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Thread: Envoking your right to remain silent requires YOU to remain silent

  1. #1
    Regular Member wrearick's Avatar
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    Envoking your right to remain silent requires YOU to remain silent

    Most on here know this but a good reminder of why you should KYBMS (Keep your big mouth shut) when dealing with Law Enforcement.

    http://pilotonline.com/news/local/cr...3c0e6b9b3.html

    a companion rule is Ask often if you are free to go and if you are ----> GO!

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    Jon Babineau, a veteran defense attorney, went a step further. He said no good can come from a person talking to police if there is any chance he or she could be a suspect.

    “Unless you are seeking immediate help, don’t say a word,” he said. “You don’t know what could be twisted back on you.”
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Nightmare View Post
    Jon Babineau, a veteran defense attorney, went a step further. He said no good can come from a person talking to police if there is any chance he or she could be a suspect.

    “Unless you are seeking immediate help, don’t say a word,” he said. “You don’t know what could be twisted back on you.”
    Unfortunately, per court rulings one MUST open their big mouth and loudly, clearly, and unequivocally INVOKE their right to remain silent!
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    Quote Originally Posted by wrearick View Post
    a companion rule is Ask often if you are free to go and if you are ----> GO!
    +1

    I can't shed too many tears over a cold blooded murderer being caught and convicted. But I recognize that if the same methods are used against an innocent man he may well end up wrongly convicted.

    In the case linked to, the guy was never arrested, was offered a ride back to his neighborhood, but was stalled and effectively kept in custody.

    Walk out the door if you are allowed to. If they don't want to see you walk out, they get to arrest, and then they have to quit asking questions once you invoke your rights and ask for an attorney.

    But if they don't arrest, walk out and keep walking. Call a friend for a ride. Get a taxi. But don't hang around. And don't talk.

    What a shame that decent, law-abiding persons have to take these measures to protect ourselves from wrongful charges and conviction.

    Charles
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

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    Quote Originally Posted by utbagpiper View Post
    +1

    I can't shed too many tears over a cold blooded murderer being caught and convicted. <snip>

    Charles
    I can....if wrongly convicted via unlawful means.

    If it takes 1000 murderers to get cut loose by judges then maybe, just maybe, law enforcement will stop violating everyone's rights.

    Respect for our rights should overtake the desire to see guilty people being punished.

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    Quote Originally Posted by Nightmare View Post
    Jon Babineau, a veteran defense attorney, went a step further. He said no good can come from a person talking to police if there is any chance he or she could be a suspect.

    “Unless you are seeking immediate help, don’t say a word,” he said. “You don’t know what could be twisted back on you.”
    Unfortunately, the courts have ruled that keeping quite is not good enough to show you invoking your 5th amendment right to remain silent ~ you must explicitly say so.

    Yeah, its retarded ... but it is the gov't.

    I say get to the part of jurisprudence like the Jews do where anything you say cannot be used against you at all.

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    Wowwie!!!!

    Quote Originally Posted by davidmcbeth View Post
    I can....if wrongly convicted via unlawful means.

    If it takes 1000 murderers to get cut loose by judges then maybe, just maybe, law enforcement will stop violating everyone's rights.

    Respect for our rights should overtake the desire to see guilty people being punished.
    Please let me be the first member to welcome you back to the fold.
    I have missed your prolific posting style and random spurts of wisdom.
    I wonder in anticipation of your first 24 hour record post count.
    I think at this accelerated pace, If you have enough coffee ready
    you can make a new record that will make us all swell with pride and unrestrained Joy!
    My prediction is that you have the tenacity and drive to achieve the astounding number
    of 480 posts within the next 24 hours!
    Its true, I am your biggest fan, I already swell with my pride for your posting charisma,
    but I hope that the others of your fans wont think that I am exerting undue influence
    in order to be the more rightest guesser of your proclivity during this most trying time...

    Go Gettem David!!!!
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    Regular Member WalkingWolf's Avatar
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    This case will probably be overturned, there is little doubt IMO that he was in custody. Because he did not try to leave, they lied to him, if he had tried to leave I am sure they would have stopped him. I agree if a thousand murderers are let off because of rights violations we are safer than having gestapo police. The only solution I can see to this is a constitutional amendment demanding that all constitutional amendments be honored as they are written. Of course the courts would probably twist that to mean something else.
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    Quote Originally Posted by WalkingWolf View Post
    ... I agree if a thousand murderers are let off because of rights violations we are safer than having gestapo police. The only solution I can see to this is a constitutional amendment demanding that all constitutional amendments be honored as they are written. Of course the courts would probably twist that to mean something else.
    The old adage is "Better for 10 guilty men to go free than for one innocent man to be wrongly punished." Pushing for 1000 might result in complete lack of catching any criminals at all.

    Now, just thinking out loud here, I can find nothing in the constitution that actually requires the state to toss evidence obtained in violation of constitutional rights. I wonder if we might not be better off if we admitted such evidence and then imposed appropriately harsh penalties on whomever was responsible for the violation of rights.

    Double win: criminal off the streets and bad cop off the streets. Maybe crooked cop and criminal could share a cell for a while.

    Of course, about as much chance of cops actually getting punished for that as there is of the courts actually using the plain language and original intent as they apply the constitution.

    Charles
    Last edited by utbagpiper; 04-30-2016 at 01:27 AM.
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

    "With Anarchy as an aim and as a means, Communism becomes possible."
    --Marxist.org

    "Communism and Anarchy [are], a necessary complement to one another. "
    --PETER KROPOTKIN, "Anarchism: its philosophy and ideal." 1898.

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    Adage demeans Blackstone's Principle that is much older than Blackstone that brought it to modern jurisprudence. James Franklin notes its first use in The Science of Conjecture. It may be more fundamental than the presumption of innocence, a presumption being an assertion taken as true barring weighty evidence to the contrary.

    (No, you needn't reply or contradict, I will not read it in order to avoid your argumentativeness. Merely accept your schooling.)
    Last edited by Nightmare; 04-30-2016 at 06:19 AM.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by utbagpiper View Post
    The old adage is "Better for 10 guilty men to go free than for one innocent man to be wrongly punished." Pushing for 1000 might result in complete lack of catching any criminals at all.

    Now, just thinking out loud here, I can find nothing in the constitution that actually requires the state to toss evidence obtained in violation of constitutional rights. I wonder if we might not be better off if we admitted such evidence and then imposed appropriately harsh penalties on whomever was responsible for the violation of rights.

    Double win: criminal off the streets and bad cop off the streets. Maybe crooked cop and criminal could share a cell for a while.

    Of course, about as much chance of cops actually getting punished for that as there is of the courts actually using the plain language and original intent as they apply the constitution.

    Charles
    mate, the reason you can not find it in the constitution is because you looked in the wrong book(s)...
    1. might check your First Book of Moses Called Genesis Chapter 18 verse 23 through 26.
    2. might check your Second Book of Moses Called Exodus. Chapter 23 verse 7.

    just saying...

    ipse
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    Quote Originally Posted by wrearick View Post
    Most on here know this but a good reminder of why you should KYBMS (Keep your big mouth shut) when dealing with Law Enforcement.

    http://pilotonline.com/news/local/cr...3c0e6b9b3.html

    a companion rule is Ask often if you are free to go and if you are ----> GO!
    Don't ask If you are free to go determine that you are free to go. Ask if you are under arrest being detained and under arrest are the same thing. There is a sharp learning curve with leo encounters.

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    Regular Member solus's Avatar
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    Quote Originally Posted by All American Nightmare View Post
    Don't ask If you are free to go determine that you are free to go. Ask if you are under arrest being detained and under arrest are the same thing. There is a sharp learning curve with leo encounters.
    lol, and it is an immediately learning curve if you fail to mentally prepare.

    good point!!

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

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    Regular Member wrearick's Avatar
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    Quote Originally Posted by Nightmare View Post
    Adage demeans Blackstone's Principle that is much older than Blackstone that brought it to modern jurisprudence. James Franklin notes its first use in The Science of Conjecture. It may be more fundamental than the presumption of innocence, a presumption being an assertion taken as true barring weighty evidence to the contrary.

    (No, you needn't reply or contradict, I will not read it in order to avoid your argumentativeness. Merely accept your schooling.)
    Nightmare has spoken....end of discussion.....

    I missed your big self-promotion ceremony. And Now as the OP of this thread please stay on topic and don't hijack my thread to suit your ongoing feud.

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    Regular Member wrearick's Avatar
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    Quote Originally Posted by All American Nightmare View Post
    Don't ask If you are free to go determine that you are free to go. Ask if you are under arrest being detained and under arrest are the same thing. There is a sharp learning curve with leo encounters.
    Not sure I follow .... I believe you can be detained (not free to go) without being under arrest for a brief period of time while a LEO investigates/conducts fact finding an possible crime. However since I am not a lawyer I am not sure. Can you point me to where it is legally stated/case record/codified etc. that being detained and under arrest are the same thing?

    I do want to be prepared in case of an encounter and seek to make the learning curve as painless for me as possible. I have no problem changing my prepared question to "am I under arrest" but want to be sure if the answer I get is "No, you are not under arrest" that I am legally free to walk away without another word or comment to the officer.
    Last edited by wrearick; 04-30-2016 at 11:18 AM.

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    Regular Member solus's Avatar
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    Quote Originally Posted by wrearick View Post
    snipp..

    ... my thread...
    dually noted...

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Regular Member wrearick's Avatar
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    Quote Originally Posted by solus View Post
    dually noted...

    ipse
    Okay, maybe I should have said "the thread I started" but way too often on this site people take any opening they can to continue ongoing fights and throw insults against others. Since I started the thread and my name is the first someone sees when reading the thread for the first time I prefer not to have my name dragged into the mud pit. I guess I can avoid that by not posting at all but don't believe that serves the purpose this forum was created for in the first place.

    ...and just like that, in the blink of a curser we are back off topic.
    Last edited by wrearick; 04-30-2016 at 11:44 AM.

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    Quote Originally Posted by wrearick View Post
    Okay, maybe I should have said "the thread I started"....

    ...and just like that, in the blink of a curser we are back off topic.
    Well either you remain silent - and watch the thread trench your ditch - or violate the Original premise and speak up eh..[emoji90]
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  19. #19
    Regular Member solus's Avatar
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    Quote Originally Posted by wrearick View Post
    Most on here know this but a good reminder of why you should KYBMS (Keep your big mouth shut) when dealing with Law Enforcement.
    http://pilotonline.com/news/local/cr...3c0e6b9b3.html
    a companion rule is Ask often if you are free to go and if you are ----> GO!
    Quote Originally Posted by wrearick View Post
    Okay, maybe I should have said "the thread I started" but way too often on this site people take any opening they can to continue ongoing fights and throw insults against others. Since I started the thread and my name is the first someone sees when reading the thread for the first time I prefer not to have my name dragged into the mud pit. I guess I can avoid that by not posting at all but don't believe that serves the purpose this forum was created for in the first place. ...and just like that, in the blink of a curser we are back off topic.
    ok, wrearick, i posted YOUR initial post concerning YOUR reminder citizens shouldn't speak to the police and the biased article you provided about a court case where stupid criminal was sucked in by the verbal jujitsu the nice LEs used on him, then your STATEMENT about your companion rule about asking...

    if you review your post, you will see there was no discussion point mentioned, there was no question YOU asked towards members, in fact you only posted an opened ended statement, nothing more, nothing less!!

    now, if you wish to accept misinformation regarding the subject matter YOU put out here by a member which was succinctly corrected by another member and wish to consider this an ongoing fight that of course is your prerogative but to chastise the messenger who provided you background to show you appropriate material to support your decision making is something i do not understand.

    bottom line, to which i think you will agree, there was no subject matter topic for YOUR thread to wander off track from!!

    from another perspective...the information being presented, for the most part provides background to substantiate the rationale to keep your big mouth shut during encounters w/the nice LEs.

    ipse

    btw, i guess i missed the insult towards a member you purported occurred.
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

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    Quote Originally Posted by wrearick View Post
    Not sure I follow .... I believe you can be detained (not free to go) without being under arrest for a brief period of time while a LEO investigates/conducts fact finding an possible crime. However since I am not a lawyer I am not sure. Can you point me to where it is legally stated/case record/codified etc. that being detained and under arrest are the same thing?

    I do want to be prepared in case of an encounter and seek to make the learning curve as painless for me as possible. I have no problem changing my prepared question to "am I under arrest" but want to be sure if the answer I get is "No, you are not under arrest" that I am legally free to walk away without another word or comment to the officer.
    The 4th amendment is not about "arrests" but "seizures" .... skip the "arrest" analysis all together for the most part. The ? is: was the seizure lawful.

    For the most part, one does not know if he is under arrest until afterwards.

    Can you walk away after a cop says "no, you are not under arrest"? Sometimes. Sometimes not.

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    Quote Originally Posted by wrearick View Post
    Most on here know this but a good reminder of why you should KYBMS (Keep your big mouth shut) when dealing with Law Enforcement.

    http://pilotonline.com/news/local/cr...3c0e6b9b3.html
    a companion rule is Ask often if you are free to go and if you are ----> GO!
    I would take it one step further. I base this on an understanding--which I will explain--of case law (court opinions).

    Instead of asking whether you are free to go, openly declare that you do not consent to the encounter (with police). "Officer, no offense, I know you are just doing your job. But, I do not consent to an encounter with you."

    Using a tennis metaphor, you just smacked the ball back across the net. And, he has to play it correctly. Why? Because it forces the cop to have enough information to reasonably hold you while he investigates further (detain you), or release you, or open himself to lawsuit. That is to say, the instant you expressly declare it is a non-consensual encounter, then the cop must have the legal minimum threshold of suspicion to hold you longer while he investigates further. If he doesn't have information to justify that legal minimum threshold (called RAS--reasonable articulable suspicion) and holds you even one second longer, then he is open to lawsuit.

    This is a tiny little door the government accidentally left open for citizens. Government spent reams and reams of court opinions determining whether this encounter or that encounter with police was consensual. In doing so, government (courts) waved a giant flag saying, "Hey, if the person just refuses consent, then the only way the cops can force the encounter on the citizen is if the cops have genuine RAS. Or, stated backwards, if the citizen refuses consent, then cops gotta have RAS to force the encounter on the citizen."

    The short story is that any cop can contact any citizen consensually, and ask him questions. No minimum level of suspicion required. (Terry v Ohio)

    So, if the citizen declares he does not consent to the encounter, the only way the cop can legally force the encounter on the citizen is if the cop has the minimum level of facts to meet RAS.

    Thus, I suggest expressly declaring you do not consent to an encounter. It forces the cop to either leave you alone or have enough facts to meet reasonable articulable suspicion. Whether he has those facts or not is not my point. My point is that refusing consent to the encounter is one tiny bit of tactical initiative left open to you by the courts. If the cop does not have those facts and continues the encounter, he is open to lawsuit or formal written complaint.

    So, my compantion rule is to declare often (by implication) that it is not a consensual encounter. That is to say, if I say I don't consent to the encounter and the cop doesn't release me instantly, then I just assume I am being detained and start serving across the net:

    "Why am I being detained?"

    "When will I be released from this detention?"

    "The first words out of my mouth were that this is not a consensual encounter."

    Repeat in any order.

    With any luck the cop will screw up and tell you that you can leave after you answer his questions. (Violation of Title 42, the civil rights act, coercion to waive rights. You've invoked your right to remain silent. But, the cop is going to hold you until you waive the right to remain silent by answering his questions.)

    NOTE: Many states and localities* require you to identify yourself to a police officer if he has enough facts to meet reasonable suspicion. Since you can never know for sure whether he has that much facts--he can lie about the facts he has (google "permissibe deception"). Thus, I recommend being very, very careful about refusing to answer an identity question.


    *Just because a state law does not exist requiring you to identify yourself to a cop does not mean the local jurisdiction cannot have an ordinance requiring it--and penalizing refusal. I've seen some pretty stiff penalities in local ordinances for refusing to identify yourself to a cop--name and address. Up to a year in jail and a $2500 fine. So, while refusing to answer questions, keep in mind the US Supreme Court has already validated penalties for refusing to identify yourself. See Hiibel vs 6th Judicial District Court.
    Last edited by Citizen; 04-30-2016 at 05:29 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member solus's Avatar
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    a ping on citizen's posting...

    to preclude a you said/they said down the road during judicial events...please carry your recorder/camera with it on. (of course, please know, without a shadow of a doubt, the recording statutes of your community and state as that opens a whole other can of worms!!)

    ipse
    I'm only human; I do what I can; I'm just a man; I do what I can; Don't put the blame on me; Don't put your blame on me ~ Rag'n'Bone Man.

    Please do not get confused between my personality & my attitude. My personality is who I am ~ my attitude depends on who you are and how you act.

    Remember always, do not judge someone because they sin differently than you do!

    Get your facts first, and then you can distort them as much as you please. Mark Twain

  23. #23
    Regular Member TFred's Avatar
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    Quote Originally Posted by utbagpiper View Post
    The old adage is "Better for 10 guilty men to go free than for one innocent man to be wrongly punished."
    You know... the only reason this old adage IS an old adage is that we assume "the system" has a preference that guilty people are punished, and innocent people are not.

    I'm not so sure we can assume such feelings to be so sure as they once were.

    TFred

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    Regular Member wrearick's Avatar
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    Quote Originally Posted by Citizen View Post
    I would take it one step further. I base this on an understanding--which I will explain--of case law (court opinions).

    Instead of asking whether you are free to go, openly declare that you do not consent to the encounter (with police). "Officer, no offense, I know you are just doing your job. But, I do not consent to an encounter with you."

    Using a tennis metaphor, you just smacked the ball back across the net. And, he has to play it correctly. Why? Because it forces the cop to have enough information to reasonably hold you while he investigates further (detain you), or release you, or open himself to lawsuit. That is to say, the instant you expressly declare it is a non-consensual encounter, then the cop must have the legal minimum threshold of suspicion to hold you longer while he investigates further. If he doesn't have information to justify that legal minimum threshold (called RAS--reasonable articulable suspicion) and holds you even one second longer, then he is open to lawsuit.

    This is a tiny little door the government accidentally left open for citizens. Government spent reams and reams of court opinions determining whether this encounter or that encounter with police was consensual. In doing so, government (courts) waved a giant flag saying, "Hey, if the person just refuses consent, then the only way the cops can force the encounter on the citizen is if the cops have genuine RAS. Or, stated backwards, if the citizen refuses consent, then cops gotta have RAS to force the encounter on the citizen."

    The short story is that any cop can contact any citizen consensually, and ask him questions. No minimum level of suspicion required. (Terry v Ohio)

    So, if the citizen declares he does not consent to the encounter, the only way the cop can legally force the encounter on the citizen is if the cop has the minimum level of facts to meet RAS.

    Thus, I suggest expressly declaring you do not consent to an encounter. It forces the cop to either leave you alone or have enough facts to meet reasonable articulable suspicion. Whether he has those facts or not is not my point. My point is that refusing consent to the encounter is one tiny bit of tactical initiative left open to you by the courts. If the cop does not have those facts and continues the encounter, he is open to lawsuit or formal written complaint.

    So, my compantion rule is to declare often (by implication) that it is not a consensual encounter. That is to say, if I say I don't consent to the encounter and the cop doesn't release me instantly, then I just assume I am being detained and start serving across the net:

    "Why am I being detained?"

    "When will I be released from this detention?"

    "The first words out of my mouth were that this is not a consensual encounter."

    Repeat in any order.

    With any luck the cop will screw up and tell you that you can leave after you answer his questions. (Violation of Title 42, the civil rights act, coercion to waive rights. You've invoked your right to remain silent. But, the cop is going to hold you until you waive the right to remain silent by answering his questions.)

    NOTE: Many states and localities* require you to identify yourself to a police officer if he has enough facts to meet reasonable suspicion. Since you can never know for sure whether he has that much facts--he can lie about the facts he has (google "permissibe deception"). Thus, I recommend being very, very careful about refusing to answer an identity question.


    *Just because a state law does not exist requiring you to identify yourself to a cop does not mean the local jurisdiction cannot have an ordinance requiring it--and penalizing refusal. I've seen some pretty stiff penalities in local ordinances for refusing to identify yourself to a cop--name and address. Up to a year in jail and a $2500 fine. So, while refusing to answer questions, keep in mind the US Supreme Court has already validated penalties for refusing to identify yourself. See Hiibel vs 6th Judicial District Court.
    Thank you! Very informative and I will follow this advice should the need arise.

  25. #25
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    Quote Originally Posted by wrearick View Post
    Not sure I follow .... I believe you can be detained (not free to go) without being under arrest for a brief period of time while a LEO investigates/conducts fact finding an possible crime. However since I am not a lawyer I am not sure. Can you point me to where it is legally stated/case record/codified etc. that being detained and under arrest are the same thing?

    I do want to be prepared in case of an encounter and seek to make the learning curve as painless for me as possible. I have no problem changing my prepared question to "am I under arrest" but want to be sure if the answer I get is "No, you are not under arrest" that I am legally free to walk away without another word or comment to the officer.
    You are right you can force their hand. If they say you are being detained fine then your next response is Then I'm under arrest I have nothing further to say until I have legal counsel present. Most of the time they will lie or not answer the question. You have to make the choice just how far you are willing to push your luck you either stand your ground or bow down. There is no replacement for experience in this situation. There is a SCOTUS case that says cops can lie in the lawful performance of their duties.https://en.wikipedia.org/wiki/Frazier_v._Cupp There is a double standard If we lie then we get charged with https://vacode.org/18.2-460/ It is too many scenarios to go through. I do not come from a legal background but I have tons of real world practical experience in this matter. Bottom you really can't prepare for this. If it was me I do not consent to this encounter am I under arrest If no I walk and say nothing else. VA is a common law state and no stop and ID law exist. You are not required to show ID ever however you must at night state name and address (Common Law) Record any encounter you have It will save your Bacon.

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