Posted on 04/20/2017 12:00:22 PM PDT by Mariner
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.
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Just to clear things up they can temporarily detain a person without putting them under arrest. The key question to ask, which you stated is, “am I free to go?”
I understand driving to be a privilege, and not a right. If the cops specifically ask you about your driving, you have the right to clam-up, but don’t be surprised if you lose your license, along with possibly more than that.
There are different circumstances involving a road side chat with a cop that can be quite different. For example, 2 different questions an officer may ask you:
1. Hey! Which way did that guy go?
2. Hey! What are you doing leaning over that dead body?
3. Hey! Is that marijuana in your pants?
In #1, it is almost your civic duty to answer the officer, but you do not have to as it is your Constitutional Right to just sit there and stare dumbly. If he pushes the issue, just remain calm and friendly and repeat that you decline to respond at this time. “I ain’t seen nuthin,’” is also a typical response that I get that usually gets me walking on.
In #2, you should slowly show your hands and request a lawyer.
In #3, you simply respond, “These aren’t my pants.” You’ll get arrested, but you can go to Court confident that you admitted to nothing.
Pretty simple really.
The majority of the law enforcement and judges are worse than the other criminals they posecute.
Well if you are guilty and know you are going to jail anyway that's a good strategy. If you know you did nothing that would warrant an arrest just answer the questions and go on your way.
There is no reason to turn a casual encounter with an LEO into conflict unless you just like jail food. The LEO has better things to do.
The answer short answer is “yes.”
There are three levels of police/citizen encounter: consenual, “Terry Stop” and arrest.
Consensual encounter is the same thing as any encounter you would have with anyone else in public. You are free to talk, or not talk, stay, or not stay in the presence of the officer. The officer does not need any reason to commence a consensual encounter, but he cannot continue it unless he develops a reason to detain you.
“Terry Stop,” so named after Terry v. Ohio. The officer who suspects criminal activity can stop and detain a person long enough to establish their identity and only so long as is necessary to confirm or dispel his suspicions. His suspicions must be based on articulable objective observations. He may frisk for weapons, but again, only if he additionally has articulable objective observations that suggest you are armed and pose a threat. His inquiry can only be toward his suspicions and nothing else, and once he has not further reason to detain, must let you go. Miranda warnings are not required.
Arrest: It must be based on a higher evidentiary standard of probable cause to believe you have committed a crime, and he must give Miranda warnings before asking questions.
The tricky thing is determining when a Terry Stop has become a full blown arrest and Miranda applies.
A car is not public property.
Looks like he has to answer questions before they take him into custody, but he doesn't have to answer those same questions after they take him into custody for not answering the questions.
That makes perfect sense.
By the way, I haven't researched it now, but at one time I thought that if the police stopped you for a traffic offense you were in their custody.
Indeed, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.”
What if I'm at a trial as a witness but not on trial as the defendant? Can I "take the Fifth" because I am at a trial or not because I am not on trial?
“I avoid handcuffs as much as possible.”
Better ten minutes in cuffs with Barney Fife than ten years in a cell with Lonesome Earl.
I am not a cop. Anymore questions?
The headline ask “Can...?”. The answer is yes. If it had asked, “is it lawfully permitted” or “does it violate the fifth amendment”, then the answer would be no. But cops can and do retaliate.
“[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial.”
= = =
Then why the Miranda?
You have the right to remain silent and refuse to answer questions.
Anything you say may be used against you in a court of law.
But you are not in court, or at trial yet, right????
But I am only a Common Sense proletariat, not versed in legal-speak.
“Not to me. I avoid handcuffs as much as possible.”
Some of the best times of my life were had wearing handcuffs. But I also always carry my own handcuff keys.
The last time this came down from a federal court, the ruling was that you had to break silence enough to convey that you were invoking your 5th Amendment rights, else it might be construed as obstructing an investigation. Which is why I also always carry a ‘business’ card in my wallet stating that I am invoking my 5th AND my 4th Amendment rights. No, you MAY NOT search me or my car, and no, I AIN’T TALKING unless my lawyer is present. That way I can keep my mouth shut and the card says it for me.
Still, you can beat the rap but you can’t beat the ride. If they want to take you downtown and put you in a box, they’re gonna. You can either accept that reality or you can give in to their intimidation, it’s your choice.
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