Not Content With Gutting The Fourth Amendment, The Government Continues Its Attack On The Fifth And Sixth

from the and-as-for-'presumed-innocent,'-let's-not-even-bring-up-that-farcica dept

The government seems to be doing all it can to gut the Fourth Amendment these days. Between the NSA's domestic data collections and the administration's recently filed amicus brief arguing for warrantless searches of arrestees' cell phone contents, our supposedly guaranteed rights are looking more and more like rarely granted privileges.

Perhaps due to their proximity both in number and scope, the government is also working hard to eliminate the protections afforded by the Fifth and Sixth Amendments as well. One of the more recent blows to these rights came from a court decision in Salinas v. Texas, in which the court ruled that simply remaining silent is not the same as invoking your right to remain silent, and as such, can be used (under specific circumstances) as evidence of guilt. Another earlier decision (Berghuis v. Thompson) also weighs on this, putting the onus of invocation on the arrestee. The Berghuis decision makes the invocation the key element, post-arrest. Simply refusing to talk to police officers when detained or arrested doesn't protect you. The Miranda rights are available but you'll have to be the person invoking them. Otherwise, your lack of cooperation becomes problematic. For you.

The problem is that silence (as in, just shut up), is not an invocation of either the right to remain silent or the right to counsel. Silence is an invitation for the police to persist in the interrogation until, maybe, the silence ends. Unfortunately, most people can’t “just shut up.” Even if they can, it’s only for a brief period, after which the words of police interrogators cajoling them to help themselves, just clear a few things up so you can go home, whatever point in the Reid Technique they’re at, overcomes the three word warning and out comes the confession.

It’s not that just shut up isn’t good advice, but that it’s inadequate and takes your eye off the ball...

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words that leave your mouth, that you are invoking your rights. This is how you do so:

I do not want to answer questions.

I want to speak with my lawyer.

Your rights, properly invoked, prevent the things you say from being used against you, but only if you a.) stop talking and b.) wait for your lawyer. And these rights need to be invoked loudly and clearly whenever another member of law enforcement enters the interrogation room, otherwise the newcomer can claim the arrestee never invoked his rights.

That handles part of the Fifth. For better or worse, the Miranda decision folds in the Sixth Amendment, which makes this recent decision a bit more problematic, even if the outcome is a small win for citizens' rights. Because of Miranda's blend, the Fifth and Sixth are intertwined, meaning that bad precedent can adversely affect two rights at one time while good precedent can be very limited in its application, especially in the hands of a determined prosecutor.

The courts have already found that simply not answering questions post-arrest can be used as evidence of guilt. But what happens when you ask for legal representation before the police have arrested or detained you?

Here's an excellent summary of the situation from A Public Defender:

In US v. Okatan [PDF], the court was confronted with the case of Mr. Okatan who tried unsuccessfully to smuggle one Uysal – a German citizen – into the U.S. illegally. He failed: Uysal was turned away, although Okatan – a citizen – was allowed entry. The next day, Uysal was found at a border checkpoint and arrested and Okatan was spotted in a car in the vicinity and tailed to a rest area where an Officer Boucher pulled up behind his car, activated his lights and told him to remain inside the vehicle. Then:

Boucher walked over to Okatan’s car, identified himself as a border patrol agent and asked Okatan if he was a United States citizen. Okatan said that he was and handed over his passport. Boucher then asked why Okatan had passed the rest area on the east side of the highway and made a U-turn to enter the Beekmantown rest area. Okatan replied that he had to use the bathroom.

Boucher warned Okatan that lying to a federal officer is a criminal act and asked whether he was there to pick someone up. Okatan said that he wanted a lawyer. At that point, Boucher placed Okatan under arrest and transported him to the Champlain border patrol station.

When the case came to trial, Okatan's lawyer moved to suppress statements made after the defendant requested a lawyer (which was still pre-arrest). The court granted this but the prosecution argued that Okatan's request for a lawyer was itself an admission of guilt.

The key, according to the Second Circuit Court, was Okatan's invocation of his rights. That it happened pre- or post-arrest didn't matter nearly as much as the invocation did, thanks to the Salinas decision. The court also declared the state really had no business dragging his pre-arrest invocation into its "case in chief."

This melange of court decisions has resulted in the following situation, which every American should find disturbing whether or not they've ever committed a crime.

Here we had a situation of a man, who by sheer dumb luck, managed to navigate the complex and moving obstacle course that the judiciary has set up en route to the invocation of Constitutional rights and yet the prosecution wanted to take that turn it to its advantage yet again.

When we live in a world where “I want a lawyer” is de facto evidence of guilt, we will live in a world where that lawyer wouldn’t even be able to help us.

Scott Greenfield arrives at the same conclusion. The common man has no chance, even with this favorable decision.

Clearly, this is a minefield for the person who wishes to rely on his right to remain silent and right to counsel. While the Second Circuit came out the right way here, it nonetheless ignores the level of sophistication demanded of a regular guy to recognize the myriad details necessary to effectively exercise his constitutional right not to be interrogated. While it’s facile to say “ignorance of the law is no excuse,” it’s reached the level of requiring a Juris Doctor to know and appreciate the rules imposed for the exercise of rights under the Fifth Amendment.

What's the best course of action for citizens who wish to invoke their rights without creating "evidence of guilt" when being questioned by the police? Greenfield again:

So back to the bottom line of what to do when the cops ask questions nicely, the answer for now appears to be await a substantive question, the answer to which might create a risk of jeopardy, and then clearly say “I want to speak with my lawyer.” Sorry that this has become so prolix, but it’s better than getting it wrong.

While we all supposedly have a right to remain silent and the right to an attorney, the government (meaning law enforcement and prosecutors -- both operatives of the state) have been poking and prodding at the amendments' weak spots over the years, turning these "rights" into privileges that have to be asserted loudly, unwaveringly and timed correctly. What a joke.

Filed Under: 4th amendment, 5th amendment, 6th amendment, right to remain silent