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Right to remain silent, vs illegal to lie to an officer

paintsnow

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Jun 28, 2009
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I was thinking about this last night.

Say you are pulled over, or approached on the street for whatever reason and you are illegally concealing a firearm. (Im not saying its a good idea, i would advise against it, but go with it for this discussion) Now, traffic stop or anything else, officer asks you if there are any weapons present. Saying yes will get you into trouble for breaking the law, and you have the constitutional right to not incriminate yourself correct? Saying no would be lying to the officer, now your busted for illegal CC, and however many charges they can pin on you for lying.

Refusing to answer would lead to a search thought correct? I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways. Would that search be legal, and would any charges of illegal CC stick? If i remember correctly, anything found in that type of search cannot be used as evidence, and can only be removed from the person if it is a weapon, a crack pipe would not qualify.

What do you all think? Seems like a Catch 22 sorta thing
 

wrightme

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Fallon, Nevada, USA
I was thinking about this last night.

Say you are pulled over, or approached on the street for whatever reason and you are illegally concealing a firearm. (Im not saying its a good idea, i would advise against it, but go with it for this discussion) Now, traffic stop or anything else, officer asks you if there are any weapons present. Saying yes will get you into trouble for breaking the law, and you have the constitutional right to not incriminate yourself correct? Saying no would be lying to the officer, now your busted for illegal CC, and however many charges they can pin on you for lying.

Refusing to answer would lead to a search thought correct? I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways. Would that search be legal, and would any charges of illegal CC stick? If i remember correctly, anything found in that type of search cannot be used as evidence, and can only be removed from the person if it is a weapon, a crack pipe would not qualify.

What do you all think? Seems like a Catch 22 sorta thing

Start by reviewing Terry v Ohio. Here is the Wiki Article
 
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Nevada carrier

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A citizen asserting his right to remain silent can not in and of itself be used to justify a warrantless search nor can a search warrant be granted on those grounds alone. A police officer must be able to demonstrate reasonable suspicion and probable cause for a magistrate to issue a search warrant. A search warrant must clearly state what the police are searching for and the places they are authorized to search. They must also only search for what they are looking for in places they can possibly be. For example. If a police officer obtains a warrant to search your car for a firearm and opens a pill bottle and finds a dime bag of pot in your possession, that evidence will be suppressed because a pill bottle can not possibly contain a firearm. Look at it this way, if the police arrive at your house with a warrant to search for an elephant, they can't look inside a bread box.

A police officer cannot simply say, "I need a search warrant, this suspect refuses to answer when I asked him if he had a firearm in his car." He must have something other than a hunch to lead him to believe that there is a firearm in the car. Even then, in the state of Nevada, you can have a loaded firearm, with a round in the chamber anywhere in your car. Glove box, map pocket, center console or under the seat. It doesn't matter if it's "discernible by ordinary observation" or not, so long as it is not concealed on your person. So what if he finds a firearm or not, you haven't broken any law unless you are not legally eligible to own and posses a firearm in the first place.

Now as for "on your person," this is where it gets a little more vague. A police officer is permitted to do a "Pat down," however at this point you have been taken into custody (where a reasonable person would not believe they were free to leave) and anything recovered as evidence from this "pat down" would be suppressed if your attorney can demonstrate in court that the officer had no reasonable articulable suspicion that you had, were or would commit a crime. Always ask first and foremost, "am I free to leave?" If the officer responds with anything other than yes, you are now in custody and reasonable suspicion/probable cause applies to every action the police officer takes.

Remember, reasonable suspicion and probable cause can not and should not be argued at the scene. This is for your attorney to do on your behalf in the court of law. Arguing with a police officer could get you charged with resisting or obstruction at best; at worst you could be thrown to the ground, tazed, or shot. Asserting your fifth amendment rights means you do just that, remain silent except to ask if you are free to leave or state that you are going to remain silent and wish to summon your attorney.
 
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greengum

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Henderson, Nevada, USA
A citizen asserting his right to remain silent can not in and of itself be used to justify a warrantless search nor can a search warrant be granted on those grounds alone. A police officer must be able to demonstrate reasonable suspicion and probable cause for a magistrate to issue a search warrant. A search warrant must clearly state what the police are searching for and the places they are authorized to search. They must also only search for what they are looking for in places they can possibly be. For example. If a police officer obtains a warrant to search your car for a firearm and opens a pill bottle and finds a dime bag of pot in your possession, that evidence will be suppressed because a pill bottle can not possibly contain a firearm. Look at it this way, if the police arrive at your house with a warrant to search for an elephant, they can't look inside a bread box.

A police officer cannot simply say, "I need a search warrant, this suspect refuses to answer when I asked him if he had a firearm in his car." He must have something other than a hunch to lead him to believe that there is a firearm in the car. Even then, in the state of Nevada, you can have a loaded firearm, with a round in the chamber anywhere in your car. Glove box, map pocket, center console or under the seat. It doesn't matter if it's "discernible by ordinary observation" or not, so long as it is not concealed on your person. So what if he finds a firearm or not, you haven't broken any law unless you are not legally eligible to own and posses a firearm in the first place.

Now as for "on your person," this is where it gets a little more vague. A police officer is permitted to do a "Pat down," however at this point you have been taken into custody (where a reasonable person would not believe they were free to leave) and anything recovered as evidence from this "pat down" would be suppressed if your attorney can demonstrate in court that the officer had no reasonable articulable suspicion that you had, were or would commit a crime. Always ask first and foremost, "am I free to leave?" If the officer responds with anything other than yes, you are now in custody and reasonable suspicion/probable cause applies to every action the police officer takes.

Remember, reasonable suspicion and probable cause can not and should not be argued at the scene. This is for your attorney to do on your behalf in the court of law. Arguing with a police officer could get you charged with resisting or obstruction at best; at worst you could be thrown to the ground, tazed, or shot. Asserting your fifth amendment rights means you do just that, remain silent except to ask if you are free to leave or state that you are going to remain silent and wish to summon your attorney.

As lawyers in the past have said, the top 3 things you should do when you encounter the police and you are under suspicion of anything is 1) be quite 2) shut your mouth 3) shut the f(*k up.

I understand it isn't as fun and you don't get to rattle off NRS numbers or quote supreme court rulings. It is like having sex with a freaky chick and not having a "safe" word. Best not risk it :p
 

timf343

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Refusing to answer would lead to a search thought correct? I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways. Would that search be legal, and would any charges of illegal CC stick? If i remember correctly, anything found in that type of search cannot be used as evidence, and can only be removed from the person if it is a weapon, a crack pipe would not qualify.

Regarding the original post, I have a couple opinions.

First, you should always keep your conversations about legal topics. It is a crime to conspire to commit a crime, and some of the information in this thread might be mistaken or otherwise construed to be just that - how to get away with the crime of illegally concealing a weapon.

But one needn't be "illegally" concealing a firearm for this same discussion to have merit. One might be in possession of a concealed firearm and simply not want to deal with the hassle of some rookie cop on a power trip. One of our members, who I won't call out unless he chooses to participate in this thread, is consistently harassed by law enforcement while driving due to circumstances beyond his control. Every time, he tells the cop he's armed, and usually upon telling them of his concealed weapon, he is removed from his vehicle and handcuffed.

Who needs that? I will never tell a cop I'm armed if I'm CC. In fact, I'll probably tell him nothing other than what I'm legally obliged to tell him, which is my name in certain circumstances, and that's it.

So how do you get around this Catch 22? You're right, if the cop says "I see you have a CCW, are you carrying now?" and you respond with "I'm not going to answer any questions.", it probably means he's going to want to pat you down. But that doesn't mean he's allowed to!!

One of the common misunderstandings about Terry law is that an officer cannot pat you down to check for weapons just because he believes you're armed. He must have reasonable and articulable suspicion that you are not only armed, but also dangerous! See the US Supreme Court decision in Florida v JL. A partial snippet is below (emphasis added):

An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous.


...you see, it's a two-fold test. A person must be more than armed, he must be presently dangerous.

You may find this brief article interesting:

http://policechiefmagazine.org/maga...n=display_arch&article_id=757&issue_id=122005

A snippet (emphasis added):

If the person denies having a firearm or refuses to answer, and the officer does not otherwise have (legally sufficient) reasonable suspicion of criminal activity, the officer must allow the person to continue on his or her way.

If the person denies having a firearm or refuses to answer, but the officer has a reasonable suspicion that the person is armed and presents a danger to the officer or public, the officer may conduct a stop and frisk the person. If the officer finds a weapon, the officer may hold it while conducting the field inquiry. As long as the person is properly licensed, and no arrest takes place, the officer must return the gun at the conclusion of the interview


This "officer safety" card is played way too often. I agree, police officers should be safe, but they have nothing to fear from me or other lawfully armed citizens, whether they know it or not. They have inherently dangerous jobs, and though I pose no threat, I refuse to give up any of my rights to give them the perception of being safer.

Tim
 

Yard Sale

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Any evidence found in an illegal search is inadmissible in court. So don't consent to a search and don't do anything that would give them probable cause to search. (A recent case upheld on appeal: multiple air fresheners in a car and "suspicious" behavior by a passenger gave the officer PC to search for marijuana.)

Remaining silent makes them suspicious but doesn't give them reasonable suspicion or probable cause (legal grounds). I have been falsely arrested for remaining silent (prior to the SCOTUS decision requiring a detainee to assert his right to remain silent by speaking out). The weird thing was they didn't execute an illegal search, not even a Terry pat. They were willing to make an illegal seizure but not an illegal search.

I carried concealed almost daily for five years in California and had a few encounters with LEOs while carrying. In those and many other detainments before them, they never asked if I was armed. If you want/need to carry where it is prohibited, consider presenting a certain image to LEOs and the world at large.
 

timf343

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Remaining silent makes them suspicious but doesn't give them reasonable suspicion or probable cause (legal grounds). I have been falsely arrested for remaining silent (prior to the SCOTUS decision requiring a detainee to assert his right to remain silent by speaking out). The weird thing was they didn't execute an illegal search, not even a Terry pat. They were willing to make an illegal seizure but not an illegal search.

You have the right to remain silent and say NOTHING. You do not have to verbally assert your right to remain silent if you actually intend to keep your mouth shut. The SCOTUS decision says that unless you verbalize your assertion of that right, however, should you remain silent for several hours and then later begin to speak, your previous silence was not your assertion of your right.
 

timf343

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Now, Step 1 is say "I am choosing to exercise my right to remain silent."

THEN shut your mouth and keep it shut.

This is redundant. If you follow step 2, there's no need to follow step 1. If you don't think you can follow step 2, then you must do step 1 to protect your rights.

The SCOTUS decision doesn't mandate anyone say ANYTHING!! It merely states that if you choose to remain silent, merely remaining silent doesn't explicitly assert that right, meaning police can still question you, even though you remain stone faced. If after 2 hours of continuous questioning, you finally relent and start answering questions, those first two hours of silence were not any indicator of your intention to remain silent.

The decision expands on this by explaining that unless explicitly asserting his right to remain silent, it may well have been the intention of the detainee to formulate a story before starting to speak, and since police aren't mind readers, how would they know?
 

DVC

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This is redundant. If you follow step 2, there's no need to follow step 1. If you don't think you can follow step 2, then you must do step 1 to protect your rights.

If you don't follow Step 1, they can keep asking you questions and trying to get a rise out of you.

If you tell them you are invoking your right to remain silent, but they keep asking, anything you say can be thrown out of court, completely trashing any kind of case they might come up with against you, so it's in their best interests to stop asking you questions. If they aren't asking, you're not likely to give them any answers.
 

Nevada carrier

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a lot can be learned about their case against you based on the questions they ask. Assume that they know the answer to the question then think about the question and you shall find out the evidence they have. Use this to formulate a defense in court. Watch them fall on their face. Police are like trained apes; so predictable.
 

DVC

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a lot can be learned about their case against you based on the questions they ask. Assume that they know the answer to the question then think about the question and you shall find out the evidence they have. Use this to formulate a defense in court.

You can do that WITHOUT having to be hounded by questions.

Once the case is set for trial, your attorney can (and should) find out what the evidence is under "discovery."

There is no advantage to you in letting them ask questions. There is a very real risk that you will rise to the bait, and once someone gets pried open, they tend to stay open. "Good Cop, Bad Cop" isn't as good as NO cop asking questions.
 

Gundude

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"I want a lawyer" ends the questioning if you are arrested. That is the first thing you should say.
If you are detained, "I don't want to answer any questions without legal advice." Then shut your pie hole.
 

calmp9

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I was thinking about this last night.

Say you are pulled over, or approached on the street for whatever reason and you are illegally concealing a firearm. (Im not saying its a good idea, i would advise against it, but go with it for this discussion) Now, traffic stop or anything else, officer asks you if there are any weapons present. Saying yes will get you into trouble for breaking the law, and you have the constitutional right to not incriminate yourself correct? Saying no would be lying to the officer, now your busted for illegal CC, and however many charges they can pin on you for lying.

Refusing to answer would lead to a search thought correct? I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways. Would that search be legal, and would any charges of illegal CC stick? If i remember correctly, anything found in that type of search cannot be used as evidence, and can only be removed from the person if it is a weapon, a crack pipe would not qualify.

What do you all think? Seems like a Catch 22 sorta thing

I'm thinking that if you're bringing this up, you're planning on doing it. If you advise against illegally concealing a firearm, why worry about what happens if you're pulled over?
 

paintsnow

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I have seen numerous posts on here about people going about concealing where it is illegal, or they dont have permits, such as California, or post offices, in some states, stores that have signs making it illegal to bring a handgun inside (some states have laws so those signs actually mean something, I know in Nevada they are about as enforceable as "No yellow underwear" signs unless asked to leave, and then its only trespassing.)

I was just pondering and the thought came up. Cant lie, but they can search you for their safety. Then those people would be busted, and possibly hit with a felony. Buy if the refuse a search, it seems that the charges wouldn't stick.
 

wrightme

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I have seen numerous posts on here about people going about concealing where it is illegal, or they dont have permits, such as California, or post offices, in some states, stores that have signs making it illegal to bring a handgun inside (some states have laws so those signs actually mean something, I know in Nevada they are about as enforceable as "No yellow underwear" signs unless asked to leave, and then its only trespassing.)

I was just pondering and the thought came up. Cant lie, but they can search you for their safety. Then those people would be busted, and possibly hit with a felony. Buy if the refuse a search, it seems that the charges wouldn't stick.
There are limits to such a search. And from what I recall from other posts in this thread and others, it does not apply to a contact where the LE does not believe you are armed AND dangerous to them.

Specifically, Post #5 presents it quite clearly.
 
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codename_47

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Say you are pulled over, or approached on the street for whatever reason and you are illegally concealing a firearm.

(Im not saying its a good idea, i would advise against it, but go with it for this discussion) Now, traffic stop or anything else, officer asks you if there are any weapons present.
If the officer is extending the duration of the stop, (ie asking questions before or after a computer check is being done) then it is an illegal detention and illegal stop. Any evidence gathered is inadmissible.

Saying yes will get you into trouble for breaking the law, and you have the constitutional right to not incriminate yourself correct?
Self incriminate or not, you have no obligation to speak to anyone you don't want to, cop or no cop. Second, yes if it may incriminate you, then you can always and forever remain silent.

Saying no would be lying to the officer, now your busted for illegal CC, and however many charges they can pin on you for lying.
Non-sequitor. How is lying to the officer equate to getting busted for illegal CC? Saying no doesn't mean you consent to a search and they suddenly know you have an illegal gun.

Refusing to answer would lead to a search thought correct?
Umm, no. You don't have to talk to anyone, ever. Remaining silent is not incriminating or indicative of anything. You could be mute. You could have a broken jaw. You could have burned your tongue drinking hot coffee. Not talking isn't RAS or PC of anything.

I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways.
Illegal search. Now you sue them and any evidence of any crimes get tossed. Bad cop.


Would that search be legal, and would any charges of illegal CC stick?

Probably not, but I wouldn't want to find out.

What do you all think? Seems like a Catch 22 sorta thing
There's no catch 22. Just remain silent.
 

Gunslinger

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Terry only applies to RAS that a crime was or is about to be committed. Nothing else. "I choose not to answer your question" is all you need to say. You have no legal requirement to answer any question from a cop. None. In a traffic stop, if he asks for you license/reg/insurance proof, give it to him. No need for speaking except to answer a question specific to the reason for the stop and material to information you are required to provide, i.e., "is this your current address?"
 
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Citizen

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Not contradicting anybody; just adding to the discussion generally.

You have to take into account how things will play out on the ground. The "law" is one thing. How it may or may not be applied to your situation by the cop in front of you or the judge later is something else.

Courts are finding all kinds of wiggle-room holes through which to squeeze some of the damnedest pro-government decisions. Take this into account when planning your tactics. For example, (I'm just making this up) answering some questions, but then suddenly refusing to answer whether there is a gun is something I'll bet a number of courts would allow as reasonable suspicion of a gun--not RAS of the crime of carrying a gun illegally, but reasonable suspicion of a gun for officer safety. Just let the cop tell the judge that he also saw you move your hand, or that your eyes shifted toward the floorboard, or whatever he wants to make up to give it that little additional factor, and I'll bet that in a number of courts a gun search for officer safety is suddenly found "reasonable."

It seems as if in some courts, if the judges can find wiggle-room in the law, they will give it to the police. Especially on officer safety issues.

Also, realize that if a cop even gets the barest inkling of an idea there may be a gun and he is the tiniest bit concerned about his safety, there is a good chance you or your car are going to get searched. The cop isn't going to spend any time thinking about case law once he genuinely suspects--correctly or incorrectly--that there might be a gun. Case law and your rights be damned. We have heard as much from cops on this forum. I am not trying to discuss whether it is proper or legal. I am pointing out the cop's mindset. To hell with the law--get out of the car, now! Keep your hands where I can see them!

You can keep tabs a little bit on what the courts are letting police get away with in regards to the 4th Amendment with this handy little blog by an attorney: www.fourthamendment.com
 
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