Police definition of "detain"

[Deanimator]

Frank,

I understand the case and the Courts rulings. Four other Justices also had problems with the lower Courts decision. The fact is because the subject did not "expressly invoke the Fifth Amendment privilege against self-incrimination" is a elitist opinion. Why did the Court leave unanswered what exact phrase or words the accused should use to invoke their right to self-incrimination? By not doing so it allows lower courts wide leeway in deciding if the accused is entitled to use the 5th Amendment.

Since low educated and low income people cannot afford good lawyers this is also a excellent example of why so many lower educated and minorities are convicted and serve time in prison.

Where is the average person educated in such fine points of the law? Certainly not in public school system.

And let me point out the irony of police saying "There are too many laws for the police to know" when they violate someone's rights or make up non-existant "law" out of whole cloth.

 

[RPZ]

Frank,

I understand the case and the Courts rulings. Four other Justices also had problems with the lower Courts decision. The fact is because the subject did not "expressly invoke the Fifth Amendment privilege against self-incrimination" is a elitist opinion. Why did the Court leave unanswered what exact phrase or words the accused should use to invoke their right to self-incrimination? By not doing so it allows lower courts wide leeway in deciding if the accused is entitled to use the 5th Amendment.

Since low educated and low income people cannot afford good lawyers this is also a excellent example of why so many lower educated and minorities are convicted and serve time in prison.

Where is the average person educated in such fine points of the law? Certainly not in public school system.

Furthermore, and a deeper question; rights are something that have to be "invoked"?? The wording of the Bill of Rights implies that these rights are present. They are there the moment you are born. Miranda precipitated a recognition of the need to inform the ignorant.

When you chose to speak, you are not really "waiving your right" - it is omnipresent. Hence you can "stop the questioning at any time".

 

[Kleanbore]

Furthermore, and a deeper question; rights are something that have to be "invoked"?? The wording of the Bill of Rights implies that these rights are present. They are there the moment you are born. Miranda precipitated a recognition of the need to inform the ignorant.

When you chose to speak, you are not really "waiving your right" - it is omnipresent. Hence you can "stop the questioning at any time".

I think the real issue is what can be lawfully admitted as evidence, and under what what circumstances.

Salinas v. Texas established that in some circumstances, the fact of a defendant's silence can be admitted as evidence.

 

[RPZ]

I think the real issue is what can be lawfully admitted as evidence, and under what what circumstances.

Salinas v. Texas established that in some circumstances, the fact of a defendant's silence can be admitted as evidence.

Yes, but you can not separate what is lawful and an omnipresent right that is the foundational underpinning of what is lawful and what is not.

If the excercising of a right is skewed as "incriminating conduct" (Salinas) that pretty much makes a mockery out of what is a fundamental right.

I am sure those who penned the Bill of Rights and supported them would be appalled at the idea that anyone had to "invoke" their rights in a confrontation with a civil servant for it to have legal force, and at the idea that silence was "incriminating conduct".

Of course what I say or think doesn't matter. But that is how far down the road of a police state and a corrupt judiciary we have come. When black is white, and white is black - if they say so.

 

[RPZ]

A further question on the topic could run like this; what is the difference in definition between "detain", and "constructive arrest" - and "actual arrest"?

 

[RickD427]

A further question on the topic could run like this; what is the difference in definition between "detain", and "constructive arrest" - and "actual arrest"?

RPZ,

At the risk of over-simplifying a lot of case law, here is the Reader's Digest version:

Detention - A restriction on a person's freedoms that is founded upon the reasonable suspicion that criminal activity is afoot. A detention must be reasonable both in it's duration and scope. Please check out the U.S. Supreme Court's opinion in Terry v Ohio for a good treatment of the subject. The practical objective of a detention is to ascertain if there is sufficient evidence of a crime to make an arrest.

Constructive Arrest - This term, along with it's cousin "de facto arrest", have been used to describe conditions where a detention has extended beyond it's permitted limits, and where there was not "probable cause" for a legally proper arrest. Please check out the U.S. Supreme Court's opinion in Florida v Royer for a good treatment of this subject.

Arrest - The taking of a person into custody to answer for a criminal charge. An arrest requires that the "Probable Cause" standard be met.​

Remember that "Reasonable Suspicion" is a much lower standard of certainty than is "Probable Cause." The idea behind a Terry-based detention is that the LEO has a reasonable opportunity to conduct a field investigation. If that investigation produces enough additional evidence to meet the higher "Probable Cause" standard, then an arrest is made. If the LEO is unable to meet that standard within the limits of the Terry-based detention, then it's time to wish the subject a good day and move on.

The cases that I'm aware of where a court found that a detention had turned into a "Constructive Arrest" all have involved circumstances where a Terry-based detention exceeded the parameters of what the court found to be "reasonable."

 

[Frank Ettin]

My thanks for all the interesting and informative feedback, esp. Spats and RickD. Here's a little background for my reasoning and some animosity towards "local yokels"....

While those are very nice stories, they really don't mean much -- except perhaps to help you rationalize your prejudices.

First, anecdotes aren't data. Second we're only hearing your side of things. Third your view of the events is colored by your emotional involvement. Fourth, at least one incident occurred 30 years ago, so we'd need to rely on your memory.

Your stories might explain your animus, but they can't establish that your animus has a legitimate, objective basis.

Frank,

I understand the case and the Courts rulings. Four other Justices also had problems with the lower Courts decision....

Nonetheless, the dissent is still just the dissent and not the ruling of the Court

...Why did the Court leave unanswered what exact phrase or words the accused should use to invoke their right to self-incrimination?....

Because that was outside scope of the matter before the Court

BTW, you have glossed over the short concurring opinion of Justices Scalia and Thomas. They would have gone much further than the plurality (133 S.Ct. 2174, at 2184-2185, emphasis added):

Justice THOMAS, with whom Justice SCALIA joins, concurring in the judgment.

We granted certiorari to decide whether the Fifth Amendment privilege against compulsory self-incrimination prohibits a prosecutor from using a defendant's pre-custodial silence as evidence of his guilt. The plurality avoids reaching that question and instead concludes that Salinas' Fifth Amendment claim fails because he did not expressly invoke the privilege. Ante, at 2178 – 2179. I think there is a simpler way to resolve this case. In my view, Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony.

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant's failure to testify. Id., at 614, 85 S.Ct. 1229. The Court reasoned that such comments, and any adverse inferences drawn from them, are a “penalty” imposed on the defendant's exercise of his Fifth Amendment privilege. Ibid. Salinas argues that we should extend Griffin 's no-adverse-inference rule to a defendant's silence during a precustodial interview. I have previously explained that the Court's decision in Griffin “lacks foundation in the Constitution's text, history, or logic” and should not be extended. See Mitchell v. United States, 526 U.S. 314, 341, 19 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (dissenting opinion). I adhere to that view today.

Griffin is impossible to square with the text of the Fifth Amendment, which provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” A defendant is not “compelled ... to be a witness against himself” simply because a jury has been told that it may draw an adverse inference from his silence. See Mitchell, supra, at 331,119 S.Ct. 1307 (SCALIA, J., dissenting) (“[T]he threat of an adverse inference does not ‘compel’ anyone to testify.... Indeed, I imagine that in most instances, a guilty defendant would choose to remain silent despite the adverse inference, on the theory that it would do him less damage than his cross-examined testimony”); Carter v. Kentucky, 450 U.S. 288, 306, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) (Powell, J., concurring) (“[N]othing in the [Self–Incrimination] Clause requires that jurors not draw logical inferences when a defendant chooses not to explain incriminating circumstances”).

Nor does the history of the Fifth Amendment support Griffin. At the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so. See Mitchell, supra, at 332, 119 S.Ct. 1307 (SCALIA, J., dissenting); Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self–Incrimination 204 (R. Hemholz et al. eds. 1997). Given Griffin 's indefensible foundation, I would not extend it to a defendant's silence during a precustodial interview. I agree with the plurality that Salinas' Fifth Amendment claim fails and, therefore, concur in the judgment.

So our most conservative, most "originalist" Justices would read the Fifth Amendment privilege against self incrimination, based on the language, even more narrowly than the plurality -- and certainly more narrowly than you. But what part of "nor shall be compelled in any criminal case to be a witness against himself" don't you understand.

....When you chose to speak, you are not really "waiving your right" - it is omnipresent. Hence you can "stop the questioning at any time".

Cite legal authority for that claim.

You might think so, but what you think is irrelevant. What matters is what the courts think.

Yes, but you can not separate what is lawful and an omnipresent right that is the foundational underpinning of what is lawful and what is not.

If the excercising of a right is skewed as "incriminating conduct" (Salinas) that pretty much makes a mockery out of what is a fundamental right.....

More of your drivel. Do you have legal authority to support this contention. If not you're just making stuff up again.

We're talking about what the law is, not what you'd like it to be.

....I am sure those who penned the Bill of Rights and supported them would be appalled at the idea that anyone had to "invoke" their rights....

Your being sure means exactly squat. Do you have any actual evidence to support your conjecture?

Once again it looks like you're making stuff up.

....Of course what I say or think doesn't matter....

That's about the only accurate statement you've made in this thread.

....But that is how far down the road of a police state and a corrupt judiciary we have come. When black is white, and white is black - if they say so.

You might think so, but your believing this doesn't make it true.

Often folks who really don't understand things will resort to that sort of "magical thinking" to explain what to them is unexplainable. So folks who don't understand how the solar system works attribute a solar eclipse to a dragon swallowing the sun, or some such thing. Similarly to some folks court decisions they don't like, or election results they don't like, or legislative actions they don't like must be because things are corrupt, or things are rigged, people are dishonest, or there's some mysterious conspiracy behind it all.

And sometimes one's notion of what's corrupt is heavily influenced by whose ox is gored. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

 

[BSA1]

Of course what I say or think doesn't matter. But that is how far down the road of a police state and a corrupt judiciary we have come. When black is white, and white is black - if they say so.

This is in a nutshell.

The United States is well down the road to being a Police State. The Right to Bear and Keep Arms, Search and Seizure and, now, Self-Incrimination are being seriously eroded. The image of Police has undergone a major change. No longer are officers wearing a blue uniform with a shiny badge, Sam Browne duty belt and a hat. Now they wear BDU style pants, tactical load bearing vest with lots of pockets stuffed with gear. a cloth badge sewed on somewhere, high capacity semi-automatic pistol, black combat style boots. We make fun of the "Mall Ninjas" yet all they are doing is copying the Police. (For the record I wear black BDU pants as a part of my uniform and they are very comfortable and durable).

The relationship between the Police and the general public has eroded so far that both groups are video taping their encounters.

One gets the impression from Frank and other posters that refusing to talk to the Police will result in you being convicted of a crime. However Massad Ayoob, whose opinion is held in such high regard on THR, cautions people to be careful what they say to the Police and he even offers seminars on what to say to the Police, what questions not to answer and how to interact with them.

If Salinas vs. Texas is as widely applied as is being suggested here then Ayoob is offering very bad legal advice.

The O.P.'s original question is about what is the definition of being "detain" by the Police. The answer is there really isn't one. It is up to the Courts to decide in each individual case and often a expensive appeals process. I spent one entire semester in College studying just the 4th Amendment and reading a very thick law book along with taking a Master degree class and know from that there is not a clear cut legal definition of "detain". In fact I know a couple of Law Professors and at least one very respected Judge that believe that once the handcuffs have being applied and you are not free to leave it is an arrest. I will gladly play a admission fee to see the Police and the State explain being "detained" in a Court trial after one of them is placed in handcuffs and refuse to answer questions.

The simplest answer is the Police can and will do whatever they want on the streets and you, as the average citizen, are powerless to stop them and are along for ride. I look forward to anyone posting legal opinions that talking to the Police and answering all of their questions is a good idea.

 

[BSA1]

I read the Deanimator would not answer an officer's question about the child's abduction that he may have witnessed, because of the adversarial nature of all contacts with the police. He would decline to answer until his counsel was present a few days later.
I think that may not be true, but that is what his posts tell me.
Rick

Is he a "person of interest?"

Or maybe more importantly will his answers and silence make him a "person of interest" or a suspect?

 

[Kleanbore]

No longer are officers wearing a blue uniform with a shiny badge, Sam Browne duty belt and a hat. Now they wear BDU style pants, tactical load bearing vest with lots of pockets stuffed with gear. a cloth badge sewed on somewhere, high capacity semi-automatic pistol, black combat style boots.

What on Earth does that have to do with this discussion?

Massad Ayoob, whose opinion is held in such high regard on THR, cautions people to be careful what they say to the Police and he even offers seminars on what to say to the Police, what questions not to answer and how to interact with them.

If Salinas vs. Texas is as widely applied as is being suggested here then Ayoob is offering very bad legal advice.

Let's not confuse the issue.

Ayoob's advice pertains to the certain important aspects of providing very limited, purposeful information to an officer at the scene, after an actor has used or threatened force in self defense. That actor will, in the course of mounting a defense of justification, admit to having done the deed, whether for not he has followed that advice.

There is nothing in Salinas v. Texas that would make Ayoob/s advice to tell the officer that he will answer questions later "very bad legal advice."

Salinas v. Texas is the law of the land. If you had used or threatened deadly force and intended to mount a defense of justification, how would you interact tows arriving officers?

The simplest answer is the Police can and will do whatever they want on the streets and you, as the average citizen, are powerless to stop them and are along for ride.

Come now! The Fifth Admendment, as incorporated by the Fourteenth, has made that assertion incorrect in this country for a very long time.

I look forward to anyone posting legal opinions that talking to the Police and answering all of their questions is a good idea.

No one I know would offer such advice.

 

[Elkins45]

My thanks for all the interesting and informative feedback, esp. Spats and RickD. Here's a little background for my reasoning and some animosity towards "local yokels".

About 30 years ago, I had occasison to have two illuminating encounters with one municipal PD in this area. I had been out hunting with a Marlin Golden 39A .22 levergun but some of the local kids saw me going and followed as they wanted to try the gun. One of the kids dropped the gun and got some of the coal and rock dust (think "black sand") in the workings and I had to remove the firing pin and put it in my pocket. On the way home, I stopped at a neighbor's home as they were getting some roof work done and I was chatting with a mutual friend and neighbor who was doing the work. A little while later, a "local" showed up (after being called by another neighbor) and asked me to come out to his cruiser and bring the rifle with me. When I did, he told me I was under arrest for "carrying on a public street". I replied that I had because he told me to do so. This was long before Illinois' gun laws got updated and the female lawyer I hired to help me FAILED to inform me about the "exemptions" to the UUW provision with which I was charged. Needless to say, because of that failure to inform (one of the reasons I dislike lawyers), I got a sizeable fine AND lost that rifle, the first one I had bought for myself.

FF about two years and I was out working with my two dogs,testing their reactions to gunfire. I was using a .22 pistol with Shorts, then LR ammo, to see if they were gun shy at all. On the way home, I had removed the cylinder and put it in my pants pocket so it was "legal" according to those "exemptions" I had read in the law books in both the local library as well as the law library in the courthouse. While chatting with a neighbor who also had a bird dog, two cruisers showed up and they patted me down. I was told to go home, lock up the dogs and come to the station where they would charge me with "peace disturbance". However (you KNEW that was coming), when I got to the station, the one officer told me I was going to be charged with another UUW statute. I informed the officer about the "exemptions", even quoting chapter and verse AND reminding him that his partner had found the cylinder in my pocket, hence the gun was "broken down and disabled" within the letter of the law. This officer's reply was startling. He said "I don't care about the law. I'm going to book you anyhow!"
I filed a complaint with the police captain in charge of the depart the first business day after that and, three days later, the charges were dropped. I was still out part of the bond I had been forced to cough up.

Both of these incidents, as well as numerous "ordinance violations" a neighbor used to harass me and my dogs were among the reasons I no longer live within those city limits. I could not trust that department to provide aid and assistance when needed.

While I realize that your intention in posting this was that I should conclude, “Police are bad people who should not be trusted,” my actual takeaway was, “Gee, I’m glad I don’t live in Illinois.”

 

[lawson4]

Is he a "person of interest?"

Or maybe more importantly will his answers and silence make him a "person of interest" or a suspect?

He may be a witness having seen the car, or the suspect that abducted the child. Delaying giving the description until his council is present may cost the life of the child. I suspect he would leave as soon as possible to avoid talking to the police, leaving them with no information to help the child.
I take his posts to mean he doesn't care if he can help, he just won't talk to the police ever, no matter what the circumstances, without council. He has reiterated that several times.
Rick

 

[Frank Ettin]

....One gets the impression from Frank and other posters that refusing to talk to the Police will result in you being convicted of a crime. However Massad Ayoob, whose opinion is held in such high regard on THR, cautions people to be careful what they say to the Police and he even offers seminars on what to say to the Police, what questions not to answer and how to interact with them.....

So you don't understand the difference between, "refusing to talk to police" and, people being, "careful what they say to police"?

....If Salinas vs. Texas is as widely applied as is being suggested here then Ayoob is offering very bad legal advice....

No, because Mas is not suggesting that after a "use-of-force-in-self-defense" incident one doesn't say nothing. He counsel saying certain things.

In fact, I discuss how Mas suggests interacting with police and why here.

....I know a couple of Law Professors and at least one very respected Judge that believe that once the handcuffs have being applied and you are not free to leave it is an arrest....

Of course since you seem to be unclear on the difference between, "refusing to talk to police" and, people being, "careful what they say to police" perhaps you misunderstood them.

....I look forward to anyone posting legal opinions that talking to the Police and answering all of their questions is a good idea.

Of course everything depends on the situation. If I called the police to report coming home from the movies to find my house burglarized it would be in my interest to be helpful (although I might need to be cautious if the thieves stole some things I wasn't supposed to have).

 

[Old Dog]

The United States is well down the road to being a Police State

More hyperbole. I've spent time in police states. Our country is not even close.

The image of Police has undergone a major change. No longer are officers wearing a blue uniform with a shiny badge, Sam Browne duty belt and a hat. Now they wear BDU style pants, tactical load bearing vest with lots of pockets stuffed with gear. a cloth badge sewed on somewhere, high capacity semi-automatic pistol, black combat style boots.

Really? As if this matters or is germane to a discussion about talking to the police? That the police should actually be allowed to dress themselves in practical, utilitarian clothing and equipment is a problem? Are you saying officers need that shiny badge, a necktie and a hat?

I look forward to anyone posting legal opinions that talking to the Police and answering all of their questions is a good idea.

The underlying assertion here being that all conversations with police and answering their questions is automatically a bad idea, somehow infringing upon the rights of every citizen? Just how do you think that police investigations are conducted? If every witness to every crime, accident or crisis declined to speak to the police there would be no need for the police ... as some of you here believe that the police do not prevent crime, only showing up afterward (if at all) to take a report ...

At least some citizens understand the concept of the social contract and are willing to assist law enforcement. More and more, I'm seeing statements and opinions on this board that are simply mind-boggling ... Where's the common sense?

 

[RickD427]

I look forward to anyone posting legal opinions that talking to the Police and answering all of their questions is a good idea.

You have to remember how the legal system works. I spent 37 years a an LEO and have acquired a pretty full library of published cases during that time. The only way that you get published case law on a criminal issue is for a person to be prosecuted, for an appeal to result, and for the Appellate Court to elect to "publish" their decision.

When a LEO has reason to detain you based on suspicion of a criminal offense, that officer is neither your "friend", nor your "enemy." He/she is a professional trying to resolve a factual dilemma "did you actually commit a crime, or not." We don't get rewarded based on the number of arrests. There's no "free toaster" with the tenth booking slip. If we arrest someone who is subsequently cleared by investigators, we look bad. If we release a subject after detention and they're later found responsible for the crime, we look bad. Our goal is to reach the right conclusion, not to make an arrest.

When the subject of the detention aids us in that effort, usually by making statements, and we reach the correct conclusion that there is no crime, there is no opportunity for that outcome to produce any published case law and for that reason there is none.

 

[Deanimator]

So you don't understand the difference between, "refusing to talk to police" and, people being, "careful what they say to police"?

Define "careful".

Does the average person know when a cop is on a fishing expedition? Doubtful.
Does the average person know when a cop is asking things which he has no business asking? Doubtful.

I would no more try to be my own legal representation than I'd try to do eye surgery on myself. Dealing with police in situations which you didn't initiate without a lawyer is dangerous.

The average person has no idea what the cop is doing or why, or even whether his rights are being violated. That being the case, he'd be foolish to interact with police, especially when he's being detained, in any way not stipulated by law, such as (in Ohio) identifying himself as having a concealed carry credential WHEN HE IS ARMED.

 

[BSA1]

That the police should actually be allowed to dress themselves in practical, utilitarian clothing and equipment is a problem? Are you saying officers need that shiny badge, a necktie and a hat?

Well Sir Robert Peel has this to say;

"Good appearance commands respect."

Why shouldn’t the Police wear a shiny badge, breakaway tie (when the weather is cool/cold and for Court and public speaking appearances) and a hat? Being a Police Officer is a profession to be proud of. Due to the unique nature of Policing and their role in the community they should stand out.

Instead more and more LEO's uniforms and the way they carry their equipment make them look like they are going into combat as Special Forces soldier.



https://brainmass.com/law/criminal-...ve-principles-or-standards-of-policing-543445

 

[BSA1]

So you don't understand the difference between, "refusing to talk to police" and, people being, "careful what they say to police"?

Of course since you seem to be unclear on the difference between, "refusing to talk to police" and, people being, "careful what they say to police" perhaps you misunderstood them.

Ok. Unconfuse me.

What is the legal difference between “refusing to talk to the police” and “being careful about what they say to the Police”?

Part of the Miranda Warning says; “You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

So by remaining silent that can be used against me in a Court of Law.

But if I choose to talk to the Police anything I say will be used against me in a Court of Law.

Note the words “against me.” Words that I say that prove my innocent is not used by the by the Police. In fact the Police and Prosecutors have a well documented history of withholding evidence that favors the accused.

Miranda also goes on to say: “You have the right to speak to an attorney, and to have an attorney present during any questioning.”

Another version is “You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?”

Miranda v Arizona

So by refusing to answering questions until I consult a lawyer (known as lawyering up in Police terms) isn’t that the same thing? After wouldn’t an innocent person willing and freely cooperate with the Police and answer all of their questions? If I am truly innocent why would I be “lawyering up”?

Nor would I present a affirmative self-defense by answering other than the basic questions to establish the facts as much in my favor as possible before talking to a lawyer. The Police are going to conduct the same investigation and interview witnesses. My role is to point out evidence and witnesses that the Police may overlook or that have left the scene. The Police may not be my foe but they most certainly are not my friend so there is no buddy talk or off the record conversations.

In Salinas the Court did not state what specific words or terms I must use to “expressly” invoke my right to avoid self-incrimination. That concern is raised in the dissent.

Of course everything depends on the situation.

And that is something we both agree on.

 

[BSA1]

When the subject of the detention aids us in that effort, usually by making statements, and we reach the correct conclusion that there is no crime, there is no opportunity for that outcome to produce any published case law and for that reason there is none.

Except our System of Justice does not require the "subject of the detention" or the accused to aid the Police. Our system is adversarial and that fundamental belief is incorporated in the Bill of Rights. The Police (i.e the Government) are required to prove it's case without the assistance of the accused.

 

[RickD427]

Except our System of Justice does not require the "subject of the detention" or the accused to aid the Police. Our system is adversarial and that fundamental belief is incorporated in the Bill of Rights. The Police (i.e the Government) are required to prove it's case without the assistance of the accused.

That's certainly true, but the law also doesn't require you get out of the path of a speeding truck. It's just wise to do so.

In circumstances where the subject of a detention is determined not to be involved in criminal activity (remember that any investigation can go either way), there is no case for the government to prove, so what's the relevance?

 

[Deanimator]

That's certainly true, but the law also doesn't require you get out of the path of a speeding truck. It's just wise to do so.

In circumstances where the subject of a detention is determined not to be involved in criminal activity (remember that any investigation can go either way), there is no case for the government to prove, so what's the relevance?

What was the "case" in the McMartin Pre-School debacle?

 

[JohnKSa]

Ok. Unconfuse me.

What is the legal difference between “refusing to talk to the police” and “being careful about what they say to the Police”?

If this is a legitimate question then there is no possible way to "unconfuse" you.

If I tell you to be careful while driving, are you really going to misunderstand and think that I have told you to refuse to drive? Conversely, if a judge tells you that you are prohibited from driving, would you honestly believe that the instruction is merely a reminder to drive carefully?

What was the "case" in the McMartin Pre-School debacle?

In a nation where approximately 170,000 LEO/citizen interactions take place EVERY DAY, why would it surprise you to find that some of them turn out less than ideal? More to the point, even if you can quote, from memory, several hundred such interactions which were problematic, why do you think that proves that LE is never on the up and up when it interacts with citizens and that you should treat them as a threat?

Let's say you can come up with 5,000 interactions from the past 5 years in the U.S. that have reprehensible outcomes. That is less than 0.002% of LEO/citizen interactions over that timeframe. That is approximately 1 out of every 61,000 interactions. For perspective, if the average person had car wrecks at the same rate, (1 wreck for every 61,000 times they drive a vehicle) they could expect to have a car wreck, on average, once every 80 to 90 years.

I'm not saying that LEOs are always pure as the driven snow. I'm not saying that there is no risk to interacting with LE. I'm not saying that bad LEO/citizen interactions never take place. I'm just saying that we should maintain some semblance of rational perspective.

 

[RickD427]

What was the "case" in the McMartin Pre-School debacle?

There wasn't one. I was working a Sheriff's Station in the vicinity when that whole caper went down, and we had one of our detectives on loan to the task force that worked the case. When all was said and done, it was a matter of over-zealous prosecution. The purported victims of that case are now well into adulthood. I've read follow-up reports where many have claimed their initial statements were made as the result of their interviews with non-LEO counselors who were contracted by the prosecution. I haven't seen any instance where a now-adult purported victim has alleged any illegal activity.

Your tendency in this thread seems to be to reach back for cases of egregious police misconduct, and then generalize the conduct to profession as a whole. Any profession that draws its membership from the human race is going to have a small number of very significant problems, law enforcement is no different. I can point you to cases where physicians and nurses have actually killed patients, but yet when I really sick, I still go the doctor and to the hospital. I understand the numbers and percentages involved.

This country has more than five hundred thousand LEO's. Each having multiple contacts with the public each working day, and you have to reach as far back as you have to cite notable cases of misconduct. With many LEOs in service, I'm sure that we'll continue to see some small level of misconduct, and a lot of heroic conduct. Knowing human nature, I would be more concerned if all reports of misconduct ceased. That would indicate cover-up to me. When I read verified reports of misconduct, I also always look to see how the misconduct came to light. In most cases, it was from the LE agency itself. Go figure out what that means.

 

[JohnKSa]

This country has more than five hundred thousand LEO's.

MANY more--the latest estimate I've seen is over 760,000 LEOs with general arrest powers.

 

[Frank Ettin]

Define "careful"....

Really? You don't know what "careful" means? It's a perfectly good and common English word.

"Careful":

ADJECTIVE

• 1. Making sure of avoiding potential danger, mishap, or harm; cautious.
  
  
  1. 1.1careful of/about Anxious to protect (something) from harm or loss; solicitous.
     
     
  2. 1.2 Prudent in the use of something, especially money.
     
     
• 2. Done with or showing thought and attention.

Ok. Unconfuse me.

What is the legal difference between “refusing to talk to the police” and “being careful about what they say to the Police”?....

Really? You don't know the difference between not saying anything and saying something but being cautious/prudent about what you say?

...Part of the Miranda Warning says; “You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

So by remaining silent that can be used against me in a Court of Law....

So when you wrote, regarding Salinas:

....I understand the case and the Courts rulings....

You weren't being truthful. You really don't understand the case and the Court's rulings.

Anyway, I've done as much as I'm willing to do. You have the citation to Salinas, and I've provided several quotes from the opinion. I guess from here you'll have to try to un-confuse yourself.

....In Salinas the Court did not state what specific words or terms I must use to “expressly” invoke my right to avoid self-incrimination. That concern is raised in the dissent.

Well that's the sort of thing done in a dissent -- attack the ruling. But defining magic words would have been beyond the scope of the case. If it's a problem addressing the problem would be the province of a legislature, not a court.