PDA

View Full Version : Legal You Have the Right to Remain Silent. But You Must Tell Me You're Going to Remain...


healthpellets
06-01-2010, 01:43 PM
Thanks Supreme Court! :thumb: You really nailed this one! :doh!:

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/01/AR2010060101378.html?hpid=topnews

Text of story removed to abide by copyright standards and to avoid the assholes at RightHaven, LLC

Baby Lee
06-01-2010, 01:55 PM
Thanks Supreme Court! :thumb: You really nailed this one! :doh!:
What is the problem with the ruling?
Two separate issues here, the RIGHT against self-incrimination, and INVOKING the right so as to stop detectives from asking questions.

Asking him questions does not violate his right against self-incrimination, until he invokes said right. He still had the right to remain silent, and exercised it right up until he freely chose to forfeit that right. Silence offers no information regarding his state of invocation.

KC native
06-01-2010, 01:55 PM
Police state FTW!

Brock
06-01-2010, 02:44 PM
You have to speak to ask for an attorney, don't you? Put me down for a "don't care" on this.

BucEyedPea
06-01-2010, 02:45 PM
Does this mean a mute person can still use sign language?

Brainiac
06-01-2010, 02:49 PM
It seems like a pretty reasonable decision to me.

I think it's telling that Sotomayer completely over-reacted by saying that this ruling "turns Miranda upside down". It shows what we can expect from her.

Brock
06-01-2010, 02:53 PM
I guess I don't get how else the cops are supposed to know you've invoked the right to remain silent if you don't tell them "I'm not going to talk to you".

Amnorix
06-01-2010, 03:04 PM
Think I'm with the majority on this. Can't see why the police must stop asking questions / interrogating a suspect if he doesn't say he wants to invoke his right to silence. The main thing is -- at what point do the cops know that he has invoked his right to silence if he doesn't say it? 2 minutes of silence? 10? 25? 47? When do cops have to stop asking questions?

I'm not generally in favor of leaving cops guessing. They try to do their jobs and do them well, for hte most part, but they're not lawyers and they operate better, IMHO, with clear rules.

mlyonsd
06-01-2010, 03:18 PM
Serious question here since I don't know about these things.

Say I'm taken into custody, read my rights, say I'm going to keep silent but then admit to committing whatever it is I'm arrested for before my lawyer arrives.

Can that be used as evidence?

banyon
06-01-2010, 03:21 PM
Serious question here since I don't know about these things.

Say I'm taken into custody, read my rights, say I'm going to keep silent but then admit to committing whatever it is I'm arrested for before my lawyer arrives.

Can that be used as evidence?

Did the police ask you questions after you said you were going to be silent?

HerculesRockefell
06-01-2010, 03:23 PM
Serious question here since I don't know about these things.

Say I'm taken into custody, read my rights, say I'm going to keep silent but then admit to committing whatever it is I'm arrested for before my lawyer arrives.

Can that be used as evidence?

In response to a question from the police? Can't be used against you

Are you the one who reinitiates contact with the police and tell them you did it? Can be used against you

mlyonsd
06-01-2010, 03:27 PM
In response to a question from the police? Can't be used against you

Are you the one who reinitiates contact with the police and tell them you did it? Can be used against you
If true this answers my question.

I have no problem with the ruling then. To me it just makes the rules clear. I don't see what Sotomayer is whining about.

banyon
06-01-2010, 03:30 PM
If true this answers my question.

I have no problem with the ruling then. To me it just makes the rules clear. I don't see what Sotomayer is whining about.

He is correct. The only think I would add is that you can rescind your invocation of the right as well.

underEJ
06-01-2010, 03:30 PM
This isn't even new. If you remain silent with or without invoking your right verbally, they do not have to stop asking you questions. Then may try to ask you small talk questions and any verbal answer un-invokes your right to remain silent. It must be re-invoked by the person being questioned. The ACLU gives very good advice on how to be sure your rights are clearly and effectively invoked.

"I am going to remain silent and I want to speak to a lawyer." Say that, then if they ask if you would like a glass of water, for example, answer politely yes or no, and then repeat the whole rights statement. Very clear and effective, and renders this court decision moot.

healthpellets
06-01-2010, 04:38 PM
does no one see just how silly this is? you have the right to remain silent. a right granted to you by this Court. now, however, in order to invoke this right, you must...wait for it...speak.

and maybe someone that practices in a criminal court can correct me here (since I no longer practice at all), but IIRC, simply remaining silent, or now invoking your right to remain silent, does not mean that the police must stop questioning you. is that correct?

so what's gone down recently? we now have some new Miranda law a few months ago stating that within X number of days (three maybe?) the cops can go talk to you and there's no need to Mirandize you again. and now you must speak to remain silent.

we're slowly but surely inching toward removing any Miranda protection. and maybe some think that is the proper state of affairs. and maybe it is since that's the way it was before Miranda came on the scene. but if that's the case, let's just wipe the whole damn thing out instead of taking it apart piece by piece.

HerculesRockefell
06-01-2010, 04:49 PM
does no one see just how silly this is? you have the right to remain silent. a right granted to you by this Court. now, however, in order to invoke this right, you must...wait for it...speak.


The Court didn't grant us the right to remain silent, it's clearly in the 5th Amendment that one cannot be compelled to be a witness against oneself.

healthpellets
06-01-2010, 05:07 PM
The Court didn't grant us the right to remain silent, it's clearly in the 5th Amendment that one cannot be compelled to be a witness against oneself.

which is all well and good, but the Court has the power to determine how much or how little of that right you get to keep.

Saul Good
06-01-2010, 08:48 PM
which is all well and good, but the Court has the power to determine how much or how little of that right you get to keep.

Telling someone that you aren't talking is not the same thing as incriminating one's self. In this case, the guy would answer a question here and there with a very short response in between periods of silence. His lawyer is arguing that his silence was evidence that he was invoking his right to silence. The problem is that he didn't remain silent.

Nobody made him answer the questions. He had the right not to answer. He clearly chose to waive that right.

BucEyedPea
06-01-2010, 10:30 PM
which is all well and good, but the Court has the power to determine how much or how little of that right you get to keep.

That is BS! Relying on a black robed diety doesn't make it right. This violates a natural right. Period.

verbaljitsu
06-01-2010, 11:27 PM
I think you all need to think about this a little more before jumping on the pro-interrogator bandwaggon.

There is a serious problem in this country right now with false confessions in police interrogations. Generally the questionee is some combination of: a juvenile, foreigner, non-English speaker, mentally ill, or mentally disabled.

Do you really expect a 14 year old to stand up to a police officer and invoke his right to be silent? What about a mental patient? Do you know how to invoke your right to not speak in a foreign language?

The Government is fully capable of getting convictions in cases when there is no confession. But for some reason, the confession is the gold standard. Frankly, I think interrogations are abused all too often.

Brock
06-02-2010, 09:20 AM
I think you all need to think about this a little more before jumping on the pro-interrogator bandwaggon.

There is a serious problem in this country right now with false confessions in police interrogations. Generally the questionee is some combination of: a juvenile, foreigner, non-English speaker, mentally ill, or mentally disabled.

Do you really expect a 14 year old to stand up to a police officer and invoke his right to be silent? What about a mental patient? Do you know how to invoke your right to not speak in a foreign language?

The Government is fully capable of getting convictions in cases when there is no confession. But for some reason, the confession is the gold standard. Frankly, I think interrogations are abused all too often.

I'm not on anybody's bandwagon. I'm just trying to figure out how you invoke your right to remain silent and expect them to stop asking questions if you don't tell them so. You may as well complain that you have to actually ask for an attorney while you're at it.

Hydrae
06-02-2010, 09:43 AM
I haven't seen an answer yet to the question of whether invoking your right to silence ends questioning by the police.

I have always taken the right to silence to simply mean they can not coerce you to answer a question, not as a means to end questioning. :shrug:

banyon
06-02-2010, 03:15 PM
I'm not on anybody's bandwagon. I'm just trying to figure out how you invoke your right to remain silent and expect them to stop asking questions if you don't tell them so. You may as well complain that you have to actually ask for an attorney while you're at it.

I think this is a reasonable point in favor of the decision. Otherwise, there is no guidance on when police should stop the questioning.

I guess the alternative approach would be to insist on a waiver before you conducted any questioning.

banyon
06-02-2010, 03:16 PM
I haven't seen an answer yet to the question of whether invoking your right to silence ends questioning by the police.

I have always taken the right to silence to simply mean they can not coerce you to answer a question, not as a means to end questioning. :shrug:

Yes it does. If police continue to question you and you answer, then that evidence and any following from it are excluded from your case.

blaise
06-02-2010, 03:25 PM
When they Mirandize you don't they say "do you understand these rights?" If you say you understand them and then speak anyway then I would assume you waived your right to remain silent. It seems to me that they're just saying you can't say you understand your right to remain silent, or not answer that you understand, then answer questions and afterwards say, 'I wanted to be silent'. I think they're doing it so cops aren't supposed to guess that you want to be silent.
They're doing it so you can't go "I understand my rights" and then talk anyway and then try to have what you said ruled inadmissable.

ClevelandBronco
06-02-2010, 04:08 PM
When they Mirandize you don't they say "do you understand these rights?" If you say you understand them and then speak anyway then I would assume you waived your right to remain silent. It seems to me that they're just saying you can't say you understand your right to remain silent, or not answer that you understand, then answer questions and afterwards say, 'I wanted to be silent'. I think they're doing it so cops aren't supposed to guess that you want to be silent.
They're doing it so you can't go "I understand my rights" and then talk anyway and then try to have what you said ruled inadmissable.

So what's the procedure if an arrested person says he doesn't understand his Miranda rights?

blaise
06-02-2010, 04:13 PM
So what's the procedure if an arrested person says he doesn't understand his Miranda rights?

For what reason? Language? If he can understand the questions being asked of him enough to respond he can understand his rights.

banyon
06-02-2010, 04:14 PM
So what's the procedure if an arrested person says he doesn't understand his Miranda rights?

They've been so well engrained into our public social consciousness through crime TV shows that I don't think anyone will ever claim that unless they have a severe mental handicap, in which case they probably aren't competent to stand trial anyway.

But, I would tell officers to go slow, read it again. If they are native spanish speakers we always grab one of our bilingual officers to do the interview.

ClevelandBronco
06-02-2010, 04:18 PM
They've been so well engrained into our public social consciousness through crime TV shows that I don't think anyone will ever claim that unless they have a severe mental handicap, in which case they probably aren't competent to stand trial anyway.

But, I would tell officers to go slow, read it again. If they are native spanish speakers we always grab one of our bilingual officers to do the interview.

I'd be tempted to claim not to understand just to throw some sand in the gears. I can't see what the downside could be.

banyon
06-02-2010, 04:20 PM
I'd be tempted to claim not to understand just to throw some sand in the gears. I can't see what the downside could be.

If you did it unconvincingly (and subsequently answered questions), then jurors watching it might conclude you were lying.

blaise
06-02-2010, 04:22 PM
I'd be tempted to claim not to understand just to throw some sand in the gears. I can't see what the downside could be.

You could do that with or without this ruling. I don't see why this ruling would matter for that.

ClevelandBronco
06-02-2010, 04:25 PM
If you did it unconvincingly (and subsequently answered questions), then jurors watching it might conclude you were lying.

There are a fair number of drugs that could be responsible for causing me not to understand. They'd better be prepared to show that I wasn't under the influence of any of them.

ClevelandBronco
06-02-2010, 04:26 PM
You could do that with or without this ruling. I don't see why this ruling would matter for that.

It doesn't.

Please send me a list of questions you'll allow me to ask.

banyon
06-02-2010, 04:28 PM
There are a fair number of drugs that could be responsible for causing me not to understand. They'd better be prepared to show that I wasn't under the influence of any of them.

You're going to explain to jurors you were on drugs and that's going to help them understand why you weren't being deceptive with police?

Anyway, you just asked what the possible downside was, so I think I've shown that a possibility does in fact exist, depending on the circumstances.

ClevelandBronco
06-02-2010, 04:31 PM
You're going to explain to jurors you were on drugs and that's going to help them understand why you weren't being deceptive with police?

Anyway, you just asked what the possible downside was, so I think I've shown that a possibility does in fact exist, depending on the circumstances.

I think perhaps I've muddied the waters, so let me ask my original question another way: If I claim not to understand my rights, are the police allowed to ask me questions anyway?

banyon
06-02-2010, 04:32 PM
I think perhaps I've muddied the waters, so let me ask my original question another way: If I claim not to understand my rights, are the police allowed to ask me questions anyway?

No, because your waiver has to be knowing and voluntary.

blaise
06-02-2010, 04:33 PM
It doesn't.

Please send me a list of questions you'll allow me to ask.

No thank you. I don't think it was unreasonable for me to assume that your post was related to the subject of the thread.

ClevelandBronco
06-02-2010, 04:36 PM
No, because your waiver has to be knowing and voluntary.

That's the way I'm going then.

Not that I've done anything worth arresting me for. Nope, not me. Squeaky clean, I am. Besides, I was never in Kansas.

ClevelandBronco
06-02-2010, 04:37 PM
No thank you. I don't think...

That's enough in this case.

blaise
06-02-2010, 04:38 PM
That's enough in this case.

Yes, I should be more cerebral and look further into your brilliant plan of claiming that I don't understand my rights. It's sure to be the legal strategy that will sweep the nation.

ClevelandBronco
06-02-2010, 04:43 PM
Yes, I should be more cerebral and look further into your brilliant plan of claiming that I don't understand my rights. It's sure to be the legal strategy that will sweep the nation.

Look. I forgot that it was my day to give a shit about your feelings, okay?

blaise
06-02-2010, 04:46 PM
Look. I forgot that it was my day to give a shit about your feelings, okay?

says the guy who got upset and started asking for lists of acceptable questions.

ClevelandBronco
06-02-2010, 04:55 PM
says the guy who got upset and started asking for lists of acceptable questions.

That's called being sarcastically dismissive. It's basically the same as suggesting to a child that he should play in traffic.

blaise
06-02-2010, 05:01 PM
That's called being sarcastically dismissive. It's basically the same as suggesting to a child that he should play in traffic.

Yes, and my posts were clearly far more emotional in nature. And even a child playing in traffic would have enough sense to know that claiming you didn't understand your rights would be pointless and dumb.

ClevelandBronco
06-02-2010, 05:04 PM
Yes, and my posts were clearly far more emotional in nature. And even a child playing in traffic would have enough sense to know that claiming you didn't understand your rights would be pointless and dumb.

Play in traffic.

orange
06-02-2010, 05:30 PM
I just had a stray thought inspired by this thread.

How are police in Arizona going to ask ANYONE EVER about their immigration status now... unless they read them their Miranda Rights first? Since they're now asking "have you committed a misdemeaner?" in effect.

Any of you lawyers have a clue?

ClevelandBronco
06-02-2010, 05:33 PM
I just had a stray thought inspired by this thread.

How are police in Arizona going to ask ANYONE EVER about their immigration status now... unless they read them their Miranda Rights first? Since they're now asking "have you committed a misdemeaner?" in effect.

Any of you lawyers have a clue?

Interesting question. Submit it to blaise for approval.

Baby Lee
06-02-2010, 05:41 PM
I just had a stray thought inspired by this thread.

How are police in Arizona going to ask ANYONE EVER about their immigration status now... unless they read them their Miranda Rights first? Since they're now asking "have you committed a misdemeaner?" in effect.

Any of you lawyers have a clue?

1. misdemeanor.

2. It's a right against self-incrimination, not a right against conversing.

3. Miranda rights don't ripen until a suspect is placed in a custodial situation.

orange
06-02-2010, 05:42 PM
1. misdemeanor.

2. It's a right against self-incrimination, not a right against conversing.

3. Miranda rights don't ripen until a suspect is placed in a custodial situation.

The Arizona law only applies in custodial situations. Now. Since it was amended. At least that's what its supporters claim.

And it's NOT about "conversing"... by any stretch.

And as for "misdemeanor" - so what? It's still self-incrimination.

[edit] Here's something I posted a few days. The points remain relevant even though the topic is a bit different.

Alright, I'll give it a shot... even though experience demonstrates that MY COMPLETELY CORRECT OPINIONS WILL BE IGNORED BY THE HALLELUJAH CHOIR HERE. Some of the open-minded may be interested.

(0.) First off, that player is a pig. I gave up on it. If anyone else is in the same boat, try this:
http://www.youtube.com/watch?v=5cDdXqz22v4&feature=youtu.be The section starts at 2:55.

1. As usual, petegz28 makes an overwrought, overblown, unsupportable claim. HOWEVER, this time he has an excuse - when he posted this thread, his title was written just from memory with nothing to go back and check. Now, though, there IS something to work with. petegz28, I know you can't edit your thread title, but you should correct the OP.

"Federal Law allows Feds to stop ANYONE and ask for immigration papers!!" - Utterly absurd! Not at ALL what she's talking about. The case Muehler vs. Mena concerned a suspect who was being detained during a search for weapons. And NO PAPERS were involved at all. PERIOD.

http://www.law.cornell.edu/supct/html/03-1423.ZS.html

Respondent Mena and others were detained in handcuffs during a search of the premises they occupied. Petitioners were lead members of a police detachment executing a search warrant of these premises for, inter alia, deadly weapons and evidence of gang membership. Mena sued the officers under 42 U.S.C. 1983 and the District Court found in her favor. The Ninth Circuit affirmed (the decision I'm quoting overruled the Ninth Circuit), holding that the use of handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers’ questioning of Mena about her immigration status during the detention constituted an independent Fourth Amendment violation.

2. I see two errors in Ms. Kelly's reasoning. First the technical one. The MvM decision holds that:

2. The officers’ questioning of Mena about her immigration status during her detention did not violate her Fourth Amendment rights. The Ninth Circuit’s holding to the contrary appears premised on the assumption that the officers were required to have independent reasonable suspicion in order to so question Mena. However, this Court has “held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434. Because Mena’s initial detention was lawful and the Ninth Circuit did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment, and, therefore, no additional Fourth Amendment justification for inquiring about Mena’s immigration status was required. Cf. Illinois v. Caballes, 543 U.S. ___ , ___ (slip op., at 2—4). Pp. 7—8.

Quite simply, the AZ statute calls for MUCH MORE than mere police questioning. The statute:

B. For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c).

and:

H. A person who is a legal resident of this state may bring an action in superior court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws, including 8 United States Code sections 1373 and 1644, to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than one thousand five hundred dollars and not more than five thousand dollars for each day that the policy has remained in effect after the filing of an action pursuant to this subsection.

That is, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person which must go to the full extent permitted by federal law.

This is much more than merely asking the detainee his immigration status. And so all the extra requirements in the statute are necessary... and challengeable. Which brings us to...

3. Ms. Kelly's other error is a tactical one. She has GUESSED at what the other side's argument is going to be. Instead of actually reading the complaints. Ironic, isn't it. :hmmm:

And I believe she has guessed wrongly. I assume the FIVE plaintiffs (and counting) have reasonably competent lawyers. And I assume the Justice Department which is examining it has reasonably competent lawyers. All those lawyers are certainly at least as competent as me, a complete layman. So when O'Reilly and Kelly wonder "Why? Why would they do this?" the answer is obvious - they're not going to base their cases - real or potential - on "mere questioning."

Baby Lee
06-02-2010, 05:58 PM
The Arizona law only applies in custodial situations. Now. Since it was amended. At least that's what its supporters claim.

And it's NOT about "conversing"... by any stretch.

And as for "misdemeanor" - so what? It's still self-incrimination.


1. "B. For any lawful stop, detention or arrest." A lawful stop or roadside detention doesn't rise to a custodial situation until it escalates [google "Terry Stops"].

2. By using the term 'conversing' I was trying to elucidate the difference between a right against incriminating yourself and a non-existent right to refuse any interaction with law enforcement.

3. I wasn't downplaying the legal status of misdemeanors, I was promoting the proper spelling of the term. ;)

banyon
06-02-2010, 07:35 PM
1. "B. For any lawful stop, detention or arrest." A lawful stop or roadside detention doesn't rise to a custodial situation until it escalates [google "Terry Stops"].

2. By using the term 'conversing' I was trying to elucidate the difference between a right against incriminating yourself and a non-existent right to refuse any interaction with law enforcement.

3. I wasn't downplaying the legal status of misdemeanors, I was promoting the proper spelling of the term. ;)

I concur with this reading of the question.

orange
07-11-2010, 12:29 PM
Arizona's State Bill 1070 that passed earlier this year, is poised to become law July 29, 2010, and continues to divide the nation as new concerns continue to come to light. Specifically, experts fear that cost and basic Miranda rights raise issues about the enforceability of the new law. By making an immigration violation a crime, experts argue that arrests for immigration violations would now require that suspects are read their Miranda rights, including the right to remain silent. Additionally, suspects who cannot present ID are not eligible only to be cited; they must be taken into custody.

These procedural obligations mean that persons affected under the law cannot simply be turned over to federal immigration authorities. The state must Mirandize, take into custody and charge those whom officers determine to be in the U.S. illegally. Given the high costs associated with operating county jails, experts foresee great expense to the state in housing and processing those charged under the law. Where officers were formerly able to hand off suspects to federal agencies, the state law's new requirements makes Arizona responsible for processing its own cases. With lesser federal involvement in the early stages, there is legitimate concern that the state will be overwhelmed by these cases.

http://immigration.visanow.com/blog/bid/42656/Arizona-s-SB-1070-Immigration-Bill-Warrants-Miranda-Rights

... which is basically pulled from a detailed article here: http://www.azcentral.com/news/election/azelections/articles/2010/06/23/20100623arizona-immigration-law-miranda-rights.html

That big article mentions Rick Romley:

Interim Maricopa County Attorney Rick Romley's office recently conducted a legal analysis that questioned the practical application of the law and whether effective prosecution is possible under its provisions.

This is the result Romley came up with:

http://www.myfoxphoenix.com/dpp/news/justice/prosecution-guidelines-7-8-2010

Saul Good
07-11-2010, 12:34 PM
Arizona's State Bill 1070 that passed earlier this year, is poised to become law July 29, 2010, and continues to divide the nation as new concerns continue to come to light. Specifically, experts fear that cost and basic Miranda rights raise issues about the enforceability of the new law. By making an immigration violation a crime, experts argue that arrests for immigration violations would now require that suspects are read their Miranda rights, including the right to remain silent. Additionally, suspects who cannot present ID are not eligible only to be cited; they must be taken into custody.

These procedural obligations mean that persons affected under the law cannot simply be turned over to federal immigration authorities. The state must Mirandize, take into custody and charge those whom officers determine to be in the U.S. illegally. Given the high costs associated with operating county jails, experts foresee great expense to the state in housing and processing those charged under the law. Where officers were formerly able to hand off suspects to federal agencies, the state law's new requirements makes Arizona responsible for processing its own cases. With lesser federal involvement in the early stages, there is legitimate concern that the state will be overwhelmed by these cases.

http://immigration.visanow.com/blog/bid/42656/Arizona-s-SB-1070-Immigration-Bill-Warrants-Miranda-Rights

... which is basically pulled from a detailed article here: http://www.azcentral.com/news/election/azelections/articles/2010/06/23/20100623arizona-immigration-law-miranda-rights.html

That big article mentions Rick Romley:

Interim Maricopa County Attorney Rick Romley's office recently conducted a legal analysis that questioned the practical application of the law and whether effective prosecution is possible under its provisions.

This is the result Romley came up with:

http://www.myfoxphoenix.com/dpp/news/justice/prosecution-guidelines-7-8-2010

When a car is stopped at a DUI checkpoint, do the police read the driver his Miranda rights before they ask if the driver has been drinking? Of course not. Why would this be any different?

It wouldn't, but keep grasping at straws.

orange
07-11-2010, 12:40 PM
When a car is stopped at a DUI checkpoint, do the police read the driver his Miranda rights before they ask if the driver has been drinking? Of course not. Why would this be any different?

It wouldn't, but keep grasping at straws.

IMPLIED CONSENT

You can look it up, but basically when you get your driver's license, you consent to sobriety tests, etc.


[edit] http://en.wikipedia.org/wiki/Implied_consent

Saul Good
07-11-2010, 12:43 PM
IMPLIED CONSENT

You can look it up, but basically when you get your driver's license, you consent to sobriety tests, etc.

So you're suggesting that they only ask the question after the driver has given the officer a valid driver's license? After all, if the driver doesn't have a valid license, there can be no implied consent.

orange
07-11-2010, 12:45 PM
So you're suggesting that they only ask the question after the driver has given the officer a valid driver's license? After all, if the driver doesn't have a valid license, there can be no implied consent.

No - your presence in a car on the public road is enough.

You know, you can refuse to answer the questions or take the sobriety tests. They'll just arrest you; but they're not going to hold a gun to your head and make you walk that line.

Saul Good
07-11-2010, 12:52 PM
No - your presence in a car on the public road is enough.

You know, you can refuse to answer the questions or take the sobriety tests. They'll just arrest you; but they're not going to hold a gun to your head and make you walk that line.

Then couldn't the same be said for being in the US legally? I would think that the concept of implied consent would apply in either case equally.

orange
07-11-2010, 12:54 PM
It wouldn't, but keep grasping at straws.

P.S. That image I attached up there in #52.

That is an order from the Maricopa County Attorney instructing Maricopa County law enforcement officers to Mirandize people before asking them about their immigration status.

I'M not inventing this.

And YOU are a buffoon.

Saul Good
07-11-2010, 01:05 PM
P.S. That image I attached up there in #52.

That is an order from the Maricopa County Attorney instructing Maricopa County law enforcement officers to Mirandize people before asking them about their immigration status.

I'M not inventing this.

And YOU are a buffoon.

So I guess they are covering all of their bases with this law and making sure that everybody knows their rights. Sounds like there's nothing to worry about in this well-thought-out piece of legislation and it's implementation.

go bowe
07-11-2010, 03:15 PM
So I guess they are covering all of their bases with this law and making sure that everybody knows their rights. Sounds like there's nothing to worry about in this well-thought-out piece of legislation and it's implementation.well, except for that pesky preemption thingy...

Saul Good
07-11-2010, 03:36 PM
well, except for that pesky preemption thingy...

Reasonable Suspicion

banyon
07-11-2010, 05:08 PM
Arizona's State Bill 1070 that passed earlier this year, is poised to become law July 29, 2010, and continues to divide the nation as new concerns continue to come to light. Specifically, experts fear that cost and basic Miranda rights raise issues about the enforceability of the new law. By making an immigration violation a crime, experts argue that arrests for immigration violations would now require that suspects are read their Miranda rights, including the right to remain silent. Additionally, suspects who cannot present ID are not eligible only to be cited; they must be taken into custody.

These procedural obligations mean that persons affected under the law cannot simply be turned over to federal immigration authorities. The state must Mirandize, take into custody and charge those whom officers determine to be in the U.S. illegally. Given the high costs associated with operating county jails, experts foresee great expense to the state in housing and processing those charged under the law. Where officers were formerly able to hand off suspects to federal agencies, the state law's new requirements makes Arizona responsible for processing its own cases. With lesser federal involvement in the early stages, there is legitimate concern that the state will be overwhelmed by these cases.

http://immigration.visanow.com/blog/bid/42656/Arizona-s-SB-1070-Immigration-Bill-Warrants-Miranda-Rights

... which is basically pulled from a detailed article here: http://www.azcentral.com/news/election/azelections/articles/2010/06/23/20100623arizona-immigration-law-miranda-rights.html

That big article mentions Rick Romley:

Interim Maricopa County Attorney Rick Romley's office recently conducted a legal analysis that questioned the practical application of the law and whether effective prosecution is possible under its provisions.

This is the result Romley came up with:

http://www.myfoxphoenix.com/dpp/news/justice/prosecution-guidelines-7-8-2010

I think he's being overly cautious, which is fine. There were 3 decisions altering Miranda in just the last year holding that 1) you can requestion someone 2 weeks after they invoke their right to remain silent 2) you have to speak up to invoke your right to remain silent, and 3) Miranda doesn't have to be said any particular way, just telling them they don't have to answer questions and they can have a lawyer anytime they want is good enough. Despite these decisions, we told our local LEO's to just keep doing things the same. No point in re-inventing the wheel to make it sloppier.

Similarly, I think that he is asking them to go well beyond the legal minimum requirements in anticipation of changing caselaw or attitudes.

Really, the AZ law doesn't change anything with reference to Miranda. It requires you to be arresting them for a separate offense in the first place, and once they are in custody, they should be read miranda at that point anyway, prior to "step 2" where you start in with the immigration inquiry. Custody+ questioning anytime usually requires Miranda.

That being said, some of the most relevant immigration questions may fall into the "routine booking questions" exception which doesn't require Miranda. You can't house someone in the jail very effectively if you don't figure out where they live, where they are from, or if they speak english. Citizenship status itself may fall into that category.

Plus, Miranda only affects exclusion of evidence in the underlying criminal case. It does not prevent someone here illegally from being deported.

Saul Good
07-11-2010, 07:22 PM
I think he's being overly cautious, which is fine. There were 3 decisions altering Miranda in just the last year holding that 1) you can requestion someone 2 weeks after they invoke their right to remain silent 2) you have to speak up to invoke your right to remain silent, and 3) Miranda doesn't have to be said any particular way, just telling them they don't have to answer questions and they can have a lawyer anytime they want is good enough. Despite these decisions, we told our local LEO's to just keep doing things the same. No point in re-inventing the wheel to make it sloppier.

Similarly, I think that he is asking them to go well beyond the legal minimum requirements in anticipation of changing caselaw or attitudes.

Really, the AZ law doesn't change anything with reference to Miranda. It requires you to be arresting them for a separate offense in the first place, and once they are in custody, they should be read miranda at that point anyway, prior to "step 2" where you start in with the immigration inquiry. Custody+ questioning anytime usually requires Miranda.

That being said, some of the most relevant immigration questions may fall into the "routine booking questions" exception which doesn't require Miranda. You can't house someone in the jail very effectively if you don't figure out where they live, where they are from, or if they speak english. Citizenship status itself may fall into that category.

Plus, Miranda only affects exclusion of evidence in the underlying criminal case. It does not prevent someone here illegally from being deported.

This is where orange admits that he was wrong and apologizes for calling me a buffoon.

orange
07-11-2010, 07:46 PM
This is where orange admits that he was wrong and apologizes for calling me a buffoon.

Dream on!


FACTORS WHICH MAY BE CONSIDERED, AMONG OTHERS, IN DEVELOPING REASONABLE SUSPICION OF UNLAWFUL PRESENCE
• Lack of identification (if otherwise required by law)
• Possession of foreign identification
• Flight and/or preparation for flight
• Engaging in evasive maneuvers, in vehicle, on foot, etc.
• Voluntary statements by the person regarding his or her citizenship or unlawful presence
Note that if the person is in custody for purposes of Miranda, he or she may not be questioned about immigration status until after the reading and waiver of Miranda rights.
• Foreign vehicle registration
• Counter-surveillance or lookout activity
• In company of other unlawfully present aliens
• Location, including for example:
A place where unlawfully present aliens are known to congregate looking for work
A location known for human smuggling or known smuggling routes
• Traveling in tandem
• Vehicle is overcrowded or rides heavily
• Passengers in vehicle attempt to hide or avoid detection
• Prior information about the person
• Inability to provide his or her residential address
• Claim of not knowing others in same vehicle or at same location
• Providing inconsistent or illogical information
• Dress
• Demeanor – for example, unusual or unexplained nervousness, erratic behavior, refusal to make eye contact
• Significant difficulty communicating in English

http://agency.azpost.gov/supporting_docs/ArizonaImmigrationStatutesOutline.pdfThose are the OFFICIAL guidelines - for the whole state.


Note that if the person is in custody for purposes of Miranda, he or she may not be questioned about immigration status until after the reading and waiver of Miranda rights.

orange
07-11-2010, 07:52 PM
My question was - and continues to be - what about a non-custodial situation. Can an Arizona policeman EVER ask someone about their immigration status without Miranda?

It would be like asking "Hey, have you committed a crime?" Which I don't think you can do.

For example, you see someone unloading a case of beer from their trunk, you can't ask them "did you steal that?"

Saul Good
07-11-2010, 07:58 PM
Dream on!


FACTORS WHICH MAY BE CONSIDERED, AMONG OTHERS, IN DEVELOPING REASONABLE SUSPICION OF UNLAWFUL PRESENCE
• Lack of identification (if otherwise required by law)
• Possession of foreign identification
• Flight and/or preparation for flight
• Engaging in evasive maneuvers, in vehicle, on foot, etc.
• Voluntary statements by the person regarding his or her citizenship or unlawful presence
Note that if the person is in custody for purposes of Miranda, he or she may not be questioned about immigration status until after the reading and waiver of Miranda rights.
• Foreign vehicle registration
• Counter-surveillance or lookout activity
• In company of other unlawfully present aliens
• Location, including for example:
A place where unlawfully present aliens are known to congregate looking for work
A location known for human smuggling or known smuggling routes
• Traveling in tandem
• Vehicle is overcrowded or rides heavily
• Passengers in vehicle attempt to hide or avoid detection
• Prior information about the person
• Inability to provide his or her residential address
• Claim of not knowing others in same vehicle or at same location
• Providing inconsistent or illogical information
• Dress
• Demeanor – for example, unusual or unexplained nervousness, erratic behavior, refusal to make eye contact
• Significant difficulty communicating in English

http://agency.azpost.gov/supporting_docs/ArizonaImmigrationStatutesOutline.pdfThose are the OFFICIAL guidelines - for the whole state.


Note that if the person is in custody for purposes of Miranda, he or she may not be questioned about immigration status until after the reading and waiver of Miranda rights.

As banyon made abundantly clear, this is a case of the authorities in AZ going out of their way to go above and beyond what is required knowing that their every move is being scrutinized. Picture an illegal driving a car who realizes that a cop has just pulled out behind him. He's probably going to drive 5 mph under the speed limit just to be extra careful because he doesn't want to give the officer any reason to pull him over. It's kind of like that.

Garcia Bronco
07-11-2010, 07:59 PM
My question was - and continues to be - what about a non-custodial situation. Can an Arizona policeman EVER ask someone about their immigration status without Miranda?

It would be like asking "Hey, have you committed a crime?" Which I don't think you can do.

For example, you see someone unloading a case of beer from their trunk, you can't ask them "did you steal that?"

Asking someone their identity and not answering on the right to remain silent doesn't make sense. Again, in Arizona they cannot stop your vechicle based on supposed immigration status. Standing on the corner? They can, but I don't think you can just refuse to identify yourself. They they would just take you for 72 hours until they found out who you were. You have to bare indentification in this country.

Saul Good
07-11-2010, 08:00 PM
My question was - and continues to be - what about a non-custodial situation. Can an Arizona policeman EVER ask someone about their immigration status without Miranda?

It would be like asking "Hey, have you committed a crime?" Which I don't think you can do.

For example, you see someone unloading a case of beer from their trunk, you can't ask them "did you steal that?"

Read orange's post about implied consent.

orange
07-11-2010, 08:02 PM
You have to bare indentification in this country.

No, no you don't.

Been there, done that.

I will post a link for you.

Saul Good
07-11-2010, 08:02 PM
For example, you see someone unloading a case of beer from their trunk, you can't ask them "did you steal that?"

I got an MIP for carrying a case of beer when I was 20 years old. I assure you that I was not read any Miranda rights. I was asked how old I was and to produce ID, though.

orange
07-11-2010, 08:06 PM
I will post a link for you.

Actually Orange is technically right. I went through and read every state statue and none of them say you have to provide an id.

They all say pretty much the same thing..


THIS!

WooWoo


http://www.chiefsplanet.com/BB/showpost.php?p=6770387&postcount=236




I LOVE that thread!

Garcia Bronco
07-11-2010, 08:07 PM
No, no you don't.

Been there, done that.

I will post a link for you.

I just don't see to many situations where it's going to work for you in reality despite legal philosophy

orange
07-11-2010, 08:10 PM
The police state some of you imagine we live in is pretty scary. Thank heavens it's not America.

http://politicalintegritynow.com/wp-content/uploads/2010/05/papers.jpg

orange
07-11-2010, 08:21 PM
Read orange's post about implied consent.

Arizona Revised Statute 28-1321 - Implied Consent


Implied Consent Suspension for Driving Under the Influence

A person who operates a motor vehicle in this state gives consent, subject to section 4-244, paragraph 33 or section 28-1381, 28-1382 or 28-1383, to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or section 4-244, paragraph 33 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state either:
While under the influence of intoxicating liquor or drugs.
If the person is under twenty-one years of age, with spirituous liquor in the person's body.
After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal within a period of eighty-four months, unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal. The violator shall also be informed that:
If the test results show a blood or breath alcohol concentration of 0.08 or more, or if the results show a blood or breath alcohol concentration of 0.04 or more and the violator was driving or in actual physical control of a commercial motor vehicle, the violator's license or permit to drive will be suspended or denied for not less than ninety consecutive days.
The violator's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the violator completes alcohol or other drug screening.
A person who is dead, unconscious or otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent provided by subsection A of this section and the test or tests may be administered, subject to section 4-244, paragraph 33 or section 28-1381, 28-1382 or 28-1383.
If a person under arrest refuses to submit to the test designated by the law enforcement agency as provided in subsection A of this section:
The test shall not be given, except as provided in section 28-1388, subsection E or pursuant to a search warrant.
The law enforcement officer directing the administration of the test shall:
File a certified report of the refusal with the department.
On behalf of the department, serve an order of suspension on the person that is effective fifteen days after the date the order is served.
Require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the person.
If the license or permit is not surrendered, state the reason why it is not surrendered.
If a valid license or permit is surrendered, issue a temporary driving permit that is valid for fifteen days.
Forward the certified report of refusal, a copy of the completed notice of suspension, a copy of any completed temporary permit and any driver license or permit taken into possession under this section to the department within five days after the issuance of the notice of suspension.
The certified report is subject to the penalty for perjury as prescribed by section 28-1561 and shall state all of the following:
The officer's reasonable grounds to believe that the arrested person was driving or in actual physical control of a motor vehicle in this state either:
While under the influence of intoxicating liquor or drugs.
If the person is under twenty-one years of age, with spirituous liquor in the person's body.
The manner in which the person refused to submit to the test or tests.
That the person was advised of the consequences of refusal.
On receipt of the certified report of refusal and a copy of the order of suspension and on the effective date stated on the order, the department shall enter the order of suspension on its records unless a written request for a hearing as provided in this section has been filed by the accused person. If the department receives only the certified report of refusal, the department shall notify the person named in the report in writing sent by mail that:
Fifteen days after the date of issuance of the notice the department will suspend the person's license or permit, driving privilege or nonresident driving privilege.
The department will provide an opportunity for a hearing if the person requests a hearing in writing and the request is received by the department within fifteen days after the notice is sent.
The order of suspension issued by a law enforcement officer or the department under this section shall notify the person that:
The person may submit a written request for a hearing.
The request for a hearing must be received by the department within fifteen days after the date of the notice or the order of suspension will become final.
The affected person's license or permit to drive or right to apply for a license or permit or any nonresident operating privilege will be suspended for twelve months from that date or for two years from that date for a second or subsequent refusal within a period of eighty-four months.
The person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the person completes alcohol or other drug screening.
The order for suspension shall:
Be accompanied by printed forms that are ready to mail to the department and that may be filled out and signed by the person to indicate the person's desire for a hearing.
Advise the person that unless the person has surrendered any driver license or permit issued by this state the person's hearing request will not be accepted, except that the person may certify pursuant to section 28-3170 that the license or permit is lost or destroyed.
On the receipt of a request for a hearing, the department shall set the hearing within thirty days in the county in which the person named in the report resides unless the law enforcement agency filing the certified report of refusal pursuant to subsection D of this section requests at the time of its filing that the hearing be held in the county where the refusal occurred.
A timely request for a hearing stays the suspension until a hearing is held, except that the department shall not return any surrendered license or permit to the person but may issue temporary permits to drive that expire no later than when the department has made its final decision. If the person is a resident without a license or permit or has an expired license or permit, the department may allow the person to apply for a restricted license or permit. If the department determines the person is otherwise entitled to the license or permit, the department shall issue and retain a restricted license or permit subject to this section.
Hearings requested under this section shall be conducted in the same manner and under the same conditions as provided in section 28-3306. For the purposes of this section, the scope of the hearing shall include only the issues of whether:
A law enforcement officer had reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle in this state either:
While under the influence of intoxicating liquor or drugs.
If the person is under twenty-one years of age, with spirituous liquor in the person's body.
The person was placed under arrest.
The person refused to submit to the test.
The person was informed of the consequences of refusal.
If the department determines at the hearing to suspend the affected person's privilege to operate a motor vehicle, the suspension provided in this section is effective fifteen days after giving written notice of the suspension, except that the department may issue or extend a temporary license that expires on the effective date of the suspension. If the person is a resident without a license or permit or has an expired license or permit to operate a motor vehicle in this state, the department shall deny to the person the issuance of a license or permit for a period of twelve months after the order of suspension becomes effective or for a period of two years after the order of suspension becomes effective for a second or subsequent refusal within a period of eighty-four months, and may reinstate the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only if the person completes alcohol or other drug screening.
If the suspension order is sustained after the hearing, a motion for rehearing is not required. Within thirty days after a suspension order is sustained, the affected person may file a petition in the superior court to review the final order of suspension or denial by the department in the same manner provided in section 28-3317. The court shall hear the review of the final order of suspension or denial on an expedited basis.
If the suspension or determination that there should be a denial of issuance is not sustained, the ruling is not admissible in and has no effect on any administrative, civil or criminal court proceeding.
If it has been determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended, the department shall give information either in writing or by electronic means of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.
After completing not less than ninety consecutive days of the period of suspension required by this section and any alcohol or other drug screening that is ordered by the department pursuant to this chapter, a person whose driving privilege is suspended pursuant to this section may apply to the department for a special ignition interlock restricted driver license pursuant to section 28-1401. Unless the certified ignition interlock period is extended by the department pursuant to section 28-1461, a person who is issued a special ignition interlock restricted driver license as provided in this subsection shall maintain a functioning certified ignition interlock device in compliance with this chapter during the remaining period of the suspension prescribed by this section. This subsection does not apply to a person whose driving privilege is suspended for a second or subsequent refusal within a period of eighty-four months or a person who within a period of eighty-four months has been convicted of a second or subsequent violation of article 3 of this chapter or section 4-244, paragraph 33 or an act in another jurisdiction that if committed in this state would be a violation of article 3 of this chapter or section 4-244, paragraph 33.


Now, YOU get to post the "implied consent" law for aliens waiving their Fifth Amendment rights.


ROFL

Saul Good
07-11-2010, 08:34 PM
Implied consent laws include:

o Producing a driver’s license and proof of insurance when asked
o Consenting to blood, urine, or breath tests to determine your blood-alcohol content if requested.
o Performing field sobriety tests if requested.

http://www.impliedconsent.org/impliedconsentlaws.html

Producing a driver's license should just about cover it.

banyon
07-11-2010, 08:55 PM
This is where orange admits that he was wrong and apologizes for calling me a buffoon.

I think you guys are both pretty reasonable posters. Opinionated, but I guess that's why you rub each other the wrong way.

banyon
07-11-2010, 08:59 PM
My question was - and continues to be - what about a non-custodial situation. Can an Arizona policeman EVER ask someone about their immigration status without Miranda?

It would be like asking "Hey, have you committed a crime?" Which I don't think you can do.

For example, you see someone unloading a case of beer from their trunk, you can't ask them "did you steal that?"

Uh, you can't? Why the hell not?

Did you mean if they are being detained you can't ask that?

Saul Good
07-11-2010, 09:03 PM
I think you guys are both pretty reasonable posters. Opinionated, but I guess that's why you rub each other the wrong way.

He doesn't rub me the wrong way. I think he's a solid contributer, one of only a handful who can really make me re-think my position in certain cases. This, however, is not one of those cases. He's way off the mark on this one.

It seems insane to me that people really think that if an officer stops someone for an unrelated violation that an officer who reasonably suspects that a person may be in our country illegally shouldn't be able to ask for identification. I welcome it, as it's a wedge issue that works to the advantage of the Republicans.

Saul Good
07-11-2010, 09:07 PM
Uh, you can't? Why the hell not?

Did you mean if they are being detained you can't ask that?

If there have been 500,000 cases of beer stolen in the area, and an officer pulls over a car that has no license plate, is crammed full of cases of beer, and the driver matches the description of the suspect, I would submit that the officer has reason to suspect that the beer may be stolen. That's just me, though.

orange
07-11-2010, 09:52 PM
Uh, you can't? Why the hell not?

Did you mean if they are being detained you can't ask that?

No, I'm talking about normal day-to-day events. Say I'm unloading my groceries, can a cop just pull up and demand to see my receipt?

You're not seriously suggesting police can ask random passersby if they committed a crime and their answer can be used against them in court?

Let's say, for example, a policeman is breaking up a disturbance on a street corner. There are no arrests imminent, no custodial situation; just keeping the peace. I suggest he CANNOT now inquire about any of the people's immigration status. Or what about a kid who's lost or a cat in a tree or what have you?

[edit] Or, take Saul Good's example right above -with a little modification. If there have been 500,000 cases of beer stolen in the COUNTRY OVER THE COURSE OF THE YEAR, and an officer pulls over a car that has no license plate, is crammed full of cases of beer, and the driver matches the RACE of the suspect. Does that fly?

banyon
07-11-2010, 11:23 PM
No, I'm talking about normal day-to-day events. Say I'm unloading my groceries, can a cop just pull up and demand to see my receipt?

You're not seriously suggesting police can ask random passersby if they committed a crime and their answer can be used against them in court?

Let's say, for example, a policeman is breaking up a disturbance on a street corner. There are no arrests imminent, no custodial situation; just keeping the peace. I suggest he CANNOT now inquire about any of the people's immigration status. Or what about a kid who's lost or a cat in a tree or what have you?

[edit] Or, take Saul Good's example right above -with a little modification. If there have been 500,000 cases of beer stolen in the COUNTRY OVER THE COURSE OF THE YEAR, and an officer pulls over a car that has no license plate, is crammed full of cases of beer, and the driver matches the RACE of the suspect. Does that fly?

As long as you aren't detaining anyone, it's considered a "voluntary encounter". If you don't wish to answer the policeman's question you can say "go to hell" and he must stop questioning unless he has reasonable suspicion of a crime. Absent that though, in a voluntary encounter, they can ask whatever question they want.