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The 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 o

The 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 those amendments.

fleitz 13y ago
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.
- bobwaycott 13y ago
  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.
  - nknighthb 13y ago
    How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
    - bobwaycott 13y ago
      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).
      - hga 13y ago
        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.
        bobwaycott 13y ago
        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.
        hga 13y ago
        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.
        ctdonath 13y ago
        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.
  - hga 13y ago
    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.
    - bobwaycott 13y ago
      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.
- joshavant 13y ago
  To be sure, there's such a thing called 'custodial interrogation' which is, essentially, a situation where a person's freedoms are restrained, but not fully under arrest. http://en.wikipedia.org/wiki/Custodial_interrogation http://en.wikipedia.org/wiki/Custodial_interrogation I've previously heard the suggested language of 'Am I being detained or am I free to go?', which seems good enough to make the situation a lot less ambiguous.
- cynix 13y ago
  What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?
  - warmwaffles 13y ago
    You need to reiterate it until you elicit an answer
    - cynix 13y ago
      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.
      - hga 13y ago
        Who knows, but if they claim their refusal to say "Yes" to the question "Am I free to leave" actually means you were free to leave, I kind of doubt they'll get very far. And the safety exceptions won't be in effect after a few minutes of such obfuscatory questioning. For that matter, I suspect most will realize that they aren't going to get anywhere with someone who's knowledgeable and disciplined enough to only say "Am I free to leave?", and will move on for easier prey. Spending "hours" in such a game isn't going to generate the arrest statistics they need, they'd only make that sort of investment if it was a really serious felony. (Unless of course their reward was an internal one of successful harassment ... and this sounds very tedious.)
      - passwdispasswd 13y ago
        Depending on the facts they already have the right to detain you for 24 hours, or if federal agencies, kidnap you indefinitely. So why do you care so much about an answer to a question that has no power before the force of these people? Just be quiet and hope they leave you alone.
        hga 13y ago
        You care because "just stop talking altogether" and staring dumbly at the cop doesn't end the confrontation, unless he then leaves (and if you've tried for a while to get a definitive answer, you might as well quit asking for a while). If you get his OK, then he's not detaining you and you can leave.
- miles 13y ago
  Here it is in practice: http://www.youtube.com/watch?v=QNzgkruFw5g http://www.youtube.com/watch?v=QNzgkruFw5g
  - durkie 13y ago
    let's not forget https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc 50 minutes long, but worth it.
- pondababa 13y ago
  You can be detained without being under arrest. When you get pulled over for a traffic stop, you aren't under arrest, but you are being detained.
- aqme28 13y ago
  That assumes people are smart and informed. What happens if someone less informed than you gets in a bad situation with the police? Should they be punished for it?
  - ctdonath 13y ago
    According to the courts, ignorance of the law is no excuse. Hence the importance of keeping major legal issues as simple as the Founding Fathers instantiated them in the Constitution and Bill Of Rights: the common man is presumably incapable[1] of keeping up with voluminous manifestations of nuances of legislative and case law. If the police aren't expected to keep up with it all, in no way should prospective detainees (i.e.: all of us) be as well. But, alas, the legal system being what it is, that's why those of us smart enough to try to keep up with such matters must do so: protect, at least, our own skins. [1] - Not in an insulting way; there's a reason we pay lawyers big bucks to know such things.
passwdispasswd 13y ago
"you may find yourself in a situation where what was said / wasn't said can be used against you?" How is any interaction with law enforcement anything but this? Or with any party opponent?
AnIrishDuck 13y ago
You can still win the game be refusing to play. Assert your right to depart as soon as possible. State (politely) that you refuse to answer off-the-cuff questions. Upon any indication of detention, ask if you are free to leave. If you no longer have this right, you're in hot water. Shut up. Lawyer up. The law is a dangerous animal that you do NOT want to face alone and unguided. Most people trip up by either: (1) Assuming that the law officer is their friend and they are not a suspect. That's what happened here. (2) Foolishly thinking they can talk their way out of their predicament with what they gleaned from the last episode of law and order. The cops probably know more than you about the law. I personally would refuse to answer any questions beyond the level of "how fast were you going" from a LEO without a lawyer present. I would advise others to do the same.
- r00fus 13y ago
  This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them? Their job just got tougher today.
  - hga 13y ago
    It's a horrible result from horrible, quota etc. driven policing, especially as "real" crime continues to drop (you don't notice any layoffs in the police-judicial complex strictly from this statistical decline, do you?). If they really wanted to do what we perceive as their jobs, they wouldn't be faced with this problem. (And that's not even getting into the thesis that outside of e.g. very small rural departments there are by definition no good police, since even the "good" police look the other way in observing the Blue Wall of Silence http://en.wikipedia.org/wiki/Blue_Code_of_Silence. http://en.wikipedia.org/wiki/Blue_Code_of_Silence.) Perhaps the most important thesis in Arrest Proof Yourself (http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-Arrested/dp/1556526377/ http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-A...) is that the decline in real crime, which the police and courts by and large still do as good a job of dealing with, has required them to generate more arrests, convictions, and parole based entrapments, primarily from those the authors describe as "the clueless", the harmless to mostly harmless who do dumb things that are illegal but not a great threat to society. To the extent they view "their job" as doing whatever their superiors demand to e.g. achieve quotas of arrests, my heart bleeds.

fleitz 13y ago

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.

bobwaycott 13y ago
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.
- nknighthb 13y ago
  How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
  - bobwaycott 13y ago
    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).
    - hga 13y ago
      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.
      - bobwaycott 13y ago
        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.
        hga 13y ago
        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.
      - ctdonath 13y ago
        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.
- hga 13y ago
  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.
  - bobwaycott 13y ago
    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.
joshavant 13y ago
To be sure, there's such a thing called 'custodial interrogation' which is, essentially, a situation where a person's freedoms are restrained, but not fully under arrest. http://en.wikipedia.org/wiki/Custodial_interrogation http://en.wikipedia.org/wiki/Custodial_interrogation I've previously heard the suggested language of 'Am I being detained or am I free to go?', which seems good enough to make the situation a lot less ambiguous.
cynix 13y ago
What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?
- warmwaffles 13y ago
  You need to reiterate it until you elicit an answer
  - cynix 13y ago
    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.
    - hga 13y ago
      Who knows, but if they claim their refusal to say "Yes" to the question "Am I free to leave" actually means you were free to leave, I kind of doubt they'll get very far. And the safety exceptions won't be in effect after a few minutes of such obfuscatory questioning. For that matter, I suspect most will realize that they aren't going to get anywhere with someone who's knowledgeable and disciplined enough to only say "Am I free to leave?", and will move on for easier prey. Spending "hours" in such a game isn't going to generate the arrest statistics they need, they'd only make that sort of investment if it was a really serious felony. (Unless of course their reward was an internal one of successful harassment ... and this sounds very tedious.)
    - passwdispasswd 13y ago
      Depending on the facts they already have the right to detain you for 24 hours, or if federal agencies, kidnap you indefinitely. So why do you care so much about an answer to a question that has no power before the force of these people? Just be quiet and hope they leave you alone.
      - hga 13y ago
        You care because "just stop talking altogether" and staring dumbly at the cop doesn't end the confrontation, unless he then leaves (and if you've tried for a while to get a definitive answer, you might as well quit asking for a while). If you get his OK, then he's not detaining you and you can leave.
miles 13y ago
Here it is in practice: http://www.youtube.com/watch?v=QNzgkruFw5g http://www.youtube.com/watch?v=QNzgkruFw5g
- durkie 13y ago
  let's not forget https://www.youtube.com/watch?v=6wXkI4t7nuc https://www.youtube.com/watch?v=6wXkI4t7nuc 50 minutes long, but worth it.
pondababa 13y ago
You can be detained without being under arrest. When you get pulled over for a traffic stop, you aren't under arrest, but you are being detained.
aqme28 13y ago
That assumes people are smart and informed. What happens if someone less informed than you gets in a bad situation with the police? Should they be punished for it?
- ctdonath 13y ago
  According to the courts, ignorance of the law is no excuse. Hence the importance of keeping major legal issues as simple as the Founding Fathers instantiated them in the Constitution and Bill Of Rights: the common man is presumably incapable[1] of keeping up with voluminous manifestations of nuances of legislative and case law. If the police aren't expected to keep up with it all, in no way should prospective detainees (i.e.: all of us) be as well. But, alas, the legal system being what it is, that's why those of us smart enough to try to keep up with such matters must do so: protect, at least, our own skins. [1] - Not in an insulting way; there's a reason we pay lawyers big bucks to know such things.

passwdispasswd 13y ago

"you may find yourself in a situation where what was said / wasn't said can be used against you?" How is any interaction with law enforcement anything but this? Or with any party opponent?

AnIrishDuck 13y ago

You can still win the game be refusing to play. Assert your right to depart as soon as possible. State (politely) that you refuse to answer off-the-cuff questions. Upon any indication of detention, ask if you are free to leave. If you no longer have this right, you're in hot water. Shut up. Lawyer up. The law is a dangerous animal that you do NOT want to face alone and unguided. Most people trip up by either: (1) Assuming that the law officer is their friend and they are not a suspect. That's what happened here. (2) Foolishly thinking they can talk their way out of their predicament with what they gleaned from the last episode of law and order. The cops probably know more than you about the law. I personally would refuse to answer any questions beyond the level of "how fast were you going" from a LEO without a lawyer present. I would advise others to do the same.

r00fus 13y ago
This is a horrible result - how can law enforcement be effective if no one trusts them enough to willingly assist them? Their job just got tougher today.
- hga 13y ago
  It's a horrible result from horrible, quota etc. driven policing, especially as "real" crime continues to drop (you don't notice any layoffs in the police-judicial complex strictly from this statistical decline, do you?). If they really wanted to do what we perceive as their jobs, they wouldn't be faced with this problem. (And that's not even getting into the thesis that outside of e.g. very small rural departments there are by definition no good police, since even the "good" police look the other way in observing the Blue Wall of Silence http://en.wikipedia.org/wiki/Blue_Code_of_Silence. http://en.wikipedia.org/wiki/Blue_Code_of_Silence.) Perhaps the most important thesis in Arrest Proof Yourself (http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-Arrested/dp/1556526377/ http://www.amazon.com/Arrest-Proof-Yourself-Ex-Cop-Reveals-A...) is that the decline in real crime, which the police and courts by and large still do as good a job of dealing with, has required them to generate more arrests, convictions, and parole based entrapments, primarily from those the authors describe as "the clueless", the harmless to mostly harmless who do dumb things that are illegal but not a great threat to society. To the extent they view "their job" as doing whatever their superiors demand to e.g. achieve quotas of arrests, my heart bleeds.