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Thread: For those of us that refuse to answer questions or show ID

  1. #1
    Accomplished Advocate peter nap's Avatar
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    For those of us that refuse to answer questions or show ID

    One of the hardest things for new OC'ers is refusing to cooperate with a police contact. They hedge and fumble but often don't say "I'm not going to answer and I don't have to". I have a recording of a Roanoke Cop telling Tosta Dojen he only had the right to remain silent if he was guilty of a crime

    Anyway.....the Supreme Court recently ruled on your right to remain silent. Decide for yourself if it's relevant.
    The U.S. Supreme Court ruled 5-4 Monday in a Texas murder case to narrow a suspect's right to remain silent.
    Justice Samuel Alito wrote the majority opinion, with the rest of the court splitting along its four conservatives, four liberals ideological fault line.
    In December 1992, brothers Juan and Hector Garza were shot and killed in Hector's Houston apartment. Police found no forced entry but did find spent shotgun shells. A neighbor heard the shots and described the getaway car as a dark colored Camaro or Trans Am.
    Police discovered Genovivo Salinas might have attended a party in the apartment the night before the early morning killings.
    Police went to Salinas' home where he lived with his parents and discovered that his mother mother had a dark blue Camaro or Trans Am. Police also found a shotgun and asked Salinas to accompany them to the police station for questioning and fingerprints, without placing Salinas in custody or reading him his rights.
    Salinas voluntarily answered some questions, but went silent when asked whether ballistics would match the shell cases found at the crime scene.
    At Salianas' murder trial, prosecutors used his silence under questioning as evidence of guilt. He was convicted and appeals courts rejected his claim that the prosecutors use of his silence violated the Fifth Amendment -- which gives a defendant the right not to incriminate himself.
    The Supreme Court affirmed the lower courts.
    Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Alito wrote for the narrow majority. "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it.'"
    Speaking for the dissenters, Justice Stephen Breyer said: "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning. ... The Fifth Amendment prohibits prosecutors from commenting on an individual's silence where that silence amounts to an effort to avoid becoming 'a witness against himself.'"
    ---
    The Court also struck down Arizona's Voter ID law. I haven't read it yet so I don't know if it'll change Va's Voter ID law that goes into effect next month. A few of us will not vote because we've had enough ID'ing and aren't going to play anymore. Hopefully this ruling will help.

    That is an OC issue BTW. No vote means no power.

  2. #2
    Regular Member TFred's Avatar
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    From Peter Nap's quoted summary:

    Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Alito wrote for the narrow majority. "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it.'"
    Which begs the question, had Salinas explicitly invoked the Fifth Amendment protection, instead of remaining silent, would the prosecutor have been permitted to mention that fact to the jury during the trial?

    It almost sounds like every police encounter from now on should start with, "I am hereby notifying you of my intent to claim the protection of the Fifth Amendment against self-incrimination, I am going to stop talking to you now."

    TFred
    Last edited by TFred; 06-17-2013 at 03:33 PM.

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    Accomplished Advocate user's Avatar
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    That defendant made the mistake of going with them voluntarily and answering some of their questions. When asked, say, "Thank you, but I prefer not to.", or "I would rather not chat, thank you." And if they start getting nasty, say, "I want my lawyer." and remember the five magic letters: K Y B M S! ("Keep Your Big Mouth Shut"). If you talk to them at all, but then refuse to talk about certain subjects, that's a problem. So don't talk to them at all, that way no one can tie your refusal to talk with any particular issue. And if someone tries to do so at trial, you can defend by saying, "That's not it at all - I just didn't want to talk to the cops, period; it had nothing to do with X, Y, or Z."
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    Campaign Veteran skidmark's Avatar
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    Hear! Hear!

    SCOTUS has already said (I forget the case but it's hiding up in News & Political Alerts) that you must, even after being read your Miranda rights actually say "I want to talk to a lawyer" before the cops must stop pestering you until an attorney shows up. In that case they said that even though the appellant was in full custodial detention (stainless steel bracelets and everything) simply refusing to say anything was not actually, you know, like really invoking invoking his right not to say anything without an attorney present and to not say anything until/unless advised by said attorney.

    And now SCOTUS says that if you are not under custodial detention your right against self incrimination does not exist. I guess they are basing it on the theory that you could just get up and ask them to validate your parking slip instead of sitting there trying to ignore them and suck up their free coffee. (But wait! Since the cops brought him to the stationhouse for questioning, do they have to drive him back home again? SCOTUS says "No".)

    I tell you, there are days when it feels like if I don't check http://howappealing.law.com/ they are going to slip another slice of the stupid pie past me.

    stay safe.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by user View Post
    That defendant made the mistake of going with them voluntarily and answering some of their questions. When asked, say, "Thank you, but I prefer not to.", or "I would rather not chat, thank you." And if they start getting nasty, say, "I want my lawyer." and remember the five magic letters: K Y B M S! ("Keep Your Big Mouth Shut"). If you talk to them at all, but then refuse to talk about certain subjects, that's a problem. So don't talk to them at all, that way no one can tie your refusal to talk with any particular issue. And if someone tries to do so at trial, you can defend by saying, "That's not it at all - I just didn't want to talk to the cops, period; it had nothing to do with X, Y, or Z."
    Maybe jumping to a whole different horse here... a few weeks ago I went through one of those Friday night road blocks. The LEO was asking me several questions, where I had been, where I was going, I was rather non-responsive, heading that way (pointing ahead), coming from that way (pointing behind). He was not happy with these answers... I suspect he wanted to hear me speak enough words to ensure I was not intoxicated. I guess it's not easy at the time, but you would still recommend answers such as, "I really prefer not to chat with you.." ?

    TFred

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    Quote Originally Posted by TFred View Post
    a few weeks ago I went through one of those Friday night road blocks.
    Just curious, what jurisdiction was this in? F'burg, Stafford, or Spotsyl'tucky? (Just guessing that it was one of the three.... probably Stafford, if I really had to narrow it to one guess).

  7. #7
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by TFred View Post
    Maybe jumping to a whole different horse here... a few weeks ago I went through one of those Friday night road blocks. The LEO was asking me several questions, where I had been, where I was going, I was rather non-responsive, heading that way (pointing ahead), coming from that way (pointing behind). He was not happy with these answers... I suspect he wanted to hear me speak enough words to ensure I was not intoxicated. I guess it's not easy at the time, but you would still recommend answers such as, "I really prefer not to chat with you.." ?

    TFred
    I haven't gone through a checkpoint for a long time Tfred, but I have found User's letter to be an indispensable tool.

    So far my favorite encounter was with a Richmond LEO who was insisting I tell him why I was videoing. I gave him the letter and he read it. Then I said "Could I ask one question?". He thought I'd blinked so he said "Sure!".

    I said "Would you like to use my cell phone to call him, the number's programmed in".

    He said that wouldn't be necessary.

  8. #8
    Regular Member TFred's Avatar
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    Quote Originally Posted by Blk97F150 View Post
    Just curious, what jurisdiction was this in? F'burg, Stafford, or Spotsyl'tucky? (Just guessing that it was one of the three.... probably Stafford, if I really had to narrow it to one guess).
    It was in Spotsy, but only about a half mile from the city line.

    TFred

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    Regular Member TFred's Avatar
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    Quote Originally Posted by peter nap View Post
    I haven't gone through a checkpoint for a long time Tfred, but I have found User's letter to be an indispensable tool.

    So far my favorite encounter was with a Richmond LEO who was insisting I tell him why I was videoing. I gave him the letter and he read it. Then I said "Could I ask one question?". He thought I'd blinked so he said "Sure!".

    I said "Would you like to use my cell phone to call him, the number's programmed in".

    He said that wouldn't be necessary.
    How come we don't have a sticky post with all his references? His website doesn't have links to them any more. (This letter to LEO, the bill of sale template, the notes from his classes...) All very valuable things to have handy.

    TFred

  10. #10
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by TFred View Post
    How come we don't have a sticky post with all his references? His website doesn't have links to them any more. (This letter to LEO, the bill of sale template, the notes from his classes...) All very valuable things to have handy.

    TFred
    There may be reasons we don't understand TFred but I may ask if can post them on my site as a client. I guess it depends on the reasons?????????

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    Regular Member Repeater's Avatar
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    Quote Originally Posted by TFred View Post
    Maybe jumping to a whole different horse here... a few weeks ago I went through one of those Friday night road blocks. The LEO was asking me several questions, where I had been, where I was going, I was rather non-responsive, heading that way (pointing ahead), coming from that way (pointing behind). He was not happy with these answers... I suspect he wanted to hear me speak enough words to ensure I was not intoxicated. I guess it's not easy at the time, but you would still recommend answers such as, "I really prefer not to chat with you.." ?

    TFred
    Imagine submitting to a 'Field Sobriety Test' while OC'ing.

    Sure.

  12. #12
    Regular Member TFred's Avatar
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    Google helped me out a bit:

    http://forum.opencarry.org/forums/sh...ent-quot-cards

    TFred

  13. #13
    Regular Member WalkingWolf's Avatar
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    What I gather is they did not use his not talking against him, they used his talking and then stop talking at certain questions against him. Touchy but I agree with the courts. He should have asked for a attorney from the start.
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    Regular Member Vitaeus's Avatar
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    An oldie, but still worth the time....

    "Don't talk to the police"

    http://www.youtube.com/watch?v=6wXkI4t7nuc

    "Am I free to go?", if yes then GO!

    If not, then see the above video.

  15. #15
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by WalkingWolf View Post
    What I gather is they did not use his not talking against him, they used his talking and then stop talking at certain questions against him. Touchy but I agree with the courts. He should have asked for a attorney from the start.
    But since he was not in custodial detention he was not entitled to the presence and counsel of an attorney.

    Pay attention - that little pea only seems to be under the cup you think it is under.

    If "Am I free to go?" = YES. then GO!

    If "Am I free to go?" = NO, then ask for an attorney and KYBMS till he gets there.

    Technically the cops can talk to you/ask questions that have nothing to do with the crime they are investigating/charging you with, even after you invoke your Miranda rights and before the attorney shows up.

    stay safe.
    Last edited by skidmark; 06-17-2013 at 11:50 PM.
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    Quote Originally Posted by TFred View Post
    Am I remembering correctly though that not too long ago someone (Peter?) had pointed out an error in the language and had posted a corrected copy? This seems to be the original (first version). I haven't yet found that discussion (in a Google search as forum search is....painful).
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    Activist Member nuc65's Avatar
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    Quote Originally Posted by peter nap View Post
    One of the hardest things for new OC'ers is refusing to cooperate with a police contact. They hedge and fumble but often don't say "I'm not going to answer and I don't have to". I have a recording of a Roanoke Cop telling Tosta Dojen he only had the right to remain silent if he was guilty of a crime

    Anyway.....the Supreme Court recently ruled on your right to remain silent. Decide for yourself if it's relevant.


    The Court also struck down Arizona's Voter ID law. I haven't read it yet so I don't know if it'll change Va's Voter ID law that goes into effect next month. A few of us will not vote because we've had enough ID'ing and aren't going to play anymore. Hopefully this ruling will help.




    That is an OC issue BTW. No vote means no power.
    SCOTUS struck down AZ law because they were using a federal form and requiring proof of citizenship while using the federal form. If they use the state form (not a federal voter form) then they can require proof of citizenship, but use of the federal form requires use of federal law. I think (I am not sure of this) that VA uses a state form so VA can do what they want. I think Va only is requiring picture ID not proof of citizenship but I have been too busy to really read into the new requirements.



    I found an interesting article about it: "http://pjmedia.com/jchristianadams/2013/06/17/left-loses-big-in-arizona-supreme-court-case/"

    excerpt....
    Next, when voters use a state, as opposed to a federal, form, they can still be required to prove citizenship. The federal form is irrelevant in that circumstance.
    After the decision today, states have a green light to do double- and triple-checking even if a registrant uses the federal form. The Left wanted the submission of a federal form to mean automatic no-questions-asked registration. This is a big loss for the Left because now states can put suspect forms in limbo while they run checks against non-citizen databases and jury-response forms. Another significant victory in today’s decision. The Left wanted to strip them of that double-checking power.
    The decision today is a great example of how conservatives can be distracted by squirrels running past. It is understandable and forgivable because they aren’t daily immersed in the long-term election-process agenda of the left-wing groups. Nor do they daily involve themselves with the details of election process. But having been in the “preemption wars” for nearly a decade, I can assure you this case is a big win, even if it doesn’t appear so at first glance.
    Last edited by nuc65; 06-18-2013 at 08:15 AM. Reason: add link
    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

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    Accomplished Advocate peter nap's Avatar
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    Thanks Nuc!
    I read it and it doesn't look like anything will change here.

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    Recommended video- "Do you know your constitutional rights?"

    I have really learned a lot reading the posts on this forum and on some of the other state's forums. Some of the discussions have lead me to search Youtube for additional videos/information.

    One video that I came across is titled "Do you know your constitutional rights?" posted by Jeff Benner on April 26, 2012. If I were computer savvy I would post a link, sorry. However, it is easy to find if you put the title in your YouTube search.

    It is a good compilation video of several interactions with LEO concerning open carry, requirement to show ID when asked, rights to film and record audio, etc. It is only about 9 minutes long. Good to see folks standing up to Illegal demands/questioning by LOEs and understanding the constitutional protections we have.

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    Quote Originally Posted by Arma1911 View Post
    I have really learned a lot reading the posts on this forum and on some of the other state's forums. Some of the discussions have lead me to search Youtube for additional videos/information.

    One video that I came across is titled "Do you know your constitutional rights?" posted by Jeff Benner on April 26, 2012. If I were computer savvy I would post a link, sorry. However, it is easy to find if you put the title in your YouTube search.

    It is a good compilation video of several interactions with LEO concerning open carry, requirement to show ID when asked, rights to film and record audio, etc. It is only about 9 minutes long. Good to see folks standing up to Illegal demands/questioning by LOEs and understanding the constitutional protections we have.
    Link to video mentioned above: http://www.youtube.com/watch?v=JE1-NwZ81Ns

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    Regular Member Curmudgeon's Avatar
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    Quote Originally Posted by Arma1911 View Post
    I have really learned a lot reading the posts on this forum and on some of the other state's forums. Some of the discussions have lead me to search Youtube for additional videos/information.

    One video that I came across is titled "Do you know your constitutional rights?" posted by Jeff Benner on April 26, 2012. If I were computer savvy I would post a link, sorry. However, it is easy to find if you put the title in your YouTube search.

    It is a good compilation video of several interactions with LEO concerning open carry, requirement to show ID when asked, rights to film and record audio, etc. It is only about 9 minutes long. Good to see folks standing up to Illegal demands/questioning by LOEs and understanding the constitutional protections we have.

    Here it is...

    http://www.youtube.com/watch?v=JE1-NwZ81Ns
    While many claim to support the right to keep and bear arms, precious few support the practice.

  22. #22
    Accomplished Advocate user's Avatar
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    Quote Originally Posted by skidmark View Post
    But since he was not in custodial detention he was not entitled to the presence and counsel of an attorney. ...
    Actually, a person is absolutely entitled to counsel anytime he feels like it (otherwise, Skid's exactly right in his comments). But as an evidentiary matter under the Fourth and Sixth Amendments, courts aren't going to suppress information obtained by interrogation in the absence of counsel where there is no custodial arrest (whether express or implicit); and since that's true, it's best not to engage in chit-chat with the cops at any time. So if you say, "I want my lawyer", and they say, "You're not entitled to a lawyer because you're not under arrest"; then you can say, "Ok, then, I'm leaving now." or, "Ok, then, you're not entitled to hear me talk."

    A response such as, "Thank you, but I prefer not to chat right now, officer." is pretty much always a good answer, because it is polite and articulate. And if the cop insists, that's when you say, "Am I under arrest?"; "Am I free to go?"; and "I want my lawyer."

    That last one is always the most amusing, because the standard response is, "Why do you think you need a lawyer; what have you been up to that makes you feel guilty like you need a lawyer?" And the simple answer to that is, "Because you're holding me here against my will, so I must be under arrest. That being the case, I want my lawyer."

    Another thing to keep in mind: at checkpoints, the main thing they're looking for is DUI cases. And the standard litany that they all recite in court is as follows: "His eyes were bloodshot, his speech was slurred, he was uncoordinated in his movements, and I detected a strong odor of an alcoholic beverage about his person." Well, if you can rattle off a sentence like, "Thank you, but I don't feel like engaging in any chit-chat this evening, officer.", then it's going to be hard for him to establish probable cause on the basis of slurred speech. (I did have a client, once, who had a bit of cerebral palsy, and whose eyes were always bloodshot, always had slurred speech, and always was very uncoordinated in his movements. And he would light cigarettes while driving, which made him swerve all over the road.)

    My website moved from GoDaddy to Network Solutions. I didn't like GoDaddy's sexist advertising and it seems to me there was some issue with their advertised positions on personal defense rights. Besides, Network Solutions is located in Virginia, which makes it easier for me to deal with them (and harder for someone to sue me in Arizona where GoDaddy is located). (Side note, I don't like Kahr's advertising or where they're located, either, but I've got four of their products; they have terrific customer service.) In making the move, I found I didn't have time to set up everything the way I had it before - it took me months just to get the website working at all (I write the HTML myself). Someday, I'll get it into better shape. Those course notes may be out of date, anyway.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  23. #23
    Regular Member Repeater's Avatar
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    Orin Kerr's Analysis

    Somewhat dismal:

    Do You Have A Right to Remain Silent? Thoughts on the “Sleeper” Criminal Procedure Case of the Term, Salinas v. Texas
    [A]s a practical matter, it seems unlikely that a person questioned by a police officer outside of custody is going to formally assert his Fifth Amendment right. Most people are not lawyers, and they don’t think in terms of legal formalities. And outside of custody, the police don’t have to give warnings or talk about the law. They don’t have to mention the right to remain silent and ask a suspect to waive it, knowing that the suspect can later change his mind. They don’t need to bring it up at all. And that means that they can construct the conversation in the kind of way that makes it extraordinarily awkward for a person to play lawyer and assert his Fifth Amendment privilege. Of course, a really smart suspect will just say that they’re busy so they don’t have time to talk to the police at all. (“I just can’t schedule you in anytime soon. How is 2017 for you?”) But the suspect who mistakenly thinks he can talk his way out of trouble may be in for a surprise.

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    I'm thinking maybe the Miranda reading should be updated. Something like, "You have the right to verbally invoke your right to remain silent, if you do not verbally invoke this right, anything you say, or do not say, can and will be used against you in a court of law...".

  25. #25
    Regular Member WalkingWolf's Avatar
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    The problem with this case is the suspect was answering questions, and then stopped. It is his behavior that goes against him. A police officer can certainly testify to behavior, and that appears what happened in this case. I still feel the case is touchy/iffy, but he should have refused to answer questions from the start. It is not just your words that can be used against you.
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