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

Arma1911 said:

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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Here it is...

http://www.youtube.com/watch?v=JE1-NwZ81Ns

skidmark said:

But since he was not in custodial detention he was not entitled to the presence and counsel of an attorney. ...

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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.

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...".

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.

SCOTUS Absurdity

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.'"

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Tudor governments, the Stuart government, and Cromwell's government fought tooth and nail against the right.

In its lust for maintaining power, it was government's refusal to recognize the right that forced the fight. The only reason the government recognized as much of the right as it did is because of the public's outrage over the injustices that reached the boiling point with John Lilburne's fourth treason trial.* The government only backed down because of Lilburne's huge popularity and his repeated pounding the point during his trials. Within a year or two of his last trial, the criminal court in England finally acknowledged officially the right.

The right is not self-executing because the government refused to fully recognize it, because the cases before the bar didn't involve that question. NOT! because the people wanted it that way.

For Alito to claim it is settled law that a witness must claim the right is ignorant at best, disingenuous at worst. That's like saying, "we never conceded that much, so its now settled. And, that's that." Bullhockey! The government, at any time since about 1548 AD could have decided to recognize the right. Mary Tudor could have done it. Elizabeth I could have done it. The Star Chamber court and the High Commission could have done it. Charles I could have done it. Oliver Cromwell could have done it. Or, any of their ministers or judges involved in the cases could have done it. There is no reason on earth the government couldn't, didn't, or hasn't except that government chooses not to. The only reason it is "settled law" (sic) is because the government wanted it that way in direct opposition to the right. If government could have had its way, the right wouldn't be recognized at all, in any degree.


*Yeah. Government hated that freedom fighter Lilburne so bad, they tried him for treason four times. When the dust settled after his last aquittal, Cromwell resorted to just arresting and exiling him without trial.