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THE POLICE CONTACT: SILENCE IS GOLDEN by Carl F. Worden

BarnacleBob

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Almost every semester I have at least one student come to me asking for “legal” advice due to an encounter he or she has had with the local Gestapo. In the first place, I am not licensed to practice law and, therefore, cannot give legal advice. In the second place, nine times out of ten, they come to me too late—even if I was an attorney—the damage has already been done.

Be advised, we have enough city, county, state and federal edict-enforcers in this area to field an army and most of these jack booted government thugs (especially the state highway patrol and selected Federalies) are totally out of control. They mostly leave us “old guys” alone, but the fact that they aggressively target Sul Ross students is not in question. This is probably because you are easy targets—you do not know your rights and are, therefore, easily intimidated. Hopefully this will educate you a little.

The following is a combination of material from different sources. First is an excerpt from an article written by Carl F. Worden and published by Cornell University School of Law. Following the Worden article are “Instructions and Comments” furnished by a practicing attorney. Then finally, is a “Notice to the Government Functionary,” which you should print out and keep—on your person, at home and especially in your vehicle where the majority of your police contacts will occur. At any time you are contacted by a government functionary (aka cop), hand him the printed copy (along with your driver’s license and proof of insurance, if applicable). Then, most important of all, follow the instructions to the letter. DO NOT ALLOW HIM TO BLUFF OR INTIMIDATE YOU INTO DOING OTHERWISE!!!

All of this information is open access—public information—so feel free to reproduce and disseminate it to your friends, relatives, and even casual acquaintances. Post it on your dorm room wall, in the bars and pool hauls around town and anywhere else anyone might benefit. It could possibly save them a lot of grief.

jtl, 419

THE POLICE CONTACT: SILENCE IS GOLDEN by Carl F. Worden


I will start with law enforcement contacts with regard to traffic stops for suspicion of driving under the influence of alcohol or drugs. The Fifth Amendment of the Bill of Rights states that we are not to be forced to incriminate ourselves. The actual wording is that you cannot be “compelled” to be a witness against yourself. If you are stopped for suspicion of DUI, these are your rights, regardless of the laws of your state. First, you are to deny having consumed any alcoholic beverages whatsoever. You are never to admit to having one or two drinks. If you admit to consuming even one drop of alcohol, you open the door to probable cause, allowing the police officer to search your vehicle for open containers.

Next, you are never to submit to a field sobriety test. You are to refuse to do so. They cannot make you walk the line, balance or anything else. If arrested, you are to refuse to allow a blood or breath test, regardless of what state law requires, such as revocation of driving privileges for a period of time. That is an attempt to compel you to be a witness against yourself. Supreme Court decisions in this area are quite specific with regard to your rights as follows: Lefkowitz v. Turley, 94 S. Ct. 316, 414 U.S. 70 (19 73).

“The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding civil or
criminal formal or informal, where the answers might incriminate him in future criminal proceedings.”

McCarthy v. Arndstein 266 U.S. 34, 40, 45 S. Ct. 16, 17, 69 L.Ed 158 (1924), squarely held that “the privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is a party defendant.” Maness v. Myers, 95 S Ct. 584, 419 US 449 (1975). “…where the Fifth Amendment privilege against self-incrimination is Involved … This Court has always construed its protection to ensure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action… The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Hoffman v. United States, 341 US. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1] 18 (1951). “

“In Kastigar v. United States, 406 U S 441, 92 S Ct. 1653, 32 LEd. 212 (1972), we recently reaffirmed the principle that the privilege against self-incrimination can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Id., at 444, 92 S.Ct., at 1656; Lefkowitz v. Turley, 414 US. 70, 77, 94 S. Ct. 316, 322, 38 L.Ed. 2d 274 (1973)…Miranda v. Arizona, 86 S.Ct. 1602, 384 US 436 (1966).

“We have recently noted that the privilege against self-incrimination — the essential mainstay of our adversary system-is founded on a complex of values … To maintain a fair state individual balance, to require the government to shoulder the entire load … to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the’ evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth… in sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will.””…there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”

Please also note: The above, as stated by the Supreme Court, are rights and privileges as guaranteed by the Constitution, and anyone (including judges) who knowingly violates those rights may be civilly and criminally liable under several federal statutes. Please see: United States Code, Title 18 Section 241 (Conspiracy against rights), and Section 242 Deprivation of rights under color of law); Title 42 Section 1983 – Section 1986 (Civil Rights). Most attempts to pursue action under these laws fail, but very skilled litigators with good factual circumstances can sometimes get some satisfaction. However, if more individuals were to understand the above rights and exercise them at the appropriate times, more successful litigation could be the outcome.

Okay, you got that? You cannot be forced to provide evidence against yourself, therefore you must not allow any tests whatsoever, be it field sobriety “walking the line”, or a blood or breath test. Period. If you will follow these instructions, they have no case against you and they are also barred from taking away your driving privileges under the same Supreme Court rulings.

Now to more serious matters: If you are contacted as a possible suspect, or even a witness, in any other law enforcement investigation, you are to say nothing. You are to say nothing even when your attorney is present. You are to say nothing, regardless of evidence of your guilt as presented by the law enforcement officers. You are not to try to explain away the circumstances of the evidence they present to you. You are to say absolutely nothing. No matter how tempted you are to try to talk your way out of the situation, you are to give them absolutely NOTHING to verify. If they ask you if the sky is blue on a clear day, you are to say nothing. You are to give them nothing whatsoever. Whatever evidence or witness information they have, you are to say nothing. Even denying any of their allegations can be used against you in a prosecution if it is determined later that you obviously lied. You are to stay MUTE.

The reason for this is quite simple: The evidence the law enforcement officers have is all they must be required to work with. Don’t give them anything more. The only time you should consider the option of telling your side of the story is to your attorney in privacy, or in a court of law if prosecuted.

Because you have stayed mute, giving law enforcement nothing in addition to the extrinsic evidence and witness information at hand, the burden of proof available to the district attorney is severely limited and will most often result in a dismissal of charges unless their evidence and witness input is overwhelming and compelling enough for a grand jury to return a bill of indictment. And even if bound over for trial, the jury will be limited to consider only that evidence and witness input.

When you are given your Miranda Rights wherein you are informed that anything you say can and will be used against you, take it to heart: If you say absolutely nothing, NOTHING can and will be used against you in a court of law.

There are literally thousands of people behind bars today who tried to talk their way out of a law enforcement contact. Don’t fall for the ploy. Law enforcement officers are trained to bluff you into making denials or statements. They will appear friendly and reasonable. They will appear willing to help resolve the matter. They will tempt you to talk about it and appear sympathetic. Don’t fall for it. Say nothing. Give them nothing.

Deny nothing. Give them NOTHING. Stick your tongue between your teeth and bite down – HARD. You are to be a marble statue. You do not exist. You have no past, you have no address, you have no name, you have no social security number. You are to give them nothing whatsoever to work with.

Instructions, Comments and Other God Given, Constitutionally Guaranteed Rights (composed by a practicing attorney):

The U.S. Constitution prohibits the government from interfering with your right to remain silent, to consult with an attorney, and to be free from unreasonable searches and seizures by law enforcement. However, it is up to you to assert these rights. This information will help you do so effectively.

If you are confronted by a police officer, remain calm. Be courteous and provide your identification and proof of insurance, if requested. Politely refuse to answer any other questions. Ask to talk to an attorney. Do not consent to any search of your person, your property, your residence or your vehicle. Tell the officer you would like to give him this card, which is a statement of the Constitutional rights you wish to invoke. Do not reach for the card until you have obtained the officer’s permission to do so. Here is a checklist of things that you need to be sure to do.

1. It is important to remain calm and courteous. Remember, frequently the encounter is being videotaped. The officer knows this and will play to the camera. Use the same tactic.

2. Officer’s will frequently try to get you to waive your rights by asking questions such as, “This is just for my safety,” or “If you don’t have anything to hide, you should not object to answering the questions or permitting the search.” Don’t fall for this tactic. Do not respond other than to confirm that you intend to invoke your rights.

3. Officers are frequently offended by the invocation of Constitutional rights. A hard stand can lead to the officer finding some pretext to arrest you. This is a short-term harm if all evidence of illegal activity is excluded from the trial. If you feel that you must respond to the officer’s questions, and they will keep asking you questions, turn the questions on the officer. Ask him why he feels threatened if he mentions officer safety. Ask him why he feels the need to search you, your car, your home or possessions. Put the onus on him. This tactic is especially helpful if the encounter is recorded because it can be used against the officer later when he comes up with other reasons (“probable cause”) for the arrest/search. Remember to be polite and play to the camera.

4. If the stop is made by immigration officers, they can ask for additional information. They can ask questions related to whether you have the right to be in the United States (Are you a U.S. citizen?) and if your journey originated near the border or border equivalent (international airport). They do not have the right to know your business or where you are going. Confirm your citizenship and that you have or have not been to the border. Do not provide any other information and give them the card. Of course, if arrested, you will have to provide basic identification information at booking. DWI arrests have other statutory warnings that must be read to you regarding the suspension of your license. Do not submit to the DWI questionnaire or answer any questions other than acknowledging you were given the warnings. Do not submit to any field sobriety tests or breath tests, in the field or at the jail.

5. Your right to remain silent arises at the moment of the encounter (exceptions noted above). That right can be waived and frequently is. It is your job to invoke the right. You are not entitled to the Miranda warnings until you have been arrested, so don’t think you exclude statements pre-arrest on the basis you did not receive your Miranda warnings. What you say will be used against you, so it is best not to say anything. Even after invoking the right, you can open the door to further questioning by responding to the officer. While the officer is not supposed to continue to question you after you invoke your right to remain silent, a favorite tactic is to engage in chitchat. If you take the bait, you may waive your right to remain silent.

6. Your right to an attorney does not arise until you are placed in custody. This is an amorphous term so invoke the right immediately. You will notice the card asks for permission to leave if not in custody. Once placed in custody, and the right to an attorney is invoked, the officer is supposed to stop all questioning, even chit chat, giving you additional protections. The right to an attorney is much harder to waive once invoked than the right to remain silent.

Print the following page (from here down) and keep it with you. Hand it to any police contact that may be initiated against you and, most important, follow the instructions to the letter.

Notice to the Government Functionary

I hereby invoke and refuse to waive all of the following rights and privileges afforded to me by the U.S. Constitution and the Constitution of the State of Texas.

I invoke and refuse to waive my Fifth Amendment right to remain silent. Do not ask me any questions.

I invoke and refuse to waive my Sixth Amendment right to an attorney of my choice. Do not ask me any questions without my attorney present.

I invoke and refuse to waive all privileges and rights pursuant to the case, Miranda v. Arizona. Do not ask me any questions or make any comment to me about my decision.

I invoke and refuse to waive my Fourth Amendment right to be free from unreasonable searches and seizures. I do not consent to any search or seizure of myself, my home, or of any property in my possession. Do not ask me about my ownership interest in any property. I do not consent to this contact with you. If I am not presently under arrest or under investigatory detention, please allow me to leave.

Any statement I make, or alleged consent I give, in response to your questions is made under protest and under duress and in submission to you claim of lawful authority to force me to provide you with information.

Specific Notice to Immigration Officers: I am a citizen of the United States of America. My journey did not originate in a foreign country or border equivalent (international airport). I have not been to the border. Do not ask me any further questions.

Please also note: The above, as stated by the Supreme Court, are rights and privileges as guaranteed by the Constitution, and anyone (including judges) who knowingly violates those rights may be civilly and criminally liable under several federal statutes. Please see: United States Code, Title 18 Section 241 (Conspiracy against rights), and Section 242 Deprivation of rights under color of law); Title 42 Section 1983 – Section 1986 (Civil Rights).


NOTE: In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to:

 

Buck

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Next, you are never to submit to a field sobriety test. You are to refuse to do so. They cannot make you walk the line, balance or anything else. If arrested, you are to refuse to allow a blood or breath test, regardless of what state law requires, such as revocation of driving privileges for a period of time. That is an attempt to compel you to be a witness against yourself. Supreme Court decisions in this area are quite specific with regard to your rights as follows: Lefkowitz v. Turley, 94 S. Ct. 316, 414 U.S. 70 (19 73).
this no longer works in my State, here, they take your blood without your consent, you signed up for that when you get your license, and the local DA says they can...you can't choose to do the pee test, blood only AND your DNA is logged in also

i was 'swarmed' when they stole mine, video'd and everything but surprisingly that video disappeared...

there's no way out, once they get you, you're going to pay, severely


oh yeah, any 'refusal', Yes, they will still mark it as a Refusal, even though they took my blood...lost my license for a year

Remember Kids: Driving is a Privilege, not a Right!



this country is a pos
 

Goldhedge

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Remember Kids: Driving is a Privilege, not a Right!
Which is why traveling is a right. 'Driving' is a commercial activity.
 

oldgaranddad

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Advice from a lawyer that I received long ago. You never refuse a test. You just state that it is your right to have legal counsel present. Tell them you will gladly cooperate and submit to testing after your legal counsel has advised you of all your rights. Expect to be detained but refuse to further answer any questions until your lawyer is present. Expect your license to be suspended. It's all part of the game the state plays.
 

Buck

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Which is why traveling is a right. 'Driving' is a commercial activity.
i do all my traveling on four wheels with an ICE...

between my legs
1616945188312.png

is this Right?

:don't know: