Obi Wan
Regular Member
Something has bothered me for quite some time.
Let's see if I have this right...
Most of the advice on this forum advocates that upon a law enforcement initiated encounter, the open carrier should immediately present the question: "Am I being detained?".
This seems rather confrontational, and unnecessarily legalistic.
But, there may be a very good reason to establish 'detainment' at the outset of an encounter.
According to this news article, one can be arrested for not answering an officer's questions.
http://news.thelaw.tv/2013/07/22/5-surprising-things-that-may-land-you-in-jail/
"Crazy as it sounds, NOT answering a police officer’s questions could land you in jail for resisting an officer. Even though our Constitution says that you have a right to remain silent, that right only applies once you’ve been arrested. If a police officer is investigating a crime and asks you questions, you could get arrested if you refuse to cooperate with an investigation."
Although I never trust news articles, this one seems to have some merit:
RCW 66.44.370 Resisting or opposing officers in enforcement of title.
"No person shall knowingly or willfully resist or oppose any state, county, or municipal peace officer, or liquor enforcement officer, in the discharge of his/her duties under Title 66 RCW, or aid and abet such resistance or opposition. Any person who violates this section shall be guilty of a violation of this title and subject to arrest by any such officer."
So, the first sentence of the article, "NOT answering a police officer’s questions could land you in jail for resisting an officer", seems to be confirmed.
Article 5 of the United States Constitution states in relevant part:
"No person... shall be compelled in any criminal case to be a witness against himself..."
And so, the first part of the second sentence, "Even though our Constitution says that you have a right to remain silent", seems to be confirmed.
However, the second phrase of the second sentence, "that right only applies once you’ve been arrested", seems to have an internal conflict.
If this is true, it would seem that one may be put in a position of being compelled to answer a question in violation of the 5th amendment, which provides a defense to self-incrimination.
A recent decision of United States Supreme Court, Salinas v. Texas, indicates that remaining silent during pre-arrest questioning cannot be used as an indication of guilt.
If it is acceptable to remain silent during pre-arrest, pre-custody questioning, to avoid self-incrimination, it does not follow that "that right [to remain silent] only applies once you’ve been arrested".
Additionally, the courts are mixed on whether detainment qualifies as arrest.
Courts have stated that 'n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)).
Also, an arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88));
Even so, the police are allowed to perform investigatory detainments in the pursuit of their activities, without formally arresting the detainee, and without advising the detainee of their right to remain silent. Berkemer v. McCarty, 468 U.S. 420 (1984).
Therefore, it is indeed best to determine if one is being detained at the outset of an encounter.
If it is determined that you are not being detained, since pre-arrest and pre-custody comments can be self-incriminating, the best advice is to immediately leave the encounter, without speaking another word.
If it is determined that one is being detained, at the very least you should refuse to answer any questions.
Unless, of course, you are required by law to identify yourself in that jurisdiction.
But in any case, according to http://www.youtube.com/watch?v=6wXkI4t7nuc
you should never agree to be interviewed by the police.
Do I have this about right?
Obi Wan
Let's see if I have this right...
Most of the advice on this forum advocates that upon a law enforcement initiated encounter, the open carrier should immediately present the question: "Am I being detained?".
This seems rather confrontational, and unnecessarily legalistic.
But, there may be a very good reason to establish 'detainment' at the outset of an encounter.
According to this news article, one can be arrested for not answering an officer's questions.
http://news.thelaw.tv/2013/07/22/5-surprising-things-that-may-land-you-in-jail/
"Crazy as it sounds, NOT answering a police officer’s questions could land you in jail for resisting an officer. Even though our Constitution says that you have a right to remain silent, that right only applies once you’ve been arrested. If a police officer is investigating a crime and asks you questions, you could get arrested if you refuse to cooperate with an investigation."
Although I never trust news articles, this one seems to have some merit:
RCW 66.44.370 Resisting or opposing officers in enforcement of title.
"No person shall knowingly or willfully resist or oppose any state, county, or municipal peace officer, or liquor enforcement officer, in the discharge of his/her duties under Title 66 RCW, or aid and abet such resistance or opposition. Any person who violates this section shall be guilty of a violation of this title and subject to arrest by any such officer."
So, the first sentence of the article, "NOT answering a police officer’s questions could land you in jail for resisting an officer", seems to be confirmed.
Article 5 of the United States Constitution states in relevant part:
"No person... shall be compelled in any criminal case to be a witness against himself..."
And so, the first part of the second sentence, "Even though our Constitution says that you have a right to remain silent", seems to be confirmed.
However, the second phrase of the second sentence, "that right only applies once you’ve been arrested", seems to have an internal conflict.
If this is true, it would seem that one may be put in a position of being compelled to answer a question in violation of the 5th amendment, which provides a defense to self-incrimination.
A recent decision of United States Supreme Court, Salinas v. Texas, indicates that remaining silent during pre-arrest questioning cannot be used as an indication of guilt.
If it is acceptable to remain silent during pre-arrest, pre-custody questioning, to avoid self-incrimination, it does not follow that "that right [to remain silent] only applies once you’ve been arrested".
Additionally, the courts are mixed on whether detainment qualifies as arrest.
Courts have stated that 'n determining 'when' a person is arrested, we ask at what point, 'in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.' ' U.S. v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.'89) (quoting U.S. v. Hammock, 860 F.2d 390, 93 (11th Cir.'88)).
Also, an arrest occurs whenever a reasonable person 'would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate[d] with [a] formal arrest.' U.S. v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.'88) (quoting U.S. v. Bengivenga, 845 F.2d 593, 596(5th Cir.), cert. denied, 488 U.S. 924 ('88));
Even so, the police are allowed to perform investigatory detainments in the pursuit of their activities, without formally arresting the detainee, and without advising the detainee of their right to remain silent. Berkemer v. McCarty, 468 U.S. 420 (1984).
Therefore, it is indeed best to determine if one is being detained at the outset of an encounter.
If it is determined that you are not being detained, since pre-arrest and pre-custody comments can be self-incriminating, the best advice is to immediately leave the encounter, without speaking another word.
If it is determined that one is being detained, at the very least you should refuse to answer any questions.
Unless, of course, you are required by law to identify yourself in that jurisdiction.
But in any case, according to http://www.youtube.com/watch?v=6wXkI4t7nuc
you should never agree to be interviewed by the police.
Do I have this about right?
Obi Wan