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 ...
“Refusing to answer is refusing to cooperate. That’s gets you cuffed until they find out what is going on.”
That’s alright and much better than being questioned.
“Cops and prosecutors routinely use statements made BEFORE arrest/Miranda in criminal cases.”
Yes, and that is why you never talk.
If you don’t talk, there are no statements to be used against you.
Courts sometimes get the Constitution wrong.
If the 1st Amendment says “Congress shall make no law respecting an establishment of religion” and then a Court case rules that Islam is now the national religion, is anyone obligated to honor that ruling, since anyone with an IQ > 20 can tell the Constitution is being violated.
Your domain is protected from unlawful entry unless they suspect a crime in progress.
Your car is operating on a government road.
Not to me. I avoid handcuffs as much as possible.
Is “refusing to cooperate” or “interfering with an officer” a crime?
Would that not be a crime that warrants forced entry?
Nope. Police have the right to detain you in open space. They need a warrant to enter your abode unless there is a crime being committed.
In your house, you can tell them that you don’t want to get involved.
Cop pulls Boudreaux over.
Says I notice your eyes look a little red, have you been drinking?
Boudreaux says, No sir, I notice your eyes look a little glazed, have you been eating donuts?
I suppose the same would apply in any public place...walking down the street, at McDonalds etc.
I’m sitting here wondering why it’s not used more frequently when folks refuse to talk to the police as I’m certain that occurs all the time. I’ve done it myself over something I saw which I thought was trivial.
And would do so again.
Maybe someday I’ll be arrested and charged with “interfering”. If so, I would most certainly request a jury trial.
Cop pulls me over.
Writes up speeding ticket.
Asks: Do you have anything in there I should know about?
Me: I don’t think so.
Cop: What do you mean, you don’t think so?
He did not push it.
True exchange. It is burned into my memory, with vivid color images.
As I left the scene as quickly as possible, my kids in the back seat said, Dad, the answer is NO.
After that, I agree.
Maybe the FIFTH circuit should read the FIFTH amendment.
You are NOT safe in answering questions by the police just because they haven’t Mirandized you. They may still be able to use your answers against you in court.
” the interviewee must apparently say words to the effect of, “I invoke my privilege against self-incrimination.””
Let me repeat that.... “I invoke my privilege against self-incrimination”.
Then, you need not answer ANY questions. You are not a lawyer. How could you know what questions might self incriminate you? They, on the other hand, know exactly which seemingly harmless questions to ask YOU!
Answering some questions and then not answering another can be used against you. The Ah Hah! non-answer. (I just made that name up).
Don’t HELP the police convict you. If you want to plead “guilty” (because you are, or feel responsible), go ahead, but ONLY AFTER YOU TALK TO A LAWYER! Until then, say NOTHING!
It’s not getting away with anything. It is your CONSTITUTIONAL RIGHT as an American citizen.
http://www.nolo.com/legal-encyclopedia/when-how-invoke-your-right-silence.html
If you are in a car, you have to cooperate. If you are just walking around, you have a bit more leniency.
But think this way. Say you are a serial killer. You refuse to cooperate with the police, get released and we later find out you were the killer after all. What is the public going to say about the police?
OK, I read the opinion. Thank you for the link. It is not so bad; in fact, the guy won against the cops on most of the issues. I’ll analyze briefly.
1. The case was on an appeal from a motion to dismiss granted by the Circuit Court. Basically, the police department got the district Court judge to toss it right after it was filed.
2. The Court of Appeals said the district court was wrong and now the case can go forward as the facts alleged are sufficient;
3. The plaintiff is a long way from winning the case, but,
4. The facts alleged are sufficient, that if proven, show the police violated this man’s 4th Amendment rights by stopping him without reasonable suspicion;
5. Because they had no reasonable suspicion for the initial stop, any police conduct therafter was unlawful;
6. The Court did say he didn’t have a 5th Amendment right against self-incrimination, but I’m not entirely comfortable with that. I discussed it more below.
7. The Court did rule against the guy on his retaliation claim, that the police “punished” him in retaliation of his exercise of 5th Amendment rights (since they said they were not implicated to begin with);
So all in all, other than where I disagree with them on the 5th Amendment issue, the case does not appear to permit excessive police misconduct. In fact, this one is overall a win for civil rights against the police.
PS: On further review, regarding the 5th Amendment privilege and not being in custody, it’s probably factually better to look at it as a 4th Amendment issue than a 5th Amendment issue. If the police approach you and ask you a question, you don’t have the 5th Amendment implicated at that point. You are not seized under the 4th Amendment, so you are “free to go.” You can just smile, say “excuse me” and go about your business. Once the police say “wait a minute” and stop you, you ask “am I under arrest? Why are you stopping me?” If they don’t have an answer, you say “thank you have a nice day” and walk away.
I do believe the police cannot create a reasonable suspicion because you decline to speak to them in a consensual encounter.
charged with “interfering”.
= = =
Hmmm.
If the cop just wants to ‘talk’, what are you interfering with? Some investigation?
On the other hand if he has questions about a specific suspicious incident, that may be closer to interfering.
The Public Defender in our town told me Do not talk to the Police. Then told of a man walking home in a rural area. Sheriff stopped and started talking to him. Man ended up in jail. Man may have been on probation, but was doing nothing wrong or unlawful. Except he talked ...
1. Fifth Amendment
Alexander’s argument that Garza and the officers retaliated against him for exercising his Fifth Amendment right not to answer Officer Garza’s questions is easily disposed of. As this court has noted on multiple occasions, “[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) (internal quotation marks omitted); see also United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015) (same). Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.” Murray, 405 F.3d at 285; see also Winn v. New Orleans City, 919 F. Supp. 2d 743, 752 (E.D. La. 2013) (same). In other words, the Fifth Amendment protects a defendant from being coerced into making an incriminating statement, and then having that statement used against him at trial. But Alexander was never tried. His Fifth Amendment right against self-incrimination was not violated. 4
*4 The parties spill much ink on the issue of whether Miranda rights attach during non-custodial interrogations. That argument is a red herring in this case, because any incriminating statements Alexander might have theoretically uttered had he answered Garza’s questions could not have been used against him in court anyway—there was no trial.
Only a lawyer could consider the above to be anything resembling a reasonable statement. I'd call it insanity, but those of us who actually read the dreck that originates in our legal system these days would not find it unusual at all. It seems that the author of the opinion thinks that as long as there was no trial (because ultimately the state had no case against him, the police can demand that he answer any question they might have. It's obvious from the rest of the decision's discussion of this that they feel the government has the right to compel someone to speak. It was an illuminating look at government-think.
My brother is a police officer and tells the story of pulling over about 20-30 bicyclist riding in the 2-4 abreast and taking up the whole lane of travel. He asked the all to produce ID. They refused until he told them he could cite them with failing to follow a lawful request of a police officer.
Then he wrote them all a ticket each for impeding traffic as they had more than 5 cars following them at the time they were stopped.
This was back in 1983
I say in all seriousness that the person in that example has answered two questions he was not required to answer.
“If you are in a car, you have to cooperate. If you are just walking around, you have a bit more leniency.”
Do you know what the logic is there? I find it fascinating.
Yeah, I agree.
If the cops pull you over, you are in police custody. You are not free to leave.
And you should have a 5th Amendment right.
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