Exercise Your Rights Pt 2

I know that I may sound like a broken record, but a new opinion just released by the U.S. Court of Appeals for the Tenth Circuit drives home my point about exercising your rights when confronted by law enforcement agents. The case is unpublished, which only limits it use by lawyers and court as to its precedential value, but is as much the law as any other released opinion. In the case the court found that the appellant had waived his rights and the statements he made to Homeland Security agents were consensual.

In U.S. v. Dates, the court found that the statements made in the back of the agents car were not subject to the administration of the Miranda warnings (of TV and movie fame) because they were not made during a Fourth Amendment seizure or the product of a custodial investigation.

There is a significant misunderstanding of when “Miranda rights” must be given to an individual. The common, but wrong, perception is that you must be informed of your right to remain silent, have a lawyer, have a lawyer appointed etc., if the police or agents ask you any questions. The reality and the law are not that simple nor direct. In the Dates case, the appellant declined to talk then sort of agreed to talk and then elected not to talk then agreed to go to a fast food franchise with the agents. He agreed to ride in their car, was put in the back and questioned by an agent on the way to the franchise. On the way there and after arriving he went back and forth on talking to the agents while also answering several questions. Ultimately, he asked for a lawyer (way too late) and the agents took him home. His answers formed the basis for the agents getting a search warrant for his home and later for his indictment in federal court.

He entered a conditional plea and challenged the use of the ill-considered statement he made to the agents. The federal appellate court found the statements were not the product of any misconduct by the government and they were freely and voluntarily made, thereby usable against the appellant. There was no seizure or custody of the appellant which required the agents to advise him of his right to remain silent.

So once again, with renewed proof of the importance of what I say, I must again state: When approached by federal or other agents, invoke your rights under the Fifth Amendment not to speak to them and your rights under the Sixth Amendment to speak with a lawyer first. REMEMBER you must do this as a 5th and 6th invocation, merely saying I don’t want to talk to you is NOT ENOUGH. Then get a lawyer experienced in dealing with federal law enforcement agencies to represent you. Federal law enforcement agencies, like federal court is different. YOU need someone with the experience and expertise to deal with them.

As always, these are your rights, Use Them or Lose Them.