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.

Concluding Searches and Seizures

To put a bit of a finish on our discussion of searches and seizures, let me define some of the situations where these terms do or do not apply.

A seizure is a police preclusion of your freedom of movement. But not all such preclusions are actually seizures. For example, a traffic stop is a detention not considered a full 4th Amendment seizure. An investigatory detention is not considered a seizure. Often this detention is accompanied by a search which is not considered a search and is referred to as a "Terry pat-down". This is a touching of the clothing to determine whether there are any potential weapons which could harm the officer.

At the airport you are subjected to a warrant-less search to get on an airplane. You may be subjected to additional pat-downs as well. Under a general greater good philosophy the courts have not found these searches to violate the 4th Amendment.

Returning to the traffic stop, once the reason for the stop is completed any further detention may well become an unreasonable seizure. The Supreme Court has held that being required to wait for a drug dog after a refusal to consent to a search is an unreasonable seizure. While talking about drug dogs, the courts have held that their sniffs are not searches, but if they "alert" then that is probable cause for the police to conduct a search.

The courts have been slow to keep up with technology and have probably not been abreast of current technology since Samuel F. B. Morse hooked up his telegraph wire to send a message from the Supreme Court chamber in the basement of the capital to a receiver in Baltimore, in 1844. But it is catching up and has determined that modern smart phones are more than just call making devices. The courts now require warrants to search such phones and you do not have to provide lock codes or other access information on demand by the officer.

Of course, the home is still the primary focus of 4th Amendment search protections. If the police arrive at your door to do a "knock and talk" you do not have to let them inside. If you let them inside that is considered a consent by the courts and you will have waived several arguments later.

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

Clearing Some Misconceptions

Based on one comment in particular and some subsequent general impressions, I think it is important for me to clarify a few matters.

My postings here are about the practicalities and legal issues involved in criminal matters. Everything I have discussed has been based on real world events. I have not characterized these events as either good or bad acts by the law enforcement officers. But I am writing today to clear up that mis-conception.

Nothing that I have described a law enforcement officer doing, whether it is a local street cop or an FBI agent is illegal. These officers use the tools the courts have given them. These officers known and are taught how to get the most out of an individual. I do not fault them for doing what they are taught to do. That does not make them "bad cops". Some are more zealous in their duties than others, that is just life.

I responded to one poster, who attacked me personally in a most profane manner. I have not attacked any officer or agent in any post I have made, nor did I attack that poster in my direct response.

These posts are simple. They are an attempt for the general public, you the readers, to have some method of being aware of what is actually happening when you have a non-consensual encounter with the police.

I have always stated that you should be courteous and polite to the officer or agent. I continue to maintain that advice. I have at the same time advocated that you exercise your rights to your best interests. That you not be fooled by a friendly demeanor or consent when it is not legally required.

I welcome questions and comments which are constructive and advance the goals of these posts. However, I am engaged in an active legal practice and will only be able to answer as my busy schedule permits. Feel free to like the posts and the site. So, until next time.
As always these are your rights, use them or lose them.

Searches and Your Rights

Now that the turkey and dressing are a fading memory, if not our waistlines, let's return to the discussion of searches and your rights.

The exceptions discussed last time are matters over which you have no control. These are court made exemptions from the warrant requirement of the 4th Amendment. Most frequently encountered will be the "consent" exemption. As I have posted earlier any encounter with law enforcement is a legal matter not just a practical one. Which means, according to the Supreme Court, you must be thinking and speaking in a legal mindset not a routine conversation mindset.

A real world example helps illustrate this requirement. If you are the subject of a traffic stop for a minor violation and are told you are just getting a warning, then you should be on your guard for the coming questions. Once you are restored of your license, insurance and, if taken, your vehicle registration, then you are free to leave. The stop is concluded. Everything from this point on is voluntary on your part. If there are requests to "take a quick look" in your car, then say "No." This is a fishing expedition at this point. You cannot legally be detained while he waits for a dog to arrive, if you decline to consent.

Do not permit yourself to feel pressured or required to submit to these requests. Also as I have stated in earlier posts, do not fall for the "Nothing to hide" bait.

Finally, be polite and friendly in a business like manner. Be clear in your refusal to permit the "quick look". Advise the officer that it appears you are free to go and that is what you are doing.

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