Police definition of "detain"

RickD427 · Apr 19, 2018

Deanimator said:
No silence can EVER get you in more trouble than running your mouth without benefit of counsel.

I don't know that cop.

I don't know his motivations.

Not only is he allowed to lie to me, he's ENCOURAGED to.

Since I can't trust his word, why on earth would I just open myself up to a vast spectrum of potential criminal liability by speaking without benefit of counsel?

You said it yourself, "An OFFICER can use your silence as evidence of guilt." A COURT can't.

I'd much rather invoke my right to remain silent and trigger an actionable false arrest than to falsely incriminate MYSELF by answering questions without benefit of counsel, the REAL purposes of which I have no idea.

Perhaps the name "Richard Jewell" means nothing to you...

Sir,

You really need to read Salinas. A court can very certainly use silence as evidence of guilt, just as can the officer.

I'm familiar with the Jewell case, just as I'm familiar with many others where someone could easily have dispelled any perception of guilt through simple explanation but chose not to. Those folks needlessly went to jail and stayed there until a diligent detective sorted things out. Pretty much a waste of everyone's time. The system isn't perfect as the Jewell case pointed out, but you had to reach back 22 years to pull out the Jewell case. On any given day, you can pull out hundreds of investigative releases from Los Angeles County were I speak from.

Wisco · Apr 19, 2018

RickD427 said:
Sir,

You really need to read Salinas. A court can very certainly use silence as evidence of guilt, just as can the officer.

I'm familiar with the Jewell case, just as I'm familiar with many others where someone could easily have dispelled any perception of guilt through simple explanation but chose not to. Those folks needlessly went to jail and stayed there until a diligent detective sorted things out. Pretty much a waste of everyone's time. The system isn't perfect as the Jewell case pointed out, but you had to reach back 22 years to pull out the Jewell case. On any given day, you can pull out hundreds of investigative releases from Los Angeles County were I speak from.

That’s not exactly what the Salinas case is. It’s been a while since I read it, but Salinas IIRC was about suspects’ statements prior to Mirandizing. Edit: isn’t there also the part of Salinas where you can invoke your right against self incrimination, but you need to actually invoke that even if you’re not arrested at that point? Either way, the onus is on the state to prove guilt and silence looks bad, but doesn’t overcome reasonable doubt on its own.

Silence is not evidence of guilt, otherwise anyone who remained silent would be found guilty.

Rough example: “When the defendant was asked if he murdered John Smith, the defendant did not speak, therefore it is proved he murdered John Smith.”

Has anyone here heard of that playing out in court and someone being convicted based on invoking silence?

Deanimator · Apr 19, 2018

RickD427 said:
You really need to read Salinas. A court can very certainly use silence as evidence of guilt, just as can the officer.

Invocation of Fifth Amendment protections is NEVER proof of guilt.

A cop MAY use it as justification for detention or arrest, rightfully or wrongfully.

Better to take the ride and beat the rap later.

I don't have the SLIGHTEST idea what that cop is up to, and it is in NO way to my benefit to trust a word he says.

"22 years"? How long ago was Malmedy? Is it no longer a prime example of a war crime? Do these things have an expiration date?

RickD427 · Apr 19, 2018

Deanimator said:
Invocation of Fifth Amendment protections is NEVER proof of guilt.

A cop MAY use it as justification for detention or arrest, rightfully or wrongfully.

Better to take the ride and beat the rap later.

I don't have the SLIGHTEST idea what that cop is up to, and it is in NO way to my benefit to trust a word he says.

"22 years"? How long ago was Malmedy? Is it no longer a prime example of a war crime? Do these things have an expiration date?

OK, I can tell that you still haven't read Salinas. Not much point in continuing this discussion until you do. Salinas bought about a pretty major change in the whole "right to remain silent" thing.

Folks certainly do have the right to remain silent, but there can be adverse consequences for doing so, just as there can be adverse consequences for speaking. Life has its risks.

Wisco · Apr 19, 2018

https://www.oyez.org/cases/2012/12-246

For anyone who wants to read about it. What’s been said here isn’t exactly a neat summary.

Deanimator · Apr 19, 2018

RickD427 said:
Folks certainly do have the right to remain silent, but there can be adverse consequences for doing so, just as there can be adverse consequences for speaking. Life has its risks.

If there's a situation in which not speaking without benefit of counsel is more harmful than running one's mouth without legal representation, I'm unaware of it.

If your F-15 is in flames and breaking up, you could be injured or killed by ejecting. Somehow I doubt that you'd achieve a better outcome by riding the disintegrating aircraft vertically into the ground.

Talking to the cops without benefit of counsel helps the cops, not me. But then I imagine that's the idea.

RPZ · Apr 19, 2018

It seems to me that the right to remain silent is too often associated with "to not self incriminate". It is however, the right to say nothing at all. You can not be compelled to speak whether it is self incriminating or not.

Trunk Monkey · Apr 19, 2018

Spats McGee said:
The whole business about looking at the officer, then his hands, then back at him . . . all of that assumes you get that chance. This is a very quick way to send your day from bad to worse. If the officer tells you you're not free to leave, twice, and you turn to leave, the handcuffs are coming out. If you're lucky, the officer will just tack on an extra charge or two. Fleeing, Obstructing Government Operations, and Refusal to Submit to Arrest all come to mind. If you're unlucky, the officer may think you're either fleeing or reaching for a weapon. That's fairly likely to get you some road rash.

My plan in terms of contact with police that I don't know has always been "be as forgettable as possible." That doesn't mean consent to every search an officer feels like doing, but I'm not going to have that argument on the side of the highway. If an officer wants to search something I feel inappropriate, I'll simply decline & preserve my legal rights for a courtroom challenge.

^^^^^^^^^^^ This is a couple thousand dollars worth of free legal advice READ IT^^^^^^^^^^^^^^^^

AFAIC this is an acedemic question. I haven't had a non consensual interaction with the police in ten years.
If I ever have another non consensual interaction with a cop again I intend to invoke my right to remain silent and say nothing. I also intend to decline any requests to search and ask for a lawyer.

RickD427 · Apr 19, 2018

Wisco said:
That’s not exactly what the Salinas case is. It’s been a while since I read it, but Salinas IIRC was about suspects’ statements prior to Mirandizing. Edit: isn’t there also the part of Salinas where you can invoke your right against self incrimination, but you need to actually invoke that even if you’re not arrested at that point? Either way, the onus is on the state to prove guilt and silence looks bad, but doesn’t overcome reasonable doubt on its own.

Silence is not evidence of guilt, otherwise anyone who remained silent would be found guilty.

Rough example: “When the defendant was asked if he murdered John Smith, the defendant did not speak, therefore it is proved he murdered John Smith.”

Has anyone here heard of that playing out in court and someone being convicted based on invoking silence?

I think that got most of it, and missed a little part of it.

The part that you got was that Salinas only applies pre-Miranda. Once the admonishment has been given to a suspect, you really can't infer silence as indicating guilt. It could equally be the product of admonishment.

In Salinas' interview he became silent when the police questioning became focused on some shotgun shells potentially linked to a murder. The silence does not prove that Salinas did the murder, but the court did consider his silence, along with other evidence that he was connected, in finding him guilty.

RPZ · Apr 19, 2018

RickD427 said:
I think that got most of it, and missed a little part of it.

The part that you got was that Salinas only applies pre-Miranda. Once the admonishment has been given to a suspect, you really can't infer silence as indicating guilt. It could equally be the product of admonishment.

In Salinas' interview he became silent when the police questioning became focused on some shotgun shells potentially linked to a murder. The silence does not prove that Salinas did the murder, but the court did consider his silence, along with other evidence that he was connected, in finding him guilty.

The point at which the admonishment is given does not necessarily define a person's understanding of their right to remain silent, they may have been aware of their rights beforehand. It simply became SOP so that defendants could not say they didn't know, and any spontaneous statements prior could still be used in evidence against them.

Frank Ettin · Apr 19, 2018

RPZ said:
It seems to me that the right to remain silent is too often associated with "to not self incriminate". It is however, the right to say nothing at all. You can not be compelled to speak whether it is self incriminating or not.

How would you know? When's the last time you read the Fifth Amendment? So let's read it together right now (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As the Supreme Court wrote in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 10 A.L.R.3d 974, 36 O.O.2d 237 (1966), at 444 (emphasis added):

...Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination...

As the Supreme Court wrote in Salinas v. Texas, No. 12-246, Supreme Court 2013, at page 4 of the slip opinion (emphasis added):

...Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self-executing" and that a witness who desires its protection "must claim it."...

And someone may be compelled to speak if the possibility of self-incrimination is removed -- such as by a grant of immunity. So a witness who has been granted immunity but continues to decline to speak can be charged with obstruction of justice or, if he's in court, contempt.

The fact that something might "seem to you" doesn't necessarily mean that it is true in real life.

RPZ · Apr 19, 2018

Frank Ettin said:
How would you know? When's the last time you read the Fifth Amendment? So let's read it together right now (emphasis added):

As the Supreme Court wrote in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 10 A.L.R.3d 974, 36 O.O.2d 237 (1966), at 444 (emphasis added):

As the Supreme Court wrote in Salinas v. Texas, No. 12-246, Supreme Court 2013, at page 4 of the slip opinion (emphasis added):

And someone may be compelled to speak if the possibility of self-incrimination is removed -- such as by a grant of immunity. So a witness who has been granted immunity but continues to decline to speak can be charged with obstruction of justice or, if he's in court, contempt.

The fact that something might "seem to you" doesn't necessarily mean that it is true in real life.

You could have added emphasis to; "the prosecution may not use statements, whether exculpatory or inculpatory..."

The Miranda rights version I was trained and worked under specifically included, "... that is to say nothing at all".

Indeed, you can not be compelled to "testify against yourself", and may elect to say nothing at all. A no contest plea is basically a "I am going to remain silent, you prove I'm guilty ... without me".

Obligations to someone who has been granted, and agreed to, immunity do not apply here.

Deanimator · Apr 19, 2018

RPZ said:
Obligations to someone who has been granted, and agreed to, immunity do not apply here.

Precisely.

That cop by the side of the road isn't going to and can't grant you transactional immunity... which is not to say that he won't PRETEND that he can.

RPZ · Apr 19, 2018

And I should have mentioned, what was the intent of the 5th? It certainly was not to make it easier for criminals to walk, or just make it more difficult to convict them.

It was written and accepted by those who acknowledged that anything, any utterence, could be used to convince a jury to convict an innocent person of a crime given the right circumstances.

Frank Ettin · Apr 19, 2018

RPZ said:
...A no contest plea is basically a "I am going to remain silent, you prove I'm guilty ... without me".....

You really need to stop making things up.

A plea of no contest (or nolo contendere) means that you don't intend to contest the charges against you. If a defendant pleads "no contest", the prosecution doesn't have to prove anything. The judge will go ahead and find the defendant guilty and go on to the next step, deciding punishment. It is functionally equivalent to a guilty plea, and a conviction on a plea of no contest goes on the person's record the same as a conviction on a guilty plea would.

The primary advantage of a plea of no contest is that it can't be used as an admission in a civil suit.

RPZ said:
And I should have mentioned, what was the intent of the 5th? It certainly was not to make it easier for criminals to walk, or just make it more difficult to convict them.

It was written and accepted by those who acknowledged that anything, any utterence, could be used to convince a jury to convict an innocent person of a crime given the right circumstances.

You're still making things up.

And the history behind the Fifth Amendment privilege against self-incrimination is actually a good deal more complex and interesting. You might not be interested in this article discussing that, but perhaps others will be.

Trunk Monkey · Apr 20, 2018

RPZ said:
And I should have mentioned, what was the intent of the 5th? It certainly was not to make it easier for criminals to walk, or just make it more difficult to convict them.

It was written and accepted by those who acknowledged that anything, any utterence, could be used to convince a jury to convict an innocent person of a crime given the right circumstances.

Robert H. Jackson is quoted as saying "The Fifth Amendment exists primarily to protect the innocent from unwarranted prosecution."

https://en.m.wikipedia.org/wiki/Robert_H._Jackson

jrmiddleton425 · Apr 20, 2018

The OP seems to be trying to make a legal distinction between "detain" and "restrain" that probably doesn't exist as written law. "Restraint" can be either lawful or unlawful and it basically means to physically stop someone from leaving a given place.

I HAVE, on the other hand, heard "custody," "arrest," and "confinement."

That is to say, you can be cuffed and/or put in the back of a police car ("custody") without being placed under "arrest."

"Confinement" defines a pre-trial or post-trial prisoner.

Old Dog · Apr 20, 2018

Deanimator said:
It's an inherently adversarial relationship. Intelligently treat it as such.

And this is exactly how we got here from there ... because too many citizens now seem to believe that any interaction with law enforcement personnel is adversarial.

If you act toward law enforcement personnel, who are, amazingly enough, simply trying to obtain information to solve crimes or other problems to the benefit of the society, as if they are your personal adversaries, you will obtain exactly the sort of relationship that fits your belief system.

Deanimator · Apr 20, 2018

Old Dog said:
And this is exactly how we got here from there ... because too many citizens now seem to believe that any interaction with law enforcement personnel is adversarial.

If you act toward law enforcement personnel, who are, amazingly enough, simply trying to obtain information to solve crimes or other problems to the benefit of the society, as if they are your personal adversaries, you will obtain exactly the sort of relationship that fits your belief system.

The police created that relationship. Don't tell me I have some contemptible "duty" to pretend they didn't.

Jerry Finnegan wasn't "simply trying to obtain information to solve crimes" when his crew kidnapped a minor. They were "simply trying to obtain information to find more victims".

I don't know what that cop's up to and I haven't the slightest reason to believe it's on the up and up. I've got way too many reasons to believe the contrary.

The police not only have the authority to lie to me, they're encouraged to. And somehow I'm supposed to pretend I don't know that. I'm not in the habit of pretending that threats aren't threats.

I advise everyone to obey the law.

I also advise everyone to protect their own rights. Certainly nobody else will, least of all the police.

Spats McGee · Apr 20, 2018

RPZ said:
Indeed, you can not be compelled to "testify against yourself", and may elect to say nothing at all. A no contest plea is basically a "I am going to remain silent, you prove I'm guilty ... without me".

No. Pleading Not Guilty and not testifying . . . now that's saying "I'm going to remain silent and you (State) prove I'm guilty without me."

Nolo is different. Frank has already and correctly hit the technical points. Here's how I explain it to defendants: "No contest is like telling the court, 'I don't want to say that I'm guilty, but the State just might have some evidence that I am.' "

JohnKSa · Apr 20, 2018

I don't know what that cop's up to and I haven't the slightest reason to believe it's on the up and up. I've got way too many reasons to believe the contrary.

The police not only have the authority to lie to me, they're encouraged to. And somehow I'm supposed to pretend I don't know that. I'm not in the habit of pretending that threats aren't threats.

While it is certainly wise to keep in mind that there are some risks associated with interacting with police and to act accordingly; openly and universally treating LE as threats and always starting out with the assumption that the interaction is not "on the up and up" is extreme and IMO, is much more of a commentary about the citizen in question than it is an indictment or accurate reflection of LE.

There are certainly some bad LEOs out there and there are certainly situations where LE/citizen interactions have gone horribly wrong, but any reasonable analysis will reveal that both of those are, by far, in the tiny minority. Pretending otherwise is roughly similar to honking, slamming on the brakes and swerving away violently every time one encounters another vehicle while driving. It is certainly true that horrible car accidents do occur, but reacting to every car on the road as if it is coming right at you and you must react immediately or die is not rational. The vast, overwhelming majority of times when two vehicles pass near each other on the road, there is no danger at all. Similarly, the vast, overwhelming majority of citizen/LE interactions are benign, or even beneficial.

It's certainly your right to take the approach you describe, I would just advise that you need to be careful lest you allow this attitude to become a self-fulfilling prophecy. When one person in an interaction immediately takes a hard-line adversarial approach to the interaction, it becomes very difficult for the other person to do anything other than behave accordingly. Said another way; if you try really hard to convince someone that you are enemies, you may very well succeed.

Deanimator · Apr 20, 2018

JohnKSa said:
While it is certainly wise to keep in mind that there are some risks associated with interacting with police and to act accordingly; openly and universally treating LE as threats and always starting out with the assumption that the interaction is not "on the up and up" is extreme and IMO, is much more of a commentary about the citizen in question than it is an indictment or accurate reflection of LE.

So what you're saying is that I should just blindly trust that every cop I meet is honest and believes in the Bill of Rights and waive my Constitutional Rights... up 'til the point where I find out he ISN'T honest and DOESN'T believe in the Bill of Rights, by which time it's MUCH too late?

It isn't situationally an adversarial relationship, it's INHERENTLY an adversarial relationship.

On the one hand, you have somebody who is not only empowered to lie to you, but is ENCOURAGED to do so. On the other, you have someone who's smallest UNINTENTIONAL misstatement can be construed as a crime by the first party. And you expect me to just VOLUNTARILY discuss matters with that person who a) is a total stranger of totally unknown and unknowable motivations, b) is trained to deceive, and c) can arrest me for alleged deception? And whom does that benefit... besides HIM? For somebody who grew up in the hometown of Jon Burge, that sure seems like a consummately foolish thing to do.

Not every mushroom is poisonous. But you won't see me walking through the forest, shoveling every mushroom I see into my mouth.

Not every snake in the desert is poisonous. But you won't see me picking up every one I see.

I'm not an expert on mushrooms OR snakes. I leave dealing with them to people paid to know about them.

Unless you've got an Android app that can reliably differentiate a "good" cop from a "bad" one, talking to the cops for any encounter which I didn't initiate (and not required by, or strongly encouraged by law) without benefit of counsel seems like a VERY bad deal for me.

Choctaw · Apr 20, 2018

ka2rzo said:
Lots of good info here!

JeffG,

I certainly agree with the two-pronged test of custody and movement requiring Miranda. But what if I'm cuffed and I start getting questioned? The LEO considers me to be "detained", but I'd sure consider myself "under arrest" or at least not free to leave. That wouldn't trigger Miranda? Just curious.

For Miranda to be triggered you have to be in lawful custody and being asked specific questions about a specific offense. Just because a person is in custody doesn't mean they are entitled to Miranda (unlike on TV where they bad guy is ALWAYS read his rights). If you are under

Deanimator said:
So what you're saying is that I should just blindly trust that every cop I meet is honest and believes in the Bill of Rights and waive my Constitutional Rights... up 'til the point where I find out he ISN'T honest and DOESN'T believe in the Bill of Rights, by which time it's MUCH too late?

It isn't situationally an adversarial relationship, it's INHERENTLY an adversarial relationship.

On the one hand, you have somebody who is not only empowered to lie to you, but is ENCOURAGED to do so. On the other, you have someone who's smallest UNINTENTIONAL misstatement can be construed as a crime by the first party. And you expect me to just VOLUNTARILY discuss matters with that person who a) is a total stranger of totally unknown and unknowable motivations, b) is trained to deceive, and c) can arrest me for alleged deception? And whom does that benefit... besides HIM? For somebody who grew up in the hometown of Jon Burge, that sure seems like a consummately foolish thing to do.

Not every mushroom is poisonous. But you won't see me walking through the forest, shoveling every mushroom I see into my mouth.

Not every snake in the desert is poisonous. But you won't see me picking up every one I see.

I'm not an expert on mushrooms OR snakes. I leave dealing with them to people paid to know about them.

Unless you've got an Android app that can reliably differentiate a "good" cop from a "bad" one, talking to the cops for any encounter which I didn't initiate (and not required by, or strongly encouraged by law) without benefit of counsel seems like a VERY bad deal for me.

And you wonder why some of my colleagues don't trust the public. By the way, two of your mean cops were gunned down while at lunch yesterday. We die, even for people like you.

Old Dog · Apr 20, 2018

Deanimator said:
The police created that relationship. Don't tell me I have some contemptible "duty" to pretend they didn't.

Jerry Finnegan wasn't "simply trying to obtain information to solve crimes" when his crew kidnapped a minor. They were "simply trying to obtain information to find more victims".

I don't know what that cop's up to and I haven't the slightest reason to believe it's on the up and up. I've got way too many reasons to believe the contrary.

The police not only have the authority to lie to me, they're encouraged to. And somehow I'm supposed to pretend I don't know that. I'm not in the habit of pretending that threats aren't threats.

I advise everyone to obey the law.

I also advise everyone to protect their own rights. Certainly nobody else will, least of all the police.

I think there's a couple apt terms that describes "Deanimator's" attitude. Certainly, most here would be offended if posters were to make the sort of comments about a racial group, ethnic group, persons of a certain religion or sexual orientation that he makes about all law enforcement personnel. And make no mistake: He is talking about all law enforcement personnel. Deanimator advocates treating an entire group of people based on the past actions of a very small minority of that group ... And hey, isn't that also "profiling?" Most definitely it falls into the category of stereotyping ...

"A stereotype is a preconceived notion, especially about a group of people. Many stereotypes are racist, sexist, or homophobic. ... Those are stereotypes: commonly held ideas about specific groups. You most often hear about negative stereotypes ... A generalization, usually exaggerated or oversimplified and often offensive, that is used to describe or distinguish a group."

I do find this poster's comments offensive, totally simplistic and usually not worthy of a response, but when he states that "On the one hand, you have somebody who is not only empowered to lie to you, but is ENCOURAGED to do so ..." he is making a very wrong and dangerous assertion.

As a couple of us have noted, and JohnKSa said it well:

JohnKSa said:
When one person in an interaction immediately takes a hard-line adversarial approach to the interaction, it becomes very difficult for the other person to do anything other than behave accordingly. Said another way; if you try really hard to convince someone that you are enemies, you may very well succeed.

Spats McGee · Apr 20, 2018

Deanimator said:
So what you're saying is that I should just blindly trust that every cop I meet is honest and believes in the Bill of Rights and waive my Constitutional Rights... up 'til the point where I find out he ISN'T honest and DOESN'T believe in the Bill of Rights, by which time it's MUCH too late?

I don't think that's what he was saying at all. Maybe I overlooked it, but I didn't see where JohnKSa said anything about blind trust or waiving constitutional rights.

Police definition of "detain"

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