"If you want to claim the Fifth . . ."
June 18, 2013 6:49 AM   Subscribe

In a 5-4 ruling on Salinas vs. Texas, the SCOTUS ruled that silence can be used in court. (PDF) Without being placed in custody or receiving Miranda warnings, Genovevo Salinas voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. During his trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals andCourt of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment. Analysis on SCOTUSblog
posted by dukes909 (138 comments total) 17 users marked this as a favorite
 
Wow, that is a hundred and one different kinds of fucked up. In order to remain silent you have to speak.
posted by notsnot at 6:53 AM on June 18, 2013 [2 favorites]


.
posted by mazola at 6:55 AM on June 18, 2013 [10 favorites]


See also Orin Kerr's analysis at the Volokh Conspiracy.
posted by notbuddha at 6:59 AM on June 18, 2013 [4 favorites]


In order to remain silent you have to speak.

That doesn't strike me as strange--nor do I think that it's inherently troubling to require a suspect to affirmatively invoke the 5th Amendment instead of simple sitting mute. But to require a suspect to invoke the 5th in a non custodial setting where the person is not entitled to a Miranda warning is definitely crazy. Under that rationale, it would seem a police officer could come up to you on the street, ask "Did you commit a crime today?" and, if you are simply silent, that could be used against you in court.

I hope the Miranda warning is updated to tell people they must affirmatively state they're taking the 5th to have its protections.

(I have not read the opinion.)
posted by Admiral Haddock at 6:59 AM on June 18, 2013 [5 favorites]


I am invoking my first amendment right to free expression when I say WTF?

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY,
concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question.


I will also take this opportunity to state publicly in that I refuse my consent to have soldiers, in time of peace, quartered in my house. Just in case.

I also want to go on record claiming my fourth amendment right to due process.

I hope I have been solubly unambiguous on these matters.
posted by three blind mice at 7:02 AM on June 18, 2013 [35 favorites]


"Did you commit a crime today?" and, if you are simply silent, that could be used against you in court.

But even saying "I take the fifth" can be used against you.

I'm just impressed that a jury bought the whole "well, he looked guilty" thing.
posted by Pogo_Fuzzybutt at 7:05 AM on June 18, 2013 [1 favorite]


But even saying "I take the fifth" can be used against you.

No it can't.
posted by shivohum at 7:06 AM on June 18, 2013 [8 favorites]


How is it a right if you have to invoke it? That would seem to explicitly make it a privilege, yeah? And not inalienable, certainly.
posted by penduluum at 7:07 AM on June 18, 2013 [13 favorites]


> I hope I have been solubly unambiguous on these matters.

I think you have to live in the United States for this to be relevant to you.
posted by ardgedee at 7:08 AM on June 18, 2013 [3 favorites]


I also want to go on record claiming my fourth amendment right to due process.

You'll be wanting the Fifth and Fourteenth Amendments for that.

Anyway, we'll have to update the rules for (not) talking to cops. I guess it now goes something like this:

Ask "Am I free to go?" If yes, then say "I am expressly invoking my Fifth Amendment right to silence. My refusal to answer your questions may not be used against me." and then leave.

If no (i.e. you are under arrest), then say "I am expressly invoking my Sixth Amendment right to an attorney. Until my attorney is present, I am expressly invoking my Fifth Amendment right to silence and will not answer any questions."
posted by jedicus at 7:10 AM on June 18, 2013 [77 favorites]


I thought the wisdom was was "Don't talk to the police"?
But now it's "Don't not talk to the police"?

So apparently you must speak one specific mystical incantation at the right time and utter it in the exact phrasing in order to not have the cops be able to just make shit up about you based on their own agenda?
posted by seanmpuckett at 7:10 AM on June 18, 2013 [20 favorites]


But even saying "I take the fifth" can be used against you.

I think it can't (yet). But--consider someone who pauses and thinks before they take the Fifth. I think under the current landscape, taking the 5th can't be referenced, but maybe the pause before they invoke their rights? "They must be guilty, they paused!"
posted by Admiral Haddock at 7:11 AM on June 18, 2013 [2 favorites]


I will also take this opportunity to state publicly in that I refuse my consent to have soldiers, in time of peace, quartered in my house. Just in case.

I also want to go on record claiming my fourth amendment right to due process.

I hope I have been solubly unambiguous on these matters.


This was my first instinct when I read the headlines about this opinion. Having now read the opinion, I think that it is legally correct and particularly note Thomas's concurrence.

The prime issue in the plurality is that the silence right is an asserted privilege. In evidence law, we do not just get to not produce information and hope the opposing party knows why. Rather, the privilege has to be asserted with some particularity so the party seeking the information and the court can determine the applicability of the privilege. For example, I cannot tell a client at a deposition, "don't answer that" but rather "don't answer that because that is a protected attorney-client communication". You can stonewall, but you have to let the other side know that you have a legal reason to do so.

I do not have a criminal practice, so I would be interested to read the input of criminal defense lawyers regarding their general advice to clients regarding speaking with the police.
posted by Tanizaki at 7:13 AM on June 18, 2013 [7 favorites]


But even saying "I take the fifth" can be used against you.

No it can't.


My understanding was that your refusal to testify can't be used against you. However if you, say, tell the cops during questioning that you are taking the fifth, they can use that testimony from the cops.

But I am no lawyer, so.. I guess.
posted by Pogo_Fuzzybutt at 7:13 AM on June 18, 2013


This is crazy.

"But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply."

Isn't this kind of like making up the rules after the game? Even if the suspect was a lawyer who was up on all the latest rulings and such, did he ever have a chance of knowing this requirement in advance? And do they have any plan for informing the populace of the new rules?
posted by bleep at 7:15 AM on June 18, 2013 [4 favorites]


The trouble is is that he already started answering questions and suspiciously fell mum as evidence of his guilt was presented before him. For the 5th amendment to work, you have to invoke it from the get go.

Here's how I would've played it:

Cops: "Good morning, we'd like to ask you some questions regarding the death of Jane Doe"

Renoroc: "I'd like to speak to an attorney and I'm invoking my 5th amendment rights"

Cops: A lot of psychological techniques and quasi-torture tactics. This could take hours depending on how bad they think I did whatever it is

Renoroc: Sits silently. DOESN'T SAY A WORD [EXCEPT FOR CALLING HIS LAWYER] UNTIL HIS MOUTHPIECE GETS THERE

Lawyer: "What evidence do you have? Either arrest Mr. Renoroc or release him. Thanks"

Renoroc was later convicted, but that was due to planted evidence, not because he kept his mouth shut

[Law and Order BONG BONG]
posted by Renoroc at 7:15 AM on June 18, 2013 [33 favorites]


Anyway, we'll have to update the rules for (not) talking to cops. I guess it now goes something like this:

Forgot the 8th Amendment, smart guy! Let the beating commence! Punch kick stab bite bite bite tender gnawing uncomfortable poking inexplicable zerberting. The Aristocrats!
posted by Admiral Haddock at 7:15 AM on June 18, 2013 [2 favorites]


What if you literally cannot speak because you're mute? Can you hand over a card that states that you take the fifth?
posted by Foci for Analysis at 7:16 AM on June 18, 2013


This is so fucking baffling.

The Alito opinion said that there was no formal way an individual had to use to invoke his Fifth Amendment right, and concluded that it has not been hard for courts to figure out when that right has, in fact, been invoked.

Okay: so there's no specific language you have to use. And yet other decisions have held that if you KEEP talking after invoking the right, whatever you stay can still be used against you. So you have to say something, and then stop saying anything, but the first something you say has to be recognizable as affirming your right.

Alito's contention that it hasn't been hard for courts to determine whether the right has been invoked is contradicted by the very fact THAT HE IS WRITING AN OPINION AT ALL.
posted by penduluum at 7:16 AM on June 18, 2013 [5 favorites]


For the 5th amendment to work, you have to invoke it from the get go.

That's incorrect; some versions of the Miranda warning specifically say that if you chose to speak, you can chose to remain silent later on in questioning. The right to remain silent in invokable at any time.
posted by spaltavian at 7:19 AM on June 18, 2013 [3 favorites]


Wow, that is a hundred and one different kinds of fucked up. In order to remain silent you have to speak

This has been the Court's view since at least 2010, and Berguis v. Thompkins.
posted by snuffleupagus at 7:20 AM on June 18, 2013


If an individual is voluntarily talking to the police

This needs to be in 1000 point font with a blink tag. Never talk to the police or similar without a good reason and preferably a lawyer handy.
posted by Old'n'Busted at 7:21 AM on June 18, 2013 [15 favorites]


And do they have any plan for informing the populace of the new rules?

There are so many laws out there that no one can be expected to know even a fraction. This is why I decided some time ago I would live my life the way I felt was moral and good and screw those that don't agree with me. I also have the privileged of having the correct skin color and socioeconomic status to take this kind of position.

I figure the only way I am going to go afoul of the law is through ignorance on my part and stupidity on the law's part. I don't need a law that says it's illegal to beat a mule. it's not something I plan to do.
posted by cjorgensen at 7:27 AM on June 18, 2013


I would like to go on record as invoking my 18th Amendment right to not drink. I will will also go on record as planning to invoke my 21st Amendment right this evening at 5pm + commute time.
posted by enkd at 7:28 AM on June 18, 2013 [9 favorites]


"I'm sorry, Officer, I can't help you with that"
posted by thelonius at 7:29 AM on June 18, 2013


Kind of cute how people are talking about rights here like they haven't been essentially tossed out the window the last few decades. "Wiretaps? What are you afraid of, terrorist. No one listens to my boring talk, so you must have something to hide." Same goes for all the other rights, fuck em if it helps convict people, doesn't matter if they are actually guilty or not.
posted by usagizero at 7:30 AM on June 18, 2013 [3 favorites]


Why you should never talk to the police, even if you are innocent. (SLYT)

Good constitutional arguments from a lawyer about your rights, with added views from a retired police detective. 48 minutes, but worth it.
posted by dry white toast at 7:32 AM on June 18, 2013 [23 favorites]


Never talk to the police without a good reason...

And refuse to talk without a lawyer, both voluntarily meetings and especially if detained and Mirandized. INVOKE (yes, some rights must be invoked) your right to counsel immediately--and often, if you get the run around. The Supreme Court is more protective of that right (both the 5th am./Miranda right to counsel and the 6th am. right that attaches later) than the right to remain silent (although note that 6th am. right to counsel is "offense specific"--the cops can try to interrogate you on unrelated matters even if you're represented on a filed charge. 'Unrelated' being somewhat malleable).
posted by snuffleupagus at 7:33 AM on June 18, 2013 [2 favorites]


It seems to me that if you're voluntarily participating in an interview with the police about a murder and answering questions, and you clam up only when you realize that they've asked a question you don't want to answer, that silence (and the suspect's body language: "petitioner '[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up'") should be considered evidence. You shouldn't be able to wipe that away by asserting a 5th Amendment privilege after the fact (at trial!).
posted by BobbyVan at 7:43 AM on June 18, 2013 [1 favorite]


I'm sorry, I'm not allowed to shuffle my feet now?
posted by Flunkie at 7:45 AM on June 18, 2013 [4 favorites]


This needs to be in 1000 point font with a blink tag. Never talk to the police or similar without a good reason and preferably a lawyer handy.

One root cause of all of this is that many law enforcement departments boil performance down to metrics, so the guy with the most arrests/charges/convictions gets the promotions. And then guess what they care about when they are running the show. There is also enormous political pressure to find the bad guy every time a crime is committed once an officer is visible to local media. Throw that institution in a bowl with the loss of practically every protection we used to enjoy, and the natural consequence is that more innocent people will be thrown in prison.

Probable cause has been reduced to "I felt like they were suspicious" and if America ever lands in the hands of a totalitarian, they won't have to change many laws. They won't need the consent of the citizens either, if they have the consent of law enforcement. That's why we had the rights in the first place, until they were stripped from us and sent to the FBI and NSA with a bow on top.

(PS: Hello, assholes!)
posted by tripping daisy at 7:45 AM on June 18, 2013 [9 favorites]


But if you're using body language as evidence, wouldn't you be able to use that even AFTER the assertion of the Fifth Amendment right? Saying "I invoke my right" doesn't mean the police have to avert their gaze. And they can continue using anything against you that you continue to do, right?

So we're back to the fact that the case is affirming "he acted guilty" as evidence of guilt.
posted by penduluum at 7:47 AM on June 18, 2013


Probable cause has been reduced to "I felt like they were suspicious"
That's "reasonable suspicion," which is used to justify initial investigatory activity to develop probable cause. For whatever (cold) comfort that gives.
posted by snuffleupagus at 7:49 AM on June 18, 2013 [1 favorite]


So we're back to the fact that the case is affirming "he acted guilty" as evidence of guilt.

Are you suggesting that a jury should not hear about the suspicious behavior of a suspect, as part of a broader evidentiary and testimonial case? What if he broke down and cried?
posted by BobbyVan at 7:50 AM on June 18, 2013


I'd love to put police ability to determine what mode of feet shuffling actually guilty people engage in compared to innocent people to some sort of double blind study.
posted by Drinky Die at 7:54 AM on June 18, 2013 [5 favorites]


Are you suggesting that a jury should not hear about the suspicious behavior of a suspect, as part of a broader evidentiary and testimonial case? What if he broke down and cried?

Aside from the legalities of admitting that evidence, that's pretty fucking terrible evidence. Someone broke down and cried during a police interrogation? It doesn't prove a damn thing other than that interrogations are stressful and people react under stress. Confessions aren't even particularly reliable evidence, relying on things that sort of look like confessions, if go look at them in the right light, is farcical.
posted by Bulgaroktonos at 7:54 AM on June 18, 2013 [22 favorites]



While ( not $free_from custody ) {
say "Am I Under Arrest?";
if ( not $under_arrest ) { say "Can I go now? }
}

posted by mikelieman at 7:55 AM on June 18, 2013 [9 favorites]


It's already been pointed out upthread, but a key part of this decision is the fact that Salinas was not in custody when he was being questioned. It's still a bad and confused decision, but it's somewhat misleading to talk about Miranda warnings in this context. Miranda warnings are for those in police custody.
posted by Sticherbeast at 7:55 AM on June 18, 2013 [5 favorites]


Better hope you don't have anxiety issues if you get taken down to the station. Nervous behavior, too panicked to assert your 5th amendment right in a clear and concise way... sucks to be you, I guess.
posted by jason_steakums at 7:56 AM on June 18, 2013 [1 favorite]


Are you suggesting that a jury should not hear about the suspicious behavior of a suspect, as part of a broader evidentiary and testimonial case? What if he broke down and cried?

I'm not saying they shouldn't hear about it, I'm saying they would hear about it whether or not the suspect asserted his Fifth. I don't see how it intersects.

Except that, yes, the whole case hinged on whether the suspect's behavior was admissible. But from what I can tell, his physical behavior and body language would have been admissible, even if he stood up on a precinct desk and shouted the whole Bill of Rights. That's what's so baffling.
posted by penduluum at 7:56 AM on June 18, 2013 [1 favorite]


What if he broke down and cried?
Holy crap.
posted by Flunkie at 7:56 AM on June 18, 2013 [3 favorites]


So essentially until you are Mirandized you have to explicitly invoke your right to silence.

That will reduce the number of Miranda warnings given, I think.
posted by unSane at 7:56 AM on June 18, 2013 [1 favorite]


That will reduce the number of Miranda warnings given, I think.

Not at all. When under arrest, you're considered under duress, and without giving that warning, anything said to you could be found to be said under coercion. The warning will still be given.

Don't talk to the police. Ask if you're free to go.
posted by explosion at 8:00 AM on June 18, 2013 [2 favorites]


I wonder if it's possible for an attorney to write up a full accurate version of the pseudocode mikelieman posted. Is it still the same pseudocode after this decision, or has the methodology for not talking to the cops changed?

Seriously thought not talking to the cops is such an important life skill that it should be taught in schools. 7th grade civics class (or whatever) should have a whole unit on the cops, why it's important to never talk to them, and most especially how not to talk to them.
posted by You Can't Tip a Buick at 8:02 AM on June 18, 2013 [4 favorites]


Jeez, it's a court of law, not a D&D game.
posted by The Underpants Monster at 8:03 AM on June 18, 2013 [3 favorites]


It's already been pointed out upthread, but a key part of this decision is the fact that Salinas was not in custody when he was being questioned. It's still a bad and confused decision, but it's somewhat misleading to talk about Miranda warnings in this context. Miranda warnings are for those in police custody.

If we're going down this path of needing to explicitly invoke constitutional rights when you're not even in custody, I really feel there needs to be a brief reading of rights similar to Miranda given before any interaction with police whatsoever, be it a traffic stop or just asking a bike cop for directions.
posted by jason_steakums at 8:03 AM on June 18, 2013 [2 favorites]


What if he broke down and cried...

Holy crap...


It's tempting to want to look at one rule of evidence in a vacuum--but it bears consideration that other rules of evidence can operate to exclude unduly prejudicial evidence. So testimony about when someone cried during interrogation could be allowable under the 5th but still be excluded because its prejudicial effect on the jury would exceed its probative value, i.e. it would be difficult for the jury to use it only as evidence of the defendant's mental state vs. going beyond that and using it as some kind of implied confession (where doing so would be unjustified or impermissible). Which is why the temperament of the trial judge is important, with the leeway they have.

So essentially until you are Mirandized you have to explicitly invoke your right to silence...

The police are obligated to Mirandize you before attempting to interrogate you if you are in custody. If you are not in custody you don't have--and don't need--the Miranda rights, because you are having a voluntary encounter and can shut the door, walk away, get up and leave, etc.
posted by snuffleupagus at 8:06 AM on June 18, 2013


All of this "Do not talk to the police" talk also seems troubling given with the daily news in Chicago about all the murders there are here and the police begging people to give them some hints. Sometimes the police need the peoples' help, but how are we supposed to do that when you make it dangerous for us?
posted by bleep at 8:08 AM on June 18, 2013 [4 favorites]


Anonymous tips?
posted by snuffleupagus at 8:09 AM on June 18, 2013 [3 favorites]


It's pretty sad and shocking that the day-to-day outcome of the way laws are enforced and practiced in this country has become "Don't talk to cops, ever, for any reason, no matter how innocent."

Why do we have cops if we can't trust them to treat us with fairness and decency, if our every interaction must be carefully scripted with (we hope) the correct passwords? I say this as someone who has been glad to see the cops called (when a woman upstairs was being beaten) and talked to the cops afterwards about what I heard, and now I wonder if I should have been afraid to. How many more crimes will go unreported because no one wants to call the cops or risk talking to them?

I'm a boring white lady; my chances of random on-the-street harassment are low. Unless of course I join the wrong political group or go to the wrong rally or get on the wrong mailing list or just live next door to the wrong person.
posted by emjaybee at 8:10 AM on June 18, 2013 [22 favorites]


Or fall to a certain level of poverty. Homelessness, for instance.
posted by snuffleupagus at 8:12 AM on June 18, 2013 [7 favorites]


I'm still pissed that my neighbor stole my trashcan last week. How about an anonymous tip that he's a pedophile?

"He seemed really nervous when asked..."
posted by notyou at 8:12 AM on June 18, 2013 [2 favorites]


One thing MetaFilter has taught me is to dislike cops. I hope my contempt doesn't mar any interaction I ever have with them. They seem like such assholes.
posted by RussHy at 8:17 AM on June 18, 2013


Anyway, that Orin Kerr link above provides some valuable context. This decision looks like Roberts doing what what he set out to do: undo what the Warren court did.
posted by notyou at 8:17 AM on June 18, 2013 [2 favorites]


How about an anonymous tip that he's a pedophile?"

I'd argue against it, actually. Also against keying his car, or peeing on his lawn. But I'd encourage genuine witnesses to serious crimes to make anonymous reports if they aren't comfortable with talking to the police, and let law enforcement worry about what to investigate, regardless of what assholes do.

And yeah, we're losing the protections of the Warren court under Roberts, who is continuing (accelerating?) the direction of the Rhenquist court.
posted by snuffleupagus at 8:19 AM on June 18, 2013


Sometimes I think we have cops purely as an artifact of history, instead of for any "reason" based on the social utility of having cops. It's kind of a sad thing that even relatively privileged white boys like me know not to talk to them, but, well, sad or not, knowing how to not talk to the cops is still vital.

Perhaps there is a weird backwards kind of hope inherent in the fact that even the privileged know not to talk to the cops. When it was only the underprivileged who had to learn how not to talk to the cops, it was easier for the relatively wealthy and privileged to pretend that the cops are on "our" side.

If the bleakness of this topic starts to get to you, you can cheer yourself up by listening to this fun song by the Seattle-based novelty band Don't Talk to the Cops. It has absolutely nothing to do with cops or not talking to them. It's just fun.
posted by You Can't Tip a Buick at 8:28 AM on June 18, 2013


So if we're going to make it a rule that people only deal with the police anonymously, how will the police get witnesses to testify in court?
posted by BobbyVan at 8:29 AM on June 18, 2013


So if we're going to make it a rule that people only deal with the police anonymously, how will the police get witnesses to testify in court?

I think that's their problem to solve, not ours. For whatever it's worth, they've got a pretty good solution though: using psychological intimidation and exploiting peoples' baseline friendliness to get them to talk to the cops, even though talking to the cops is a terrible idea. Most of the people in this thread, even though we all know not to talk to the cops and why, probably would nevertheless talk to an actual cop actually questioning them.
posted by You Can't Tip a Buick at 8:32 AM on June 18, 2013 [3 favorites]


It's already been pointed out upthread, but a key part of this decision is the fact that Salinas was not in custody when he was being questioned.

Of course there we run up against the problem that the legal definition of "in custody" is so far out of whack with the cultural perception of what it means. Few folks, when "asked" to come to the police station to answer a few questions, react to being put in a bright and antiseptic room with an easy feeling that they can get up and walk out anytime.

When I was in sales, back when dinosaurs roamed the earth, there was plenty of advice about ways to handle interactions such that you put the uncomfortable onus of denial or rejection on the other person. It ranged in strategy from benign "let's get this done" sort of stuff into really borderline psy-ops give someone a choice between tears and buying. It's well known stuff but we're okay with letting fundamental freedoms be smacked around by the techniques, wielded by people who we wish were perceived as protectors and whom we invest a lot of authority and weaponry in.

The really unpleasant image this reminds me of is McCarthyism, when folks would be brought in front of a panel of shitheads and be forced to exclusively take the 5th across the board or be found in contempt for refusing to name names.

We are all 5th Amendment Communists now.

Never. Talk. To the cops.
posted by phearlez at 8:32 AM on June 18, 2013 [2 favorites]


So essentially until you are Mirandized you have to explicitly invoke your right to silence...

The police are obligated to Mirandize you before attempting to interrogate you if you are in custody. If you are not in custody you don't have--and don't need--the Miranda rights, because you are having a voluntary encounter and can shut the door, walk away, get up and leave, etc.


My worry is that not everyone knows that. It's the difference between consent and informed consent: you need to understand the situation you're in for your choices to be meaningful choices.

If, by muddying the waters about whether a suspect can leave or not, you get a different standard about what constitutes invoking the fifth amendment than if you're actually detaining them? That's a huge incentive for the police to make things as unclear as possible in order to get more information they can use. And that, in turn, creates a division between the legal definition of "in custody" and the practical definition as most people understand it. So: sure you can walk away. But you need to know you can. And you need to trust that no harm will befall you for doing so. If you're in a police station, and someone asking you a bunch of questions, at some point that starts to look a lot like an interrogation, in the plain-language sense.

That doesn't make this a wrong legal decision, necessarily; I'm not remotely qualified to judge that. I just think that it may have worrisome practical consequences.
posted by cjelli at 8:37 AM on June 18, 2013 [3 favorites]


If anyone has been on the fence about registering for metafilter and you're having trouble finding a profile name:

[Law and Order BONG BONG]
posted by Fizz at 8:38 AM on June 18, 2013 [14 favorites]


I was actually there in the courtroom yesterday at the Supreme Court when they announced this and a few other decisions. I was getting sworn in to be able to practice there. Sandra Day O'Connor was seated a few seats to my right. The person sitting next to me was a prosecutor and she let out a slightly audible (to me) "Yes!" when the decision was read.

It's a shame that this was a murder case. Serious cases often make for very bad law. If this were drug case with similar facts, I suspect that the court might have reached a different conclusion. Courts don't like to make rulings that might overturn a murder conviction and allow that someone previously convicted of murder might go free. They don't mind doing things that cause murderers to be re-sentenced, but they don't want to potentially let a convicted murderer go free. If the stakes were not as high and a pro-Defendant ruling here would have just resulted in a drug case being re-tried, then we might have seen a different result. Unfortunately, now all future cases are stuck with this ruling. Again, bad cases make for bad law.

It was nice to see Thomas split with the conservatives and deliver the majority opinion in the case that required that any elements used to enhance a Defendant's sentence must be found by a jury to have occurred beyond a reasonable doubt.

After it was all over, Ginsburg was going to come in and meet with us, but she apparently started to feel dizzy and decided not to do it.
posted by flarbuse at 8:38 AM on June 18, 2013 [18 favorites]


~But even saying "I take the fifth" can be used against you.
~I think it can't (yet).


I assure you that there are more than enough potential jurors out there who will interpret a defendant taking his 5th as proof that they are guilty. Ditto for taking his 6th and asking for a lawyer. Everyone who watches tv knows that anyone who asks for a lawyer and then clams up is guilty as hell. So say all the police shows!
posted by Thorzdad at 8:41 AM on June 18, 2013 [4 favorites]


[Law and Order BONG BONG]

I wonder how long it took to create that sound effect before it ended up in the show? I'm picturing a smoke- and despair-filled studio at two in the morning, chain-smoking engineers warily eyeing a morning deadline. One of them yells, "Needs more reverb!" and the others faces light up like they've seen God.
posted by Blazecock Pileon at 8:48 AM on June 18, 2013 [11 favorites]


Courts don't like to make rulings that might overturn a murder conviction and allow that someone previously convicted of murder might go free.

Yeah, but if you're on the Supreme Court, and know that your ruling is going to be the law, full stop, affecting absolutely everyone in the country in one way or another, isn't it your job to look beyond "I don't want this guy to go free"?
posted by emjaybee at 8:49 AM on June 18, 2013 [3 favorites]


What would help I think would be a requirement that any statement taken by police can not be used against the interviewee unless that person has been Mirandized before hand. Whether or not that person is in custody.

But one thing that does bother me about the current setup is there is an assumed requirement of ... knowledge/intelligence/assertion before people are even vaguely treated equally. So, some poor slob who dropped out of high school because he just couldn't cut it academically, or just doesn't know the rules or is too timid or has anxiety difficulties, starts so far behind everyone else in being able to assert their rights. It's idiotic.

I really really really don't think gun ownership should be a right on par with speech, but I can at least understand why gun ownership fanatics feel they have to assert their right. Because some of the more basic rights have suffered terribly over the last 30 years.
posted by edgeways at 8:50 AM on June 18, 2013 [2 favorites]


I could be completely pollyanna about this, but my read is that there were two "majority" opinions in the case, and the one with more authors controlled the outcome of the case, but the opinion of Thomas and Scalia "...would have answered the constitutional question that the Court had agreed to hear in this case, and declare that prosecutors could have used the suspect’s silence against him at the trial even if he had specifically claimed a Fifth Amendment right." So this did not happen, and what did happen was the opinion written by Alioto, which said "A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” means that, at least in an ideal world, the courts are required to consider what is going on when the witness starts being silent, and a witness can't just later default to the assertion that in fact they were silent because of the Fifth Amendment. On the spectrum of possible outcomes of this case, this is still not great in my opinion, but it's better than what could have happened. (Quotes are from the linked ScotusBlog.)
posted by gubenuj at 8:52 AM on June 18, 2013 [1 favorite]


Now the "Silence in Court" song from Gilbert & Sullivan's "Trial by Jury" is running through my head.
posted by Melismata at 8:54 AM on June 18, 2013 [1 favorite]


Anonymous tips are pretty worthless. If a judge even lets them in to court, defense attorneys can wreck them pretty easily, for the obvious reasons.

It was interesting reading the reactions to the officer's report of the defendant's silence. According to the training I'm getting, that's a great report: several specific, articulable facts and no conclusionary language. Just "here are the objective facts I observed." Certainly better than "he didn't answer and he looked guilty."

I'm not sure what commenters here want police to do? This man apparently came up as a suspect in an old murder. They asked him in for a voluntary interview and he said sure. They submitted the results of that interview as evidence. If there's a way to interview someone that's more respectful of their 4th amendment rights, I'm not sure what it is? Or is your beef solely with the fact that this particular piece of evidence wasn't excluded?
posted by kavasa at 8:56 AM on June 18, 2013 [2 favorites]


I can't wait for the mass indictments at Metafilter after the next obituary thread. Clearly all those "." posts are tacit admissions that we're guilty...of murder!!!
posted by kewb at 8:58 AM on June 18, 2013 [3 favorites]


My beef is with the fact that common knowledge is that you are protected from incriminating yourself. Now it turns out that you have to know the magic words and say them, in order to be protected. I don't think that's a fair thing for the courts to decide. The benefit of the doubt should go to the people.
posted by bleep at 9:01 AM on June 18, 2013 [1 favorite]


It seems to me that if you're voluntarily participating in an interview with the police about a murder and answering questions, and you clam up only when you realize that they've asked a question you don't want to answer, that silence (and the suspect's body language: "petitioner '[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up'") should be considered evidence. You shouldn't be able to wipe that away by asserting a 5th Amendment privilege after the fact (at trial!).

Bobby Van, you should read Orin Kerr's analysis linked above. He does a very good job of pointing out why this would be so easily open to abuse:
First, it is relatively easy for the government to claim that a suspect’s reaction to an incriminating question suggests guilt — and very hard for a defendant to challenge that characterization. Over the course of a long interview, the investigator might ask dozens or hundreds of incriminating questions. If the case goes to trial, a smart prosecutor will ask the investigator if he thought that any of the ways the defendant reacted to the questions was a non-answer or pause that seemed to reflect an awareness of guilt. If the prosecutor can comment on a non-answer, presumably the prosecutor can also comment on a pause before an answer. The prosecutor will then ask about that during the direct examination, and the investigator will give his view that the defendant paused or looked nervous or declined to answer particular questions. The prosecutor can then focus on that before the jury, and there’s not much a defendant can do in response. Taking the stand would require the defendant to testify and let in adverse facts like prior crimes, which most defendants won’t want to do. So the government’s characterization will be tough to challenge, even if the investigator is being unfair in his characterization of the defendant’s acts.
posted by yoink at 9:06 AM on June 18, 2013 [3 favorites]


I am hereby asserting my right to tell the American Justice System to go fuck itself.
posted by It's Raining Florence Henderson at 9:06 AM on June 18, 2013 [1 favorite]


Gotta say that I'm really suspicious of the suspiciousness of the Texas judicial system as aimed at a guy named Salinas. (And before you get on me for bashing: I am a native and live here.) This is one of those decisions that guys like Scalia can make because they've never been on the business end of a suspicious cop or prosecutor trying to hang them.
posted by immlass at 9:12 AM on June 18, 2013


Re: the note that Thomas would allow silence to be introduced as evidence even if the defendant had specifically invoked the Fifth, bear in mind that he and Scalia are the two votes on the court to overturn Miranda (as Kerr also mentions in the post linked above).
posted by Holy Zarquon's Singing Fish at 9:15 AM on June 18, 2013


Well, IMHO this was expected.
I have been a member of the "I told you so" party for years now.
Prior to that I founded the local "If you go down this path" party.
I keep finding fliers to join the "Donkey Punch the Government" Party, but the people handing those out are the same people I was fighting against in the previous two parties. As if I can't remember faces.

On a side note-Any Canadian's interested in a mail-order-bride?
posted by QueerAngel28 at 9:34 AM on June 18, 2013


We're approaching Simpsons territory here...
Jones: So, Mr. Simpson: you admit you grabbed her can. What do you have to say in your defense?
Homer: [looking lustful in a clearly-paused VCR shot]
Jones: Mr. Simpson, your silence will only incriminate you further. [paused shot of Homer grows larger] No, Mr. Simpson, don’t take your anger out on me. Get back! Get back! Mist — Mr. Simpson — nooo!
Over-Voice: Dramatization — may not have happened.
posted by furtive at 9:38 AM on June 18, 2013 [2 favorites]


Yoink, I think the concern voiced by Kerr will be an issue *whenever* a suspect agrees to a non-custodial, non-Mirandized interview with a cop investigating a crime. The prosecution will characterize the suspect in the most incriminating way possible, and the only way to rebut that testimony will be 1) to have an attorney who is really good at cross-examining the police or 2) to have the defendant take the stand. That's why I agree that it's good legal advice to never talk to the police if there is any chance you might be considered a suspect.

One way to address Kerr's concern is through policy changes that would require that all police interviews/interrogations with suspects be recorded, so that there is a documentary record of anything that might be characterized as "suspicious" or "incriminating" by a police officer. (And of course those recordings need to be carefully edited to keep the jury from seeing anything that would be protected under the 5th Amdt.)
posted by BobbyVan at 10:05 AM on June 18, 2013 [1 favorite]


[Law and Order BONG BONG]

I wonder how long it took to create that sound effect before it ended up in the show? I'm picturing a smoke- and despair-filled studio at two in the morning, chain-smoking engineers warily eyeing a morning deadline. One of them yells, "Needs more reverb!" and the others faces light up like they've seen God.


No, the courts of New York do not actually blast those two, distinctive notes through the speaker system (although that would be amazing), but I can’t get them out of my head. According to IMDb, “The distinctive thunk-thunk sound effect used in between scenes was created by combining close to a dozen sounds, including that of a group of monks stamping on a floor. The sound is intended to be reminiscent of both a jurist’s gavel and a jail-cell door slamming.”
posted by stenseng at 10:12 AM on June 18, 2013 [2 favorites]


So if you are testifying in court, or are actually talking to the police (with lawyer present of course), should you state up front: "All of my pauses or awkward silences shall be henceforth construed as me invoking my fifth amendment right?"
posted by jetsetsc at 10:15 AM on June 18, 2013


If what you intend to do is assert your Fifth Amendment right, what you should do is actually assert it. That seems to be a major takeaway from the Court's Fifth Amendment jurisprudence.

Which is, of course, significantly easier for people who have the education to know that they have the right and need to assert it, and the ability to function well enough under the pressure of police questioning to remember that and act on that knowledge.
posted by Bulgaroktonos at 10:34 AM on June 18, 2013 [4 favorites]


the ability to function well enough under the pressure of police questioning to remember that and act on that knowledge

I don't think aspect of interactions with the police can be stressed enough.

Several years ago, I was detained on my way out of a gym by several officers because I looked *a lot* like a guy who had done some pretty heinous things on the UT campus. They informed me of this fact when they stopped me, and although they didn't do anything particularly menacing, I noted that they took up positions around me to cut off escape routes, and they all watched me like hawks while they questioned me, with some officers keep their hands very near their weapons.

To their credit, they were all extremely professional and they actually tried to be a little bit cool about it once they determined I wasn't the guy.

But the whole time they were questioning me, I was too busy trying to stop my knees from knocking together and to keep myself from stuttering to even remember how to spell Bill of Rights let alone remember what it entitled me to.
posted by lord_wolf at 10:46 AM on June 18, 2013 [14 favorites]


If you are not in custody ... you are having a voluntary encounter and can shut the door, walk away, get up and leave, etc.

What's the legal term for something that the law asserts is the case but repeatedly conflicts with how things happen in the real-world?
posted by benito.strauss at 11:01 AM on June 18, 2013 [3 favorites]


So... can anyone tell me how to not look suspicious?

I mean, if I hesitate nervously, fidget, shuffle my feet, and look down, that looks suspicious, right? But if I answer questions in a relaxed and confident manner, look my questioners in the eye, and keep my demeanor casual, that's suspicious too, because I look like a professional criminal who knows how to deal with police interrogations. If I fold my hands in front of me and look up at the ceiling piously, I look guilty because I'm invoking help from above; if I look to the side I'm all shifty.

Seriously, who doesn't seem guilty when they're being questioned by the police? Sit someone down, and tell them not to look guilty, and see what happens. Add on the pressure from knowing that a single misstatement could ruin your life instantly, and you've got a recipe for making anyone look like a criminal.

If I'm ever interrogated by the police, I'm just going to do the chicken dance. Let them interpret that one.
posted by MrVisible at 11:02 AM on June 18, 2013 [4 favorites]


What's the legal term for something that the law asserts is the case but repeatedly conflicts with how things happen in the real-world?

De facto/de jure, maybe?
posted by The Underpants Monster at 11:03 AM on June 18, 2013


At this point I'd like to just call it a "Scalia."
posted by Holy Zarquon's Singing Fish at 11:04 AM on June 18, 2013 [2 favorites]


Anonymous tips are pretty worthless. If a judge even lets them in to court, defense attorneys can wreck them pretty easily, for the obvious reasons.

Such tips aren't typically used as evidence at trial, they are used (ideally, with corroboration) to obtain warrants to go gather other evidence.
posted by snuffleupagus at 11:09 AM on June 18, 2013


What's the legal term for something that the law asserts is the case but repeatedly conflicts with how things happen in the real-world?

If you aren't trying to be cryptic, it's the same as the commonplace term: 'unrealistic.' The cliched commentator's phrase would be "sadly out of touch" (with reality).

A "legal fiction" overlaps somewhat, but a legal fiction can exist without being necessarily 'out of touch' in the same way (rather it's just arbitrary, obscure, or similar).
posted by snuffleupagus at 11:12 AM on June 18, 2013


The sound is intended to be reminiscent of both a jurist’s gavel and a jail-cell door slamming.

Ironically enough, in the year 2020, when USadians want to stay out of jail for fear of self-incrimination through silence, they will program their brainchips to beam the sounds BONG BONG at police officers.

"Where did you hide the loot?"
"BONG BONG."
"Damn it, he's clammed up! Get him his robottorney!"
posted by Blazecock Pileon at 11:16 AM on June 18, 2013 [2 favorites]


Pssh. Hack MacGui demolishes freely downloadable robottorneys.
posted by snuffleupagus at 11:18 AM on June 18, 2013


Mod note: Original link seems to have gone haywire, swapped it out.
posted by cortex (staff) at 11:19 AM on June 18, 2013


Thanks cortex
posted by dukes909 at 11:23 AM on June 18, 2013


The training I've seen suggested that honest or helpful people would generally be engaged, leaning forward, and vehement in protestations of their innocence. It also noted that research suggested that most errors were of the "thinking truth is a lie" sort and that investigators should be aware of that.

An anonymous tip alone will probably not qualify for a warrant, and due to fruit of the poisoned tree doctrine, anything that arises from a tip (including other evidence that is used to get a warrant) will be potentially subject to exclusion.

And of course the police may just think its a bad or a falsified tip and not pursue it at all.

Basically do whatever you need to do, just don't be surprised when nothing comes of your anonymous tip.
posted by kavasa at 11:25 AM on June 18, 2013


An anonymous tip alone will probably not qualify for a warrant, and due to fruit of the poisoned tree doctrine, anything that arises from a tip (including other evidence that is used to get a warrant) will be potentially subject to exclusion.

My (rather prominent) criminal procedure professor disagrees with you, although as I mentioned some corroboration is usually needed--and can typically be gathered without a warrant. (So does the police commander that came to talk to my section.) The exclusionary rule has been hollowed out by a number of decisions. But I can't tell you how much it warms my heart that this is what you are being taught, and I hope your department continues to avoid teaching the most agressive viewpoint.
posted by snuffleupagus at 11:27 AM on June 18, 2013


If the prosecutor can comment on a non-answer, presumably the prosecutor can also comment on a pause before an answer. The prosecutor will then ask about that during the direct examination, and the investigator will give his view that the defendant paused or looked nervous or declined to answer particular questions. The prosecutor can then focus on that before the jury, and there’s not much a defendant can do in response. Taking the stand would require the defendant to testify and let in adverse facts like prior crimes, which most defendants won’t want to do. So the government’s characterization will be tough to challenge, even if the investigator is being unfair in his characterization of the defendant’s acts.

The problem is that the fifth is supposed to protect the innocent and the merely suspicious as well. If a a suspect gets all nervous and clams up when asked where he was yesterday between two and four, it might be because he was busy murdering his elderly neighbor with a meat cleaver, or it might be because he was busy having an affair, was involved in a dope deal on the other side of town, was taking his kid sister to Planned Parenthood without their parents' knowledge, or even was on the way to his butcher shop with a brand new meat cleaver.

As the Supreme Court said back in 2001 in Ohio v. Reiner: "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." Plus, if our suspect happens to lie about where he was, perhaps not wanting the police or his family to know about his illicit or sensitive actions, he can be charged with obstruction (or even perjury when it gets written into a statement for him to sign).
posted by zachlipton at 11:32 AM on June 18, 2013 [1 favorite]


I am invoking my TOS rights under the fifth amendment to the USA EULA: No user shall be held to answer for a capital, or otherwise infamous breach of TOS, unless on a presentment or indictment of a Moderator, except in cases arising in Redditania, or in the Republic of 4Chan, when in actual service in time of Cyber War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb or denial of service; nor shall be compelled in any criminal case to be a witness against himself or herself or any of his/her sockpuppets or MetaFilter Spouses, nor be deprived of life, liberty, property, or accounts, without due process and public shaming; nor shall private property be taken for public use, without just compensation, except that corporations may take whatever they want, being not legally "public" nor subject themselves to EULAs. Also, in this context "TOS" stands for "Terms of Service" not "The Original Series," because that would just be silly. BONG BONG
posted by It's Raining Florence Henderson at 11:33 AM on June 18, 2013 [5 favorites]




nor shall be compelled in any criminal case to be a witness against himself or herself or any of his/her sockpuppets or MetaFilter Spouses

Do we still get to exercise Metafilter spousal privilege, or did Scalia take that away, too?
posted by Blazecock Pileon at 11:41 AM on June 18, 2013


It’s not so much the police interview as it is what the prosecutor makes of it in court (to reiterate from yoink’s comment).

The voluntary nature of the questioning, IMHO, is disputable

“Suspected of murder, Genovevo Salinas had been brought into a police station for questioning. All parties agreed that he was not in custody and no Miranda warning was read. Salinas voluntarily answered police questions about the crime.”


But even given - the police will deliver any and all the data they get to the prosecutor. Did he look guilty? Sure. Or no, he looked worried. Or no he looked helpful. Whatever. Some of that is admissible, some isn’t. But police aren’t going to just leave any scrap of potential evidence laying on the ground unless they suck at their jobs. They’re supposed to shake anything they can out of everyone. Even when by the book respecting someone’s rights, they’re still supposed to get all possible information from you. But all they can do is arrest you and collect data and physical evidence. They can’t sentence you to prison.

This, however, can send you to prison, regardless of evidence.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote. The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.”


I’d probably pause significantly if ask if I committed a crime. If it were particularly heinous I’d have to reign in the fury at being accused (anger can be as debilitating as fear).
But the fact that this particular question is sort of a technical question is also troubling. Is a suspect supposed to know anything about ballistics testing?

For me, the big gorilla is – did, in fact, the f’ing shell casings match? A lot of the legal analysis ignores the physical evidence:

“Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning…Prosecutors soon concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge petitioner…”


From what I’ve read, a number of sites claim that ballistics tests matched the shotgun to the murder scene.
Except you can’t do ballistic fingerprinting on a shotgun. You can only examine the casings for firing pin and breech and ejector marks and see if it’s been cycled through the same weapon.

After some searching – yes, this is (apparently) what happened. The casings at the murder scene matched Salinas’ shotgun.

That, to me, is a pretty big hunk of the case. Or should be. There's scientifically based physical evidence tying his weapon to the scene of the murder. That should be in bold and blinking. That's what you want from the justice system. Hey, I think this is the guy because it's his gun that was used to blow all those people away.

Also we have eyewitness testimony he was there.

For some reason the prosecutors also seem to need:
'he looked kinda guilty when we asked him about it and didn't say anything' - as evidence.

Guy's shotgun blows people away at a party. Witnesses say Salinas was there. Pfft. Can't convict a guy on that.
Oh, but if he looks guilty when asked about it, hell, that's a dead giveaway.
posted by Smedleyman at 11:44 AM on June 18, 2013 [5 favorites]


Most of the people in this thread, even though we all know not to talk to the cops and why, probably would nevertheless talk to an actual cop actually questioning them.

Well, in real life, it's a balance of your interests, right? If my neighbor and friend has been shot, clamming up and saying zero may maximize my chances of not getting falsely accused. But saying nothing about the car that tore out of the driveway after a series of loud cracks will maximize the chance that my friend's killers will get away with it. So, yeah, typically in real life I'll talk unless I think I may end up considered a suspect of something.

That's still not optimal for society, though. It means that if I'm in a restaurant and see a woman getting choked, I'll say something. If I'm at a party where I'm not 100% sure that everyone drinking is over 21, and see the same thing, I'm not going to want anything to do with the cops.
posted by tyllwin at 11:53 AM on June 18, 2013 [2 favorites]


snuffle, (how many attorneys and law students are on this site), I'm curious now:

In your state, if Jane citizen sees someone on the freeway that seems to be driving drunk, what happens when she dials 911? Does the telecommunicator even bother asking for her name and number?
posted by kavasa at 11:56 AM on June 18, 2013


It's official: the US Constitution is now a giant game of Calvinball.
posted by workerant at 12:16 PM on June 18, 2013 [4 favorites]


That's an interesting question.

A tip on a drunk driver is arguably something of a special situation. My direct recollection of the specific hypos we discussed in class is a bit foggy, and I don't see that particular situation in my notes. But I will see what a quick search turns up.

For my comment upthread, I was thinking about potential examples such as: residents of a neighborhood disinclined to talk to officer might still provide a few anonymous tips on a corner drug market giving reasonable suspicion to stop and frisk once verified by their predictive value (for instance of who would show up there and when) and buttressed by observation of the investigating officer of other activity consistent with a drug market.

As it came up vis a vis how people who didn't want to be in a face to face situation could still try to provide information, that the police do have ways to act on (if not always). It's definitely not optimal, as compared to non-anonymous informants.
posted by snuffleupagus at 12:20 PM on June 18, 2013


So, it would seem that under California's 'DUI 911' program, anonymous tips are acceptable and will justify an investigative stop based on the public safety exception. See People v. Wells (2006) 38 Cal.4th 1078 -- Alameda DA's casebrief. Note the minimal indicia of (predictive) reliability needed, satisfied by confirming the reported description of the car. What's helpful is for the operator to get the caller to describe a moving violation of some kind while making the report, or provide more details about the car.
posted by snuffleupagus at 12:35 PM on June 18, 2013


In your state, if Jane citizen sees someone on the freeway that seems to be driving drunk, what happens when she dials 911? Does the telecommunicator even bother asking for her name and number?

Well, I think this would be a call to the highway patrol or the non-emergency line. But, that just puts the authorities on alert.

Regarding anonymous tips, they do not convict people. They are just that - "tips". A neighbor tipping the cops of drug dealing in their neighborhood does not mean that the suspected homeowner gets arrested and convicted, but it does mean that the cops might decide to check out the location and the cops may then in that process develop probable cause for a warrant.

IAAL.
posted by Tanizaki at 12:40 PM on June 18, 2013


In California, there's a statewide 911 program, as per the above. Whether the CHP, Sheriff or local police are dispatched will depend on where you are.

IANLALSBNYAL.
posted by snuffleupagus at 12:43 PM on June 18, 2013


TAKE TO THE SEAS!
posted by stenseng at 12:50 PM on June 18, 2013 [1 favorite]


Well, and given what we know about spying on our phones, are anonymous tips anonymous anymore? If the cops figure out who you were when you called in, can they add you to the suspect list? And how hard is it, to figure out who you were? How can you call anonymously anyway, when there aren't any more payphones?

So basically, everyone's more paranoid, fewer crimes get reported and everybody's less safe. Yay?
posted by emjaybee at 12:58 PM on June 18, 2013 [1 favorite]


> Ask "Am I free to go?" [...]
> If no (i.e. you are under arrest)


Not being free to go doesn't mean arrested. There's a middle path: detainment.

> Probable cause has been reduced to "I felt like they were suspicious"

Many cops think plain suspicion is enough to detain someone, but it's supposed to be reasonable and articulable suspicion. They have to think you just committed or are just about to commit a specific crime. However, they don't have to tell you what that suspicion is. So if the answer to "am I free to go?" is no, don't bother pestering the cop with "why? what do you think I did?". Just grab your pant legs1 and try to out-bore him.

1from Arrest-Proof Yourself, so when a cop gets in your face yelling w/ spittle flying, you don't try to put up your hands in a threatening manner. It's a crazy book: recommends welding trunk shut & removing back seat of a car for a teenager
posted by morganw at 1:01 PM on June 18, 2013 [2 favorites]


Very nicely put, MoonOrb.

So, does an anonymous tip, with nothing else, amount to reasonable suspicion? There is a line of Supreme Court cases (Florida v J.L. and Alabama v White) deal with this question. Determining the standard for reasonable suspicion is hard, and depends a little bit on the nature of the tip.

The Wells case linked above was the CA Supreme Court's updating of the previous "'drunk driver = magic words for reasonable suspicion" rule (from People v. Willard, 1986) to revive and harmonize it with the JL and White cases. As you say, in California it seems clear that the right kind of anonymous tip will be enough for a stop, although the bar isn't so high.

From the Wells case brief above:

For this reason, the court ruled that officers may stop a car to investigate an
anonymous report that the driver is impaired if the following circumstances existed:
(1) SAME CAR: The caller must have provided a sufficient description of the car and its
location so that officers can be reasonably certain they are stopping the right car.5
(2) CALLER SAW THE VIOLATION: It must appear that the caller had witnessed the
violation and was not merely “speculating or surmising unlawful activity.”
(3) DANGER: The caller’s description of the erratic driving must have reasonably
indicated the driver posed an imminent threat.
(4) CALLER’S RELIABILITY: There must be some reason to believe the caller was
reliable. In these cases, he will be deemed sufficiently reliable if the officers were
able to confirm that his description of the vehicle and its approximate location
were accurate.

posted by snuffleupagus at 1:23 PM on June 18, 2013 [1 favorite]


Many cops think plain suspicion is enough to detain someone, but it's supposed to be reasonable and articulable suspicion.

What cops think the law is is frequently totally bonkers. I once read a police report involving a stop-and-frisk where the officer specifically said that she was frisking looking for ID, and that she removed the marijuana thinking it was a wallet.

I'm sure she actually thought that ID was something you were allowed to frisk for in a stop-and-frisk, even though "you can only frisk for weapons" is fairly straight forward as these rules go.
posted by Bulgaroktonos at 1:24 PM on June 18, 2013 [2 favorites]


Most of the people in this thread, even though we all know not to talk to the cops and why, probably would nevertheless talk to an actual cop actually questioning them.

I've told the story before about the time I was cutting my bike lock. It ended up not being a big deal at all, but it's an incident I think about sometimes because I did appear suspicious, did everything utterly wrong and talked to the police (well, campus police anyway), and things worked out ok. I tell myself that this wasn't such a dumb thing to do (after all, I was completely innocent, any sane person could see that), and it's not like the campus police would make a criminal case out of it anyway, but I'm pretty sure I would have done the same thing if it were the city police off campus. The idea of shutting up and looking totally guilty is pretty unthinkable (only a bike thief would do that, right?); I wanted to go for a bike ride, not deal with the police; and it's not like a law-abiding college student on a Sunday of a holiday weekend has a criminal lawyer on hand anyway.
posted by zachlipton at 1:29 PM on June 18, 2013


I was gonna say the ACLU should issue a card to every American that is to be handed to the cops at the outset of any interaction like an ID, that specifically invokes all relevant rights.

But then I realized young men of color in places like New York might be tempted to keep that card in their *wallet.*

Every hip hop group needs to record a memorable ditty with the words you say to the police if engaged by them. Every single one. Public service announcement style.
posted by spitbull at 1:31 PM on June 18, 2013 [4 favorites]


Prosecutors Just Don't Understand

Fifth Cop Commandments

Late Representation
posted by snuffleupagus at 1:35 PM on June 18, 2013


I really don't get the Fifth Amendment.

If you don't say anything, they can assume that it's because your testimony would incriminate you, which counts as evidence that you're guilty.

But if you specifically claim that you aren't saying anything because your testimony would incriminate you, then they can't assume anything about that, and it does not count as evidence that you're guilty.

I don't get it.
posted by designbot at 1:46 PM on June 18, 2013 [3 favorites]


Yeah I mean I asked that specific question because in my state (MN), if you call in a drunk driving tip, they will absolutely ask for your name and number. I've also had instructors talk about that, and part of the reason is that having that name and number makes that tip a lot more reliable in the eyes of our courts. Otherwise, yeah, the officer is going to be spending extra time following the vehicle in question and trying to make some of her own behavioral observations to bring reasonable suspicion into play. With good enough observations made by an identified caller, however, an officer might be more likely to immediately pull someone over upon locating them.

Anyway, my base assertion is that, for a number of reasons, anonymous tips are substantially less likely to result in police action being taken on a particular event/place/whatever than non-anonymous tips would be.

Tanizaki - if you see someone on the road that you think is drunk, please call 911. Drunk driving is "someone is being reckless with their life and the lives of others and people may die at any moment." That is absolutely an emergency. And yeah, who responds will depend on where the driver is.
posted by kavasa at 2:04 PM on June 18, 2013


It's a crazy book: recommends welding trunk shut & removing back seat of a car for a teenager


Wait what?
posted by spitbull at 2:52 PM on June 18, 2013


I'm guessing so teenagers have nowhere to hide anything that cops could bust them for and can't drive around with a bunch of friends. The other reading is so you have a secure place to store teenagers, but I'm just going to go ahead and assume for sanity's sake that that's not the case.
posted by It's Raining Florence Henderson at 2:59 PM on June 18, 2013


Those are places evidence can be planted.
posted by bukvich at 3:20 PM on June 18, 2013 [3 favorites]


> so teenagers have nowhere to hide anything that cops could bust them for and can't drive around with a bunch of friends

Exactly. The book's kind of an eye-opener. Suggests crawling under a police car head first if on the ground being beaten so your head's harder to hit. It points out a lot of simple things people who aren't awful criminals, but just have poor judgement (teens, addicts) do that get them in trouble. It also talks about how bad an arrest, even without conviction, can screw up your life.

More crazy (but potentially useful) advice: when being harassed by the police and on the edge of being taken in, shit your pants and try to throw up all over yourself.
posted by morganw at 3:46 PM on June 18, 2013


Don't talk to the police.
posted by j_curiouser at 4:24 PM on June 18, 2013


stenseng: "TAKE TO THE SEAS!"
OH NOES MARITIME LAW:
Barry Zuckercorn: "They wanted me there at eight bells. I thought that was their 5 p.m. By the time I got back the courtroom was reverted back to the crab restaurant."
posted by Dr. Zira at 4:28 PM on June 18, 2013


when being harassed by the police and on the edge of being taken in, shit your pants and try to throw up all over yourself

Don't worry. If I'm being harassed by the police and on the edge of being taken in, the rest should take care of itself quite naturally.
posted by It's Raining Florence Henderson at 4:30 PM on June 18, 2013


Nice that receiving the Constitutional guarantees we all are supposed to enjoy now requires that we remember and recite a magical incantation at the appropriate time.
posted by wierdo at 4:45 PM on June 18, 2013 [2 favorites]


Why not? If you have killed someone that really needed killing, maybe not. But if you're just a murdering bastard, please go ahead and go to the police station and talk about it. That is the best non-legally binding advice.
posted by It's Raining Florence Henderson at 5:00 PM on June 18, 2013 [1 favorite]


That seems reasonable to me. If you have killed someone who needed killing, you should really get your side of the story in before the prosecutors get any funny ideas.
posted by Joe in Australia at 5:32 PM on June 18, 2013


It also helps to remember that if you have killed someone, do not go to the police station to talk about it.

I actually just read about one of these yesterday when looking up some Fifth Amendment particulars (though this is more of a Sixth Amendment case really): People v. Claudio, a case in which you demonstrate far more competence in your comment here than a certain licensed New York attorney. Apparently, a 16-year-old was robbed and shot dead in Queens while returning from his high school prom. Police received an anonymous tip and asked to speak to Mr. Claudio about the murder. Claudio and his stepmother went to the police station, told the officers that he was home sleeping at the time of the crime, and the police let him leave. Claudio then called attorney Mark Heller, picking his firm out of the phonebook. They met the next morning and Claudio hired Heller. Then the idiocy happens. As the appeals court tells it:
Heller and defendant, after a discussion, determined that defendant would surrender to the Queens County District Attorney. Defendant and Heller offered sharply differing accounts at the suppression hearing of what Heller advised his client to say to the authorities. The finding of the courts below, which is supported by the record, was that Heller did not explain the seriousness of the charges defendant might face or his available defenses. The lawyer told defendant that the best course of action was to surrender, and that the lawyer might be able to obtain probation or parole without jail time if defendant did so.

When defendant and his attorney arrived at the District Attorney's office, the lawyer was told by a prosecutor that there was insufficient evidence to charge defendant unless he confessed. He was also informed that there would be no plea bargain. The lawyer did not ask whether defendant was wanted by the police. The courts below found that, after further conversations with representatives of the District Attorney's office, Heller advised his client to make a statement. With his attorney present, defendant was interviewed by the authorities and made extensive inculpatory admissions, resulting in his arrest.
Lest you think there was some kind of big mixup or trickery, it seems the DA's office was utterly honest with Heller about the lack of evidence:
Heller was approached by Assistant District Attorney Del Vecchio, who requested that Claudio give a statement. Heller, at first, refused, saying that they should "[j]ust book him and arraign him." Del Vecchio replied, "I want to talk to him, we can't book him and arraign him on nothing." Indeed, [D.A.] Santucci, Del Vecchio, and the other assistant district attorneys testified that without a confession, they had lacked sufficient evidence to charge Claudio with the Zweikert murder.

Why exactly Heller advised his client to turn himself in and incriminate himself when the police weren't looking for him and there was no possibility of a plea deal is a mystery. As another panel would conclude a decade later as the appeals wound on:
We accept the premise, which was shared by every court that has considered this case, that retained counsel's conduct in advising defendant to confess to the police -- at a time when there was no concrete evidence against him and no possibility of a plea offer -- represented gross professional incompetence.

Mr. Claudio, however, remained in prison despite his counsel's idiocy because, as it turns out, people not accused or even suspected by the police do not have a right to council, effective or otherwise. But rest assured MoonOrb, you have clearly just demonstrated better legal reasoning than poor Mr. Claudio's lawyer.
posted by zachlipton at 6:39 PM on June 18, 2013 [1 favorite]



Exactly. The book's kind of an eye-opener.


This book is a weird mixture of wrinkly-ass-old-man sexism and mildly impressive sensitivity to the interiority of (some, apparently randomly-chosen) people whose experience is far different from the author's and some probably good avice.
posted by kengraham at 8:21 PM on June 18, 2013


Today Among People In Robes
posted by homunculus at 11:01 AM on June 20, 2013


Odds are more than a few Blue minds will snap shut when I state that the Logos Radio Network ran Ron Paul ads, will spend hours talking about Gun Rights, more than a few shows openly support libertarianism but I'll suggest Eddie Craig's position of "shut up, keep shutting up, and shut up some more" WRT to the police.

Things to think about saying in a traffic stop

But the discussion of mortgage fraud and asking 'if the conviction rate is 99.6%, why do you need to spend more money on SWAT?' or the goals of helping to set up court watchers (The Tao of Law effort) may be enough for some of you to just hold your noses and skip that which offends thee to get to the parts that are important.
posted by rough ashlar at 7:20 AM on June 23, 2013


Or you could just not smoke pot in your car, I guess.
posted by unSane at 4:08 PM on June 23, 2013


I can't think of any other reason you might need to be concerned about your rights around cops.
posted by Drinky Die at 7:09 PM on June 23, 2013


If you behave in the way that guy describes in his document you're vastly increasing your chances of making yourself a target for cops.
posted by unSane at 4:38 AM on June 24, 2013


That flyer is absolutely nuts. (MAYBE IT'S A FALSE FLAG FLYER MEANT TO SEND PEOPLE TO PRISON!!!!)

For example, it makes the grand, bizarre pronouncement that, in Texas, "you ARE ALWAYS in custodial arrest when stopped for a so-called 'traffic offense' (see Secs. 543.001-009, Texas Transp. Code)". This puzzling claim is not backed up at all by the cited sections in the Texas Transportation Code. These sections merely describe arresting and charging procedures for traffic offenses. Cursory Google-Fu shows that Texas, much like every single other state in the union, does indeed feature a distinction between traffic stop detentions and arrests.

The flyer then does a few self-contradictory loop-de-loops on the same topic. It insists at first that it is a "TOTAL LIE!" if a police officer says that you are merely being detained - not only in Texas, but also in "most other 'states'". Note that it is unexplained why the word "states" is in quotes. Perhaps statehood itself is forbidden by some other section of the Texas Transportation Code.

Later, however, the flyer revises its own position, saying that it is only "almost always" a lie that you are being detained, as opposed to being under arrest. It is left to the reader to guess from where this wiggle room has suddenly emerged.

The author claims that police officers may not ask for your ID - maybe that's true on your own private road, only a Texan lawyer would know for sure, but that sure as hell won't be the case on actual, public roads. He also gives the atrocious advice to never present a police officer with any legal documents. However, in Texas, it is a violation to not present your driver's license on demand. Ch-ch-ch-check out Texas Transportation Code § 521.025. This will open the door to fates worse than just the initial $200+ fine.
posted by Sticherbeast at 6:57 AM on June 24, 2013 [1 favorite]


That's when you need the second flyer in the series: "Let's Learn About: Your Sovereign Citizenship and the Sacred Fringe of Admiralty"
posted by snuffleupagus at 7:01 AM on June 24, 2013 [2 favorites]


The author claims that police officers may not ask for your ID - maybe that's true on your own private road, only a Texan lawyer would know for sure, but that sure as hell won't be the case on actual, public roads. He also gives the atrocious advice to never present a police officer with any legal documents. However, in Texas, it is a violation to not present your driver's license on demand.

He's slopping around between traffic stops and other interactions. He's right - sorta - when he writes, specifically, that an officer can't "walk up and demand that you answer questions, produce ID" etc. The officer can do so, but can't compel you. He's out of date to an extent since Hiibel where the Supremes said that there can be, presuming some probable cause, a requirement to self-identify. But you can always ask if you're being detained before answering - they cannot compel you if you are not.

Driving is different in that you must present proof you're licensed to operate or else you're breaking that law. Given REAL ID even the Supremes couldn't make a case that it's just proving driving licensure w/o necessarily being personally identifiable. But the slide is pretty inexorable towards the "prove who you are, fucker" extreme. I used to think the CATO obsession with railing about national ID was somewhat nutters but I'm starting to think they're just looking at the big picture in that regard.
posted by phearlez at 1:35 PM on June 24, 2013


I was specifically thinking about IDs in the context of a traffic stop, since that is what the flyer was talking about. You are right to point out that this would be different on foot - I should have been more clear.
posted by Sticherbeast at 1:37 PM on June 24, 2013


Oh, so should the flyer writer. He's going to get someone arrested or their license revoked.
posted by phearlez at 9:52 AM on June 25, 2013


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