Posted on 04/20/2017 12:00:22 PM PDT by Mariner
In a new case, Alexander v. City of Round Rock, the U.S. Court of Appeals for the 5th Circuit considers the following question: If the police pull over a driver and the driver indicates he will refuse to answer any police questions, does it violate the Constitution for the police to retaliate against the driver to punish him for refusing to answer their questions?
As I read the 5th Circuit’s decision, the court rules that (a) retaliation against the driver for refusing to answer police questions may involve acts that violate the Fourth Amendment, (b) retaliation for refusal to answer police questions doesn’t clearly violate the First Amendment, and (c) such retaliation doesn’t violate the Fifth Amendment.
The court’s Fifth Amendment ruling strikes me as missing some complications, and I thought I would blog about why I think it’s a tricky issue.
(Excerpt) Read more at washingtonpost.com ...
And they can be quite rough about it.
Counting on courts to limit abuses by law enforcement is a lesson in futility. That ship sailed a long time ago.
I don’t know exactly but I heard about a year ago that the law changed and if you refuse to answer questions you need to explicitly cite the Fifth Amendment of the US Constitution.
In downtown Portland, Maine yes they can, but in rural Maine, NO!
Officer: where are you going?
Perp: south
Officer: where are you coming from
Perp: duh...north
““[a]n individual’s Fifth Amendment right against self-incrimination is implicated only during a custodial interrogation.” Murray v. Earle, 405 F.3d 278, 286 (5th Cir. 2005)””
Yup, but still keep your mouth shut if you are in or out of custody or what you may believe or not believe to be ‘custodial interrogation.’
If things get dicey the only word you say is “Lawyer.”
I will handle it like this Alexander guy did and force the arrest and charges.
As a matter of principle.
“I don’t know exactly but I heard about a year ago that the law changed and if you refuse to answer questions you need to explicitly cite the Fifth Amendment of the US Constitution.”
That is not the question and the 5th Amendment only applies to you if you are in custody.
Officer: “Do have any ID?”
Redneck who is being pulled over: “’Bout what?”
Cops and prosecutors routinely use statements made BEFORE arrest/Miranda in criminal cases.
And it’s against the law to lie to cops.
Nah. Refusing to answer is refusing to cooperate. That’s gets you cuffed until they find out what is going on.
This will be an interesting opinion to read, and I will have to read it in its entirety. My current understanding of the law is that:
1) The police must have a legitimate reason, at least “reasonable suspicion” for any stop of an individual;
2) If there is are legitimate reasons for the stop, the person is required to provide identification. Identity has long been held to NOT be covered by the 5th Amendment self-incrimination clause;
3) Refusal to provide identity in many states a crime, typically a misdemeanor, and the person is likely to be arrested for it;
4) The person stopped is under no obligation to provide any further information other than identity, and can refuse to answer;
5) Whether the refusal to answer gives rise to further suspicions that would extend a stop and give probable cause for full seizure and search is much more open-ended and very much dependent on the facts justifying the stop and the questions asked.
Having said that, I will read the opinion and see if it really does break any new ground.
“That ship sailed a long time ago.”
—
It was worse years ago.
.
Being charged with obstruction of justice, one could axe the judge that very question.
Yes they can. Any other questions?
Not so. The 5th Amendment privilege against self-incrimination applies at all times. It is only when you are in custody that the police are required to tell you about it under Miranda v. Arizona.
“Refusing to answer is refusing to cooperate.”
That is the current interpretation of the law. But if that logic is extended:
Small domestic violence case across the street. Cops knock on your door to find out if you saw or heard anything. They see you looking at them through the window but you refuse to answer the door (because you know why they are there and you are friends with both parties).
Do the cops then decide you are interfering, kick down your door and arrest you?
officdr “Have you been drinkin”?
Redneck: Points to beer label he stuck to his forehead “No sir, honest- look (Points to beer label he stuck to his forehead), See? I’m on the patch.”
“Any other questions?”
Are you a cop? If so, how would the chief view such behavior from his officers? How would the community that employs you and the chief view it?
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