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Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

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Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#21

Post by ctdonath »

hga wrote: post #16
bobwaycott wrote: post #13

Earlier quoted context omitted.

1: Am I under arrest? 2. No. 1. Okay, I'm going to walk away now. 2. You can't do that. I'm asking you questions and you are not free to leave. 1. But you just said I am not under arrest. Are you arresting me? 2. No. 1. Okay, I'm going to walk away now. ... [a few iterations later] ... 1 starts to walk away. 2 informs 1 that s/he is not free to go. 1, on the basis that 2 has said s/he is not under arrest, and tired o…

This is needlessly complicated; instead, I offer: 1. Am I free to leave? 2. No. OK, now you've made it clear you are under custodial interrogation (I suppose there are safety exceptions to that), Miranda is invoked according to the Orin Kerr, and you can keep your mouth shut beyond the requirement to give your name in some states.

This.

There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave.

Only question remaining is at what point does the LEO's refusal to say "yes" or "no" constitute one or the other.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#22

Post by saraid216 »

mjn wrote: post #2

This is fairly legal-nerdish, but submitted because it relates pretty directly to some issues in the tech community over when you can (under U.S. law) refuse to give up passwords, and similar issues. It's also worth a read if you're simply an American interested in these issues, because it recaps the current 5th-amendment law quite clearly.

The tech community honestly needs more legal literacy, so I for one encourage this kind of posting. The general level of literacy I've seen is about average for the American public, but we often believe it's much, much higher than that because Internet Principles.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#23

Post by warmwaffles »

cynix wrote: post #20
fleitz wrote: post #5

Earlier quoted context omitted.

Am I under arrest? No? Walk away. Yes? Please read me my rights. Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.

What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?

You need to reiterate it until you elicit an answer

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#24

Post by throwaway10001 »

So you have the right to remain silent...as long as you're abreast of the latest SCOTUS ruling and understand them. In rather words you may need to be a lawyer and no niceties with the cops: am I under arrest? No, adios then.

If they want to arrest you, they'll arrest you anyway.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#25

Post by WildUtah »

devb wrote: post #11
DannoHung wrote: post #6

When will motherfucking Scalia and Thomas just god damned die already?

Not the most sophisticated approach to constitutional law, but they are 77 and 64 respectively. Please consult your local actuarial table.

Thomas and Scalia are on the right side of civil liberties and constitutional issues about a third of the time, anyway. What we really want is to replace someone who's almost always wrong, someone who sides with power and hierarchy and insider influence over the individual whenever he gets the chance. Alito is 63.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#26

Post by rflrob »

DannyBee wrote: post #18
sageikosa wrote: post #12

So we are now in a situation where if I am not under arrest, the things I don't say may be used against me, unless I explicitly assert that I am not waiving my rights as soon as possible.

To be clear: This was always true (legally), and this decision doesn't change this. As long as it was not a custodial interrogation, and you had not been formally charged, your words could be used against you (ignoring other procedural evidence rules for a second) without Miranda or other warnings. The only thing his decision changes is a long-standing open issue of when silence can be offered as proof of guilt.

>> The things I don't say may be used against me

>This was always true

(emphasis mine)

On the other hand, the fact that there was a SCOTUS case about it means that while it may always have been true, it wasn't clear to everyone that it was true.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#27

Post by hga »

ctdonath wrote: post #21
hga wrote: post #16

Earlier quoted context omitted.

This is needlessly complicated; instead, I offer: 1. Am I free to leave? 2. No. OK, now you've made it clear you are under custodial interrogation (I suppose there are safety exceptions to that), Miranda is invoked according to the Orin Kerr, and you can keep your mouth shut beyond the requirement to give your name in some states.

This. There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave. Only question remaining is at…

I say the refusal to answer is an answer; since you are asking the very specific question that reveals if you're under custodial interrogation, a refusal to say "Yes" has to mean "No". I mean, unless you get that yes, you clearly can't leave, right?

Furthermore, one could hope that your refusal to answer his questions with anything other than "Am I free to go?" would not be so easy to construe as this sort of silence signaling guilt.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#28

Post by cynix »

warmwaffles wrote: post #23
cynix wrote: post #20

Earlier quoted context omitted.

What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?

You need to reiterate it until you elicit an answer

Are they legally required to give you an answer? If not, this could go on for hours, and if their intention was to restrict your movement then they've already succeeded.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#29

Post by hga »

warmwaffles wrote: post #23
cynix wrote: post #20

Earlier quoted context omitted.

What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?

You need to reiterate it until you elicit an answer

Exactly. Elsewhere in this sub-thread we discuss it, and I point out a refusal to say "Yes" to the question "Am I free to leave" is a No, you very clearly can't leave until you get a Yes.

Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas

#30

Post by siphor »

WildUtah wrote: post #25
devb wrote: post #11

Earlier quoted context omitted.

Not the most sophisticated approach to constitutional law, but they are 77 and 64 respectively. Please consult your local actuarial table.

Thomas and Scalia are on the right side of civil liberties and constitutional issues about a third of the time, anyway. What we really want is to replace someone who's almost always wrong, someone who sides with power and hierarchy and insider influence over the individual whenever he gets the chance. Alito is 63.

It's pretty ridiculous that they would both overturn Griffin if given the chance. I kind of "understand" their viewpoint but its just wrong and completely erodes the spirit of the fifth amendment. I can't think of a better way to say it though.
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