Law Day 2019

Today is May 1, 2019, celebrated as Law Day in the United States. As federally recognized special days or semi-holidays this is a rather recent addition. The former Soviet Union celebrated May Day to commemorate International Workers Day. Soon this evolved into a display in Moscow’s Red Square as a major military parade with hundreds of flowing red banners celebrating international socialism and communism. Many countries around the world still celebrate the observance of a workers day in their struggle to achieve better pay and working conditions.

In the United States the response during the Eisenhower Administration was to proclaim May 1, 1958 as Law Day in the United States. Later in 1961, the United States made Law Day a statutorily recognized special day of celebration in 36 United States Code §113, which states in part:

Law Day, U.S.A., is a special day of celebration by the people of the United States—
(1) in appreciation of their liberties and the reaffirmation of their loyalty to the United States and of their rededication to the ideals of equality and justice under law in their relations with each other and with other countries; and
(2) for the cultivation of the respect for law that is so vital to the democratic way of life.

With the current tensions in our society there could not be a more perfect time to reflect on the purpose this day stands for – and to remember that it must be observed more than on one day.

We must remember that our society is founded on principles which reach across political, social, ethnic, racial, religious and economic status. We each have a duty to treat each other civilly in our discourse and with respect. This does not mean we surrender our honest beliefs or give up our principles. But we must always examine our own beliefs and principles to align with the ideals of equality and justice under the law for all people.

Racism and religious bigotry are not new, they have both been with us for centuries. But we, in doing our part to making this country a more perfect Union, must stand for what is true and right without fear or malice of our own. We must look injustice in the eye and say this shall not stand. We must look religious bigotry in the eye and say you will not prevail. We must look racism in the eye and say you do not belong in our society.

“We are a nation of laws not of men.” That maxim has been uttered time and time again. But we must make it reality and not a hollow shibboleth. We as citizens must embrace the cause of truth, justice and equality personally every day. Like the ripples in a pond these concepts flow out from a single act. Just as injustice, inequality and racism flow out from a single act. If we see such acts we must admonish the offender to stop, but we must be mindful that much injustice and racism is born of ignorance and we must be a teacher not more. Wrongful beliefs are no less deeply held and no less resistant to change than are rightful beliefs. We must reach out to those who would reject the foundations of our nation – not with judgmentalism and acrimony; but with compassion and nurturing so they may see the better path and the futility of prejudice, bigotry and racism. That all men and women are entitled under our Constitution to equal treatment, free from oppression, and bias.

No country in history has ever been perfect, ours included. But the founders of this country had a vision to build a society unlike any previous nation. As human beings we are subject to our own frailties and poor judgment. But we must strive to be the best we can be in order to advance the goals of the founders to create a more perfect Union. As the late author and playwright, George Bernard Shaw once said, “You see things; and you say “Why?” But I dream things that never were; and I say Why not?” Let us dream things which never were; ending injustice, ending religious bigotry, ending racism, and say, “We did it.”

Searches and Seizures What Are They?

Let’s look at some typical situations and discuss whether or not, as a matter of law, they constitute a search or a seizure.

You are driving on a city street or a highway and make a lane change without proper signaling or are slightly over the posted speed limit. In your rear view mirror you notice the familiar red and blue flashing lights. You take a breath and then pull to the side of the roadway. The officer approaches your car and asks for your license and insurance verification, which you dutifully provide through your rolled down window. At this point in time you have been legally seized. Your acceptance of his apparent authority to stop you is your submission to the seizure. What can the officer do at this point legally? Can he remove you from your vehicle? Can he put you in his car? Can he search your car? The answer to the first two questions is an unqualified yes, he may do both of those things. Further, while he has you in his car he may ask you questions about your travels, your plans, your hurry, your life. These are all fine, so long as he does not extend the stop to do so. He will call for information regarding your license validity and whether you have any wants, warrants or other issues which pose a potential hazard to him personally. But can he search your car? Not on the facts we have here so far. Assuming your license is valid and you have no other detainable issues, he should issue you either a citation or a warning and let you go. Now is where the situation changes. Once you have received all of your documents back – you are free to go. Thank him/her get out of the car and leave. Legally you are no longer seized and if you stay it is of your choice – that is, it is voluntary. Do not engage in any attempt at “small talk” with the officer at this time. This is where the average person gets lost. The officer is looking to get you to consent to a search because he lacks probable cause to do it on his own. The officer has no legal basis for continuing this seizure, is aware of that deficiency and wants you to provide it for him. Remember this is not about whether you have anything to hide, this is about letting the government agent (police officer) rummage through your personal effects to his satisfaction. It is about surrendering your right to “be let alone” at this point.

Sometimes the officer will “up the ante” when a person declines the request to search. This is done generally by threatening to “bring the drug dog” to sniff your car. Implicit in this is the dog will alert to your car because you are hiding drugs. Or at a minimum your stop will be further delayed until a drug dog can be located and brought to the scene. These are ploys nothing more. Legally, the officer cannot extend the stop to have a dog brought to the scene. As this situation usually happens after you have declined permission to search; your declination cannot be used as a cause to search your car. In fact (and law), once the reason for the traffic stop is concluded the officer cannot even get a dog out of his own vehicle and do a “free air sniff” around your car if that in any degree extends your seizure. Some of you probably noticed that I did not say let the dog search. Dogs legally do not do searches they do “free air sniffs” to alert to the presence of contraband. This “alert” then provides the officer the probable cause for him to search your car. Like the old drug slogan, when asked about searching your car, “Just say No” and leave.

One more point to be made about this. Do not equivocate. State clearly, politely and directly, “I do not consent to a search of my vehicle, unless I am under arrest I am leaving.” I have seen cases where people refused and then stayed to muck up their refusal. Don’t second guess the officer. Don’t say “Well your gonna do what you want.” That opens the door to a search and is not a refusal.

I have spent a considerable amount of time dealing with traffic stops mainly because this is an area which is most rife with seizure and search issues. There are many gray areas and you as a citizen must be fully informed to place you on a level field with the officer. He will not tell you what your rights are nor what legally you can do to thwart his intent. That is your responsibility not his.

Many years ago the Supreme Court announced what is called the “automobile exception” to the 4th Amendment. Essentially, the High Court found that because the automobile was indeed mobile certain rules could be somewhat relaxed regarding searches. Mainly this has been in the need to secure a warrant prior to conducting a search. In 1982, the Supreme Court held that an officer could search a car as thoroughly without a warrant as he could with a warrant, if he believed he had probable cause to do so. If the officer found “contraband” then that suspicion was
confirmed. Surprisingly, that justification is rarely used by the police. Once that assertion is made and the search conducted, if it leads to a custodial arrest then the officer will be required to explain that thinking to a lawyer in a later hearing. It is just easier to get consent.

In these posts I hope to provide you with some basis for understanding the criminal justice system. I do not do this as your legal counsel or in any way to act as your representative. However, this information is intended to help you navigate any contacts which you may encounter with law enforcement. Your first choice should, as I have stated previously, be to retain competent counsel at that time.

As always these are your rights, use them or lose them.

Your 4th Amendment Rights

It has been sometime since I last had the opportunity to discuss your rights with you, as memorialized by the Constitution, specifically the Bill of Rights. I would like to continue to discuss with you the protections which you have under the 4th Amendment. For convenience that amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Up until the 20th Century there were very few cases decided by the U.S. Supreme Court interpreting this amendment. It is asserted that Justice Oliver Wendell Holmes once explained this minimal caselaw as being the product of amendment which was so clear in its pronouncement and certain in its prohibition that such judicial intervention was unnecessary.

I won’t burden this monograph with case citations other than the occasional abbreviated case name, but we will see how this amendment and your rights under it have been altered, limited or otherwise changed in the last 100 years. To a point I would venture that Justice Holmes would be apoplectic or at least greatly troubled.

We will look at the various levels of intrusion which the government (federal, state or local) can intrude into your daily activities affected by the 4th Amendment. The amendment addresses four specific places we have the right to be secure from unreasonable search. Specifically in our “persons, houses, papers and effects” but what does this mean to you in your daily life. What is an unreasonable search? What are “effects”? Which “papers”? What about the other have of the right, the unreasonable seizure?

Can the police choke you into throwing up to obtain evidence they think you have swallowed? (This actually happened) No they legally cannot, but it took the Supreme Court in 1952 to say so in Rochin. That would be one instance of being secure in one’s own person. But does “person” encompass a broader or more expansive area than ingestion. What about your coat or pants or shirt pockets, those are also part of your person due to the intimate connection between those items any your body.

Who determines what is unreasonable? Are there times which a search is permitted on less than probable cause and without involvement of a “neutral and detached magistrate”? When a drug dog sniffs around a stopped car trying to detect the odor of some illegal substance, is that a search? Can the police use thermal imaging to peer into your home? What is the legal status of your computer or “smart” phone? What rights do you have in today’s complicated, exception riddled, 4th Amendment world?

These are the issues which I hope to take up with you over the next several weeks. To enlighten your knowledge and provide you with some basis for understanding the criminal justice system. I do not do this as your legal counsel or in any way to act as your representative. However, this information is intended to help you navigate any contacts which you may encounter with law enforcement. Your first choice should, as I have stated previously, be to retain competent counsel at that time.

As always these are your rights, use them or lose them.

William Campbell

Continuation of 5th Amendment

Picking up where we left off at the end of last year, let's continue our exploration of your rights under the 5th Amendment to the Constitution of the United States.

The Amendment, as noted previously, merely states that no person may be compelled to be a witness against themself. Without turning this into a Constitutional Law class, it is important to understand when this right attaches and when your rights should be given to you in the well-known Miranda warning. This is an area which most fiction script writers get it wrong. There is no requirement for a person to be given the Miranda Warning by virtue of having been arrested. On the other hand, a person not arrested but in a custodial interrogation (police now use the term interview) situation should be given the Miranda Warning.

It is worth mentioning that not every law enforcement contact requires that you exercise this right. But, you should always be continuously evaluating whether or not it should be invoked. You should always remember that you are dealing with a skilled interrogator. (This is not a pejorative term, an interrogator is one who asks questions.) I have often advocated that people understand the situation in which they are thrust when deciding what is the best course to follow. It is a fact, that one cannot cooperate themself out of trouble, as a general rule. A serious investigation warrants the hiring of your own advocate, experienced in the ways of the system and capable protecting your rights. The "right to remain silent" is not limited to the "guilty" it is a right for all persons in this country.

I have done presentations, for example, on what to do after a shooting incident. The scenario is one in which the person has a legal possession of the firearm and is confronted with a situation in which the use of that firearm is reasonable. I note that most law enforcement agencies have a 48 hour rule, which precludes any agent, officer or deputy from being interviewed by other law enforcement for a period of 48 hours after a shooting. There are many reasons for this, the first being the trauma of having gone through this event and its effect on our mind and reflections. Exercising the right in this context is completely reasonable and proper. In a goose/gander analogy, I say if it is good enough for law enforcement it is good enough for citizens.

When someone does decide to speak with an investigator, it is imperative that person bring their own counsel to the meeting. I have represented persons who insisted on speaking with investigators (which I generally discourage). The offense had no evidence it was committed by my client. It was reasonable that someone else committed an offense and my client was in the vicinity at approximately the same time. Without any evidence of my client committing any offense, the investigator asked a series of "how did" speculation questions. I refused to let my client guess at what offense occurred or how it might have happened. At the end of the day, as that term is coined, my client was not charged with any offense. I have a litany of such similar stories. No matter how friendly, the investigator is not your friend. He/she is conducting an investigation for the sole purpose of presenting charges to the prosecution for filing. I have taken over cases where the client had already been "interviewed" and the statements made were written in a report as if the client was intentionally lying or misrepresenting the facts because they were "contradicted" by other statements or perceived "evidence". Charges were filed, in that case, the client was in jail for 26 months awaiting trial. At the conclusion of the trial and jury verdict, he walked out of the courtroom a free man.

One aspect of that case was the difference in the way the written report stated matters and the videotape of the interrogation depicted them. In the video they were speculations and guesses about matters which he had no actual knowledge. This coupled with the mis-statement as to the physical evidence defeated the prosecution's case.

We will discuss "silence" a little more next time. In the interim, if you are in a situation where this issue seems applicable, then retain the counsel of your choosing before agreeing to speak with anyone, by stating that you are exercising your right to remain silent under the 5th Amendment and your right to counsel under the 6th Amendment. This mantra should be memorized because it is necessary to preserve your rights. Do not ask if you need a lawyer. If you have the question, then the answer is YES.

As always, be courteous, polite and direct. These are your rights use them or lose them.

The Right to Remain Silent

As we close out the year, let's talk about your "right to remain silent". What is it? How do you exercise it? And, when is your silence going to be used against you?

The basis for this right is found in the 5th Amendment to the Constitution of the United States and is thirteen simple words "No person ... shall be compelled in any criminal case to be a witness against himself ..." But this is not as simple as those words might indicate. If you notice the Amendment never actually says anything about silence, though it is implied. When do you become a witness against yourself? Is it only in a courtroom? Or are there other times and places where this applies?

The answer to these questions is, you are being a witness anytime you are questioned in connection with a criminal matter for 5th Amendment purposes. Whether or not you are a target of the investigation you are still witness. Certainly, if you are a potential target of an investigation you should exercise your 5th Amendment right. But you may not know what is being investigated and therefore, you have to excercise caution in making any statement. This is where obtaining legal counsel becomes important to you. (Your 6th Amendment right) Counsel can spot questions with subtext not quickly grasped by the interviewee. As an example, I was representing a person once being investigated for an allegation of sexual harrassment in the work place. There was a government investigator conducting an "interview" of my client who asked, "have you ever had non-consensual sex with a woman?" My client seemed befuddled by the question, but before he could answer, I clarified that the investigator was asking if he had ever raped anyone. This clarified question drew a quick NO. There was no confusion or hesitation when the question was clear.

So what if you say, "I don't want to talk to you." to an investigator. Seems clear enough and direct enough to invoke your 5th Amendment right doesn't? The U.S. Supreme Court has held this answer is ambiguous and does not exercise your 5th Amendment right. Further the Supreme Court has held that while a properly invoked right to remain silent cannot be used against a person, the ambiguous silence can be used against a person.

So what do you do? The clear and concise answer is: "I am exercising my right to remain silent under the 5th Amendment of the Constitution not to talk to you." The only other thing to say is I want my lawyer present immediately. Then say nothing else.

Never, let me repeat, NEVER use words which are equivocal, such as "I think" "I might" or worse "should I" these words do nothing to help you and they provide safe haven for your adversaries. We may talk more in depth about this complicated area of the law next time. But for now I wish everyone a happy holiday season, whatever that may be for you. I will return with more about your rights after the first of the year.

Until then, as always;

These are your rights use them or lose them.