcoholic beverage smells like? Do you know anything about HGN? Its pretty easy to estimate someones BAC by the severity of just HGN, add in the walk and turn, one legged stand, and romborg tests its obvious. As noted above, if the smell, and HGN aren't there, but the other cues are (poor balance, slurred speech, ****ed up pupils, etc.) then its time to call a DRE out and get an eval.
So as I understand this discussion, the supreme court ruled that your silence pre Miranda warning can be used against you in court. In the case referenced the suspect was cooperating and answering questions during a NON CUSTODIAL interview until he was asked about a shotgun (which I believe was used in the crime). Then he just went silent. Why wouldn't that be useable?????? I mean if your acting fine, talkative, cooperating, and then all of the sudden stop.....and start acting....oh I don't know......guilty of something. Ya I'd say that plus the non verbal cues would be setting off alarms in the head of anyone interviewing the suspect. Not to mention the above action by the suspect would not be probable cause to arrest anyone, so more than likely other physical evidence was discovered or more PC was there for the arrest.
Also the OP is incorrect. The Miranda Warning DOES NOT have to be given when someone is place in custody. The Miranda Warning must be given prior to a CUSTODIAL INTERVIEW. As in asking someone NOT FREE TO LEAVE questions regarding the crime being investigated. Miranda does not apply to simple questions such as "name?" "DOB"? etc.
Eurodriver
10-20-14, 06:07
Lol. Do you know what the odor of an alcoholic beverage smells like? Do you know anything about HGN? Its pretty easy to estimate someones BAC by the severity of just HGN, add in the walk and turn, one legged stand, and romborg tests its obvious. As noted above, if the smell, and HGN aren't there, but the other cues are (poor balance, slurred speech, ****ed up pupils, etc.) then its time to call a DRE out and get an eval.
Hey bro, you missed a few relevant posts before yours. To answer your question, I don't know what an alcoholic beverage smells like. I'm pretty sure HGN is a television network, and BAC is the aiming concept used with my Trijicon.
Naw BRAH, HGN = Horizontal Gaze Nystagmus, BAC = Blood Alcohol Content, and as far as the alcoholic beverage smell....just go find a bum and stand down wind.....unless they already shit/pissed themselves. Then you'll just know what booze+piss/shit smells like.....BRAHSEF.
Eurodriver
10-20-14, 06:25
Naw BRAH, HGN = Horizontal Gaze Nystagmus, BAC = Blood Alcohol Content, and as far as the alcoholic beverage smell....just go find a bum and stand down wind.....unless they already shit/pissed themselves. Then you'll just know what booze+piss/shit smells like.....BRAHSEF.
Oh, that HGN nonsense is what my buddies do to me. Is that when they shine that bright ass pen light in my eye and then laugh at me when my eyes shake? I recall those same nights hearing comments like "She's a dude, bro" and "Don't take he-she home or you'll have a surprise!"
Good times....
This is what they are looking for. If you are well over .08, HGN is pretty apparent. Or if you are too drunk...the defendant typically can't even follow the pen with their eyes, they move their head.
http://youtu.be/rc_qfE9p9TQ
http://youtu.be/9fQ2Zaiay2U
In many States you are not required by law to perform a FST. If you're not, ALWAYS REFUSE!
That is correct. But great ideas usually fall by the wayside when intoxicated to the point where you're DUI.
Originally Posted by Eurodriver View Post
Can you tell the difference between someone who is extremely nervous (because they are a good person and don't want to get in trouble) and someone who is impaired or nervous due to illegal activity?
Not in every case, but at this point all I'm doing is making the decision 'should I ask the drive to exit the vehicle for SFST testing?'
There are protections to the driver: 1) they can refuse to exit the vehicle; 2) they can refuse to perform the tests. This forces the officer to make an arrest decision based on their observations of the vehicle in motion and their observations of the driver during the personal contact phase.
Many defense attorneys will tell their clients, next time don't get out of the vehicle, don't take the tests, don't blow. What they are betting is the officer won't be able to - 'Recognize and interpret DWI evidence: and Describe the evidence clearly and convincingly' (NHTSA SFST Session 4-21). If the officer doesn't do his job in that respect, based off the evidence he has, then the BAC refusal is a moot point.
Even if they exit the best protection of all is the test battery, specifically HGN (horizontal gaze nystagmus) which is not a product of nervousness.
Originally Posted by Eurodriver View Post
Can you tell the difference between someone who is extremely nervous (because they are a good person and don't want to get in trouble) and someone who is impaired or nervous due to illegal activity?
Not in every case, but at this point all I'm doing is making the decision 'should I ask the drive to exit the vehicle for SFST testing?'
There are protections to the driver: 1) they can refuse to exit the vehicle; 2) they can refuse to perform the tests. This forces the officer to make an arrest decision based on their observations of the vehicle in motion and their observations of the driver during the personal contact phase.
Many defense attorneys will tell their clients, next time don't get out of the vehicle, don't take the tests, don't blow. What they are betting is the officer won't be able to - 'Recognize and interpret DWI evidence: and Describe the evidence clearly and convincingly' (NHTSA SFST Session 4-21). If the officer doesn't do his job in that respect, based off the evidence he has, then the BAC refusal is a moot point.
Even if they exit the best protection of all is the test battery, specifically HGN (horizontal gaze nystagmus) which is not a product of nervousness.
Getting a conviction on a total refusal case is really, really hard. Not only does it prevent the officer from getting a blood warrant in many circumstances, it also gives the state nothing to show the jury. If you have a really good cop, and pick a really good jury there is a chance, but it is very difficult.
That being said, most people do the tests. The only two times I have recently seen a total refusal were both by repeat offenders. Both were severely intoxicated. One was so bad she was speaking gibberish. It didn't even matter that she didn't do any tests. She couldn't get out of the car, and the audio was priceless.
Originally Posted by Eurodriver View Post
Can you tell the difference between someone who is extremely nervous (because they are a good person and don't want to get in trouble) and someone who is impaired or nervous due to illegal activity?
Not in every case, but at this point all I'm doing is making the decision 'should I ask the drive to exit the vehicle for SFST testing?'
There are protections to the driver: 1) they can refuse to exit the vehicle; 2) they can refuse to perform the tests. This forces the officer to make an arrest decision based on their observations of the vehicle in motion and their observations of the driver during the personal contact phase.
Many defense attorneys will tell their clients, next time don't get out of the vehicle, don't take the tests, don't blow. What they are betting is the officer won't be able to - 'Recognize and interpret DWI evidence: and Describe the evidence clearly and convincingly' (NHTSA SFST Session 4-21). If the officer doesn't do his job in that respect, based off the evidence he has, then the BAC refusal is a moot point.
Even if they exit the best protection of all is the test battery, specifically HGN (horizontal gaze nystagmus) which is not a product of nervousness.
Regarding your number one, refusing to exit the vehicle, you may want to look at Pennsylvania v Mimms.
In Mimms the officer clearly articulated a safety need for having the driver exit the vehicle - to get the officer and the subject away from the danger of oncoming traffic. At that point the officer noted a bulge and conducted a Terry Frisk.
This is kind of like the whole Terry thing - you have to articulate reasonable suspicion to make the stop, and the frisk doesn't automatically follow the stop, you have to be able to articulate that circumstances exist to conduct the frisk.
The Court didn't make a bright line ruling in Mimms that simply because you've stopped someone you can have them get out of the vehicle, what they did was provide a framework for the officer to do so based on articulated safety concerns. 'I wanted to get him out of the vehicle to observe balance during the exit' may or may not cut it.
Certainly, I'd ask them to exit, if they refused I'd say something like 'Look I'm kind of exposed to traffic standing here, would you mind getting out so that we can be safer?' Thus establishing my articulable reasoning.
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