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.
Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
11–20 of 63 posts
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#12So 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.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#13Earlier quoted context omitted.
The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.
How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
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 of the back and forth, begins to walk away.
2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc.
1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave).
... [several rapidly escalating iterations later ...]
1 attempts to walk away.
2 physically apprehends 1 in some fashion and orders 1 to stop.
1 continues to try to leave.
2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#14So 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.
> ... unless I explicitly assert that I am not waiving my rights as soon as possible.
... and it is determined that I am in a situation in which I am deemed lawfully allowed to have asserted said rights.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#15Earlier quoted context omitted.
The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.
This could be nitpicking an abbreviated binary choice. The usual advice is to ask if you are free to leave. If the answer is no, then you know you're being detained and can act accordingly.
Indeed, asking if you are free to leave is the better question. Not so much an abbreviated binary choice, but more a response to the suggestion as given.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#16Earlier quoted context omitted.
How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
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.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#17Earlier 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.
Again, as specified elsewhere, I am responding to the parent's original suggestion to ask if one is under arrest, and the question of how I anticipate the situation getting out of hand.
Needlessly complicated? I suppose that's a matter of interpretation when you're on the receiving end of a power imbalance and are wanting to both go on your way and assert and protect your rights.
Yes, the shorter path is to ask if one is free to leave, and then respond accordingly. And yet still, it is not incomprehensible that an officer might respond with something more complex than a simple "No" when asked if you are free to leave. Say, something along the lines of, "Yes, as soon as you answer a couple questions." This is much closer to a "no", but still legally debatable (especially within the context of this decision) whether or not you are in a situation in which you may rightfully assert your rights.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#18So 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.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#19Earlier 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.
Again, as specified elsewhere, I am responding to the parent's original suggestion to ask if one is under arrest, and the question of how I anticipate the situation getting out of hand. Needlessly complicated? I suppose that's a matter of interpretation when you're on the receiving end of a power imbalance and are wanting to both go on your way and assert and protect your rights. Yes, the shorter path is to ask if on…
Sure, he could say that, but it still is a "No", you can declare it as as such, and unless he's going to ask you if you're armed or the like he's then made it crystal clear you're now in an custodial interrogation. I really doubt it would be subject to much debate, but then again I really doubt you and he would provide the same accounting of the event unless it was being recorded and he knows it.
Re: Do You Have A Right to Remain Silent? Thoughts on Salinas v. Texas
#20The debate mental-chess that the lay-person needs to understand is, quite honestly, terrifying. So now, if a police officer asks you an incriminating question off the cuff, and you say "I would like a lawyer" or "I invoke the 5th" or even say nothing, without a legal background you may find yourself in a situation where what was said / wasn't said can be used against you? This can't be what was originally intended by…
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?