Police lying to us

va_tazdad said:

I had a conversation with a former ABC Agent that is now an FBI agent that said he lies all the time while conducting "investigations" and sees nothing wrong with it. He claimed the only time he was required to tell the truth is under oath per "the courts".

Speaks volumes about the police and the courts!

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Citizen said:

Yes, he did exercise his right--he went silent. And, his exercise of a right--his silence--was used to incriminate him. In this case, because of the timing of when he went silent.

This is just a court-room version of what many of us already discussed years ago about street encounters with police. We already figured out years ago that it looks bad to the cop and would increase his suspicions if we silenced during a police encounter rather than right at the beginning. Same thing here, only in this case it became evidence in a courtroom.

Its just a matter of the timing, TFred. Do I really have to do all the imagining here? Today the silence about whether matching shotgun shells or whatever will be found at your house is evidence. Tomorrow, for sure and without any doubt, it will be mid-silence about anything will justify suspicion. And, hey, if mid-silence can be used as evidence, it obviously follows that mid-silence must also give probable cause for a search. Or, Oh! He was friendly until we asked his name. Then he went silent. He must have a warrant or restraining order. "Gimme your ID!"

Also, its curious how the cops set him up. They chatted innocently enough about this and that. But, he went silent the moment they made it clear they were investigating him rather than just investigating the crime. How about that as a technique? You think you're doing your civic duty helping a cop investigate something, maybe a missing child when its not even known whether the child wandered off or was kidnapped. And, then the cop starts getting a little personal, investigating you. You go silent, and later when the body is found in the woods, and you're the handiest suspect, and the kids fingerprints are found on your car from when his ball got stuck under your car, you find yourself in a huge heap of trouble even though you were fishing but can't prove it.

The way the police handled the defendant's questioning in the instant case is far, far too easy to ensnare a innocent person. Set him up with tame questions, then go for the meat and see whether he goes silent. They got him if he goes silent. They got him if he tells the truth but the police have evidence that contradicts him.

Exercising a right is exercising a right. This case was just another in a long, long series of government driving a wedge into a right.

One criminal who gets away only affects the people he comes into contact with. Government affects every single person in its jurisdiction. And, in the instant case, we don't know that this criminal would have gotten away with it without this police tactic or ruling. Meaning, the police might still have come up with enough evidence to convict if they had just done proper police work without playing games with our rights.

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JoeSparky said:

I have had an ON DUTY LEO tell me that ONLY CRIMINALS INVOKE THEIR RIGHTS going on to say that the INNOCENT DON'T!

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TFred said:

We can agree it was slimy police work - unethical even. Many of these kinds of folks will have to one day answer to their maker.

I just can't reach the conclusion that the government compelled him to incriminate himself. He talked. He incriminated himself. How was he compelled?

TFred

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“Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding.” United States v. Drayton, 536 U.S. 194, 207 (2002). It is the prosecutor’s burden to prove that consent was freely and voluntarily given. Schneckloth, 412 U.S. at 222. Whether or not consent to a search was voluntarily given “is a question of fact to be determined from the totality of all the circumstances.” Id. at 227.

“Consent to a search must be unequivocal, specific and intelligently given and it is not lightly to be inferred.” Although the consent need not be oral, mere acquiescence is not enough. Additionally, the Commonwealth bears the burden of proving that consent was in fact given, and “that burden is heavier where the alleged consent is based on an implication.”

Lawrence v. Commonwealth, 40 Va. App. 95, 102, 578 S.E.2d 54, 58 (2003) (quoting Jean-Laurent v. Commonwealth, 34 Va. App. 74, 78-79, 538 S.E.2d 316, 318 (2000)). The burden is “‘upon the officer to obtain consent, not on [Henderson] to affirmatively deny consent.’” Id. at 103, 578 S.E.2d at 58 (quoting Jean-Laurent, 34 Va. App. at 80, 538 S.E.2d at 319). The law requires an unequivocal and specific consent to search; an ambiguous response to a request to search is not sufficient. See Jean-Laurent, 34 Va. App. at 80, 538 S.E.2d at 319. Further, an officer’s warrantless search prior to requesting consent implies that the person asked has no choice in whether or not the officer searches. See Walls v. Commonwealth, 2 Va. App. 639, 646, 347 S.E.2d 175, 179 (1986).

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In this case, I find as a matter of fact that the officers had completed all activities incident to the stop, except serving the citation and returning the license, by the time they returned to the defendant's vehicle. Had they given those items to the defendant at that point, there would be no basis for challenging what happened next.

But Officer Reinhart did not give the defendant the license and citation. He was still holding them when he asked if the officers could search the vehicle. At that point, the officer had abandoned the prosecution of the traffic stop and embarked on a new course of investigation. Under United States v. Everett, 601 F.3d 484, 495 (6th Cir. 2010), this "bespeak a lack of diligence" and, under the totality of circumstances, transformed an ordinary traffic stop into an unreasonable seizure.

The dispositive issues are: 1) did the ensuing questions occur during a period, albeit brief, of unlawful detention, and, if so, whether such detention tainted the defendant's consent, even if deemed voluntary; and, 2) alternatively, was the totality of the circumstances such as to create coercive pressures rendering his consent involuntary.

Because Officer Reinhart had his license and the ticket, the defendant was not free to leave, and thereby make clear he did not want to continue talking with the officer. No reasonable driver would leave following a traffic stop unless the officer, in effect, has given him leave to do so by giving back his driver's license and either a ticket or a written or verbal warning.

The tainting effect of keeping the defendant in place by holding onto the license and ticket directly led to Officer Picking's observation of the bulge and seizure of the firearm. While unable to leave, the defendant agreed to Officer Reinhart's request to search. This, in turn, led directly to the officer's instruction, albeit itself otherwise sensible and lawful, to the defendant to get out of the car. The defendant having complied, as he had to, Officer Picking saw the bulge and reached for and took the gun. Thus the taint of not being free to leave when the law allowed the defendant to do so extends to seizure of the weapon. See United States v. Culp, 860 F. Supp. 2d 459, 466-68 (W.D. Mich. 2012) (granting motion to suppress evidence because officer unlawfully prolonged traffic stop which directly led to seizure of contraband).

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