This SCOTUS decision creates a catch-22, with several angles. (These are subject to whimsical change, but I believe are accurate.)
1) Many police departments have long used the technique that they are not arresting a person, they are detaining them, so do not have to give them a Miranda warning. If you ask if you are being detained, they will likely respond that “it depends on what you have to tell me.”
2) The federal courts have found that if you say anything before getting your Miranda warning, it can be used against you, as a “spontaneous confession.”
3) The federal courts have also found that when someone is arrested and Mirandized, if the police release them from arrest, they are no longer Mirandized. And if you gave information during the Mirandized period, while they cannot use it *directly* against you, they *may* use that information to discover evidence that they *can* use against you. Then they can re-arrest and re-Mirandize you, and use that evidence against you in court.
4) Once a police investigation has begun, the right of privacy is very sketchy indeed. Recorded evidence can be surreptitiously obtained by putting two suspects together in the back of a patrol car, in restrooms, or any other room under police control, *or* that could be considered as a “public place” in nature.
5) Police use numerous tricks to obtain DNA and fingerprints from objects a suspect has touched in a place under their control or in a public place. This is why you never accept drinks, even water, from the police, even if they have kept you from drinking for hours. If you have to drink, use a small piece of paper to pick up the cup, pour the water into your mouth without touching the cup with your lips, set the cup down and eat the small piece of paper.
6) With this latest SCOTUS decision, there will have to be a future decision on whether if you invoke your rights while being detained, if they do indeed apply, or if the police can ignore them. Thus, the best bet is to invoke your rights, then in response to any other statements or questions, say “Please direct all statements and questions to my attorney.”
In effect, it is like a POW giving his name, rank, serial number and date of birth, nothing more. And remember to speak to no one else until you are in a safe and private place, far away from the police.
“Officer, am I free to go, or are you detaining me?”
“I am not resisting, but I am going to remain silent.”
“I understand you are doing your job, but I never consent to a search.”
that’s a lot of good information right there. If they’re going to treat us all like criminals, I guess we have to start thinking like criminals.
“Many police departments have long used the technique that they are not arresting a person, they are detaining them, so do not have to give them a Miranda warning. If you ask if you are being detained, they will likely respond that “it depends on what you have to tell me.””
That is exactly what I was thinking. You could be making a statement thinking you are a witness. Then at some point you realize you are the suspect by the tone of the questioning and shut up. Now the problem is you would probably have to take the stand to tell why you answered the way you did. Also you may not want to take the stand so your answer will not be heard.