Being Prepared--What to Do When the Cops Show Up?

Many, many years ago there was a book titled "The Underground Guide to Your Legal Rights." On being stopped, the first thing they said was to ask "may I leave?" If they said no, ask why not. Say nothing else except "I respectfully refuse to answer any questions and request a lawyer until I am able to obtain one of my choice." (The last part applies in Texas, at any rate).

Don't be a dufus like you see on Cops or such. "May I look in your car?" is followed by "no you may not."

Oh, since I carry, when I'm asked for DL and proof of insurance, I always tell the officer "my license is in my right rear pocket and my proof of insurance is in the glove box." Do I say "I'm carrying?" Not unless he asks. In which case I pull out my CHL, which is hidden in my wallet. I will not surrender my weapon unless he asks for it. Oh yeah, I've actually had a cop AD it because he didn't know how to "safe" it.

But I say nothing of probative value. Never. Never ever. I was busted once, but charges were dropped because the cops screwed it up "by the numbers."

Oh, since I carry, when I'm asked for DL and proof of insurance, I always tell the officer "my license is in my right rear pocket and my proof of insurance is in the glove box." Do I say "I'm carrying?" Not unless he asks. In which case I pull out my CHL, which is hidden in my wallet. Originally Posted by austin_voy

If you do that, you would not be in full compliance with the law, which states:

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

See Texas Government Code § 411.205.

Note: Prior to September 1, 2009, the failure to display a CHL could subject the CHL to revocation and constitute a Class B misdemeanor. However, it appears that the Legislature has deleted the enforcement provisions for section 411.205.

@ShysterJon - the "bust card" isn't really completely accurate any longer after Berghuis v. Thompkins is it? I mean, even a simple utterance such as "May I go to the bathroom", if uttered after you invoke your right to silence and/or to counsel can be construed that you have voluntarily given up those rights and are willing to speak . . . you have to reassert your invocation if you make ANY utterance or answer ANY question, such as "would you like a glass of water" - otherwise, they can just keep asking you questions and interrogate you almost indefinitely if I understand the ruling correctly. I feel a lot of people think that they are protected by those magic words but then they continue to speak (even to ambiguous matters) thinking that they can't use anything against them . . the bottom line here is when you STFU, make sure you actually STFU and STAY shut up - becasue if you open your mouth for ANYTHING you'll need to reassert the right to silence and ask for your attorney AGAIN . . .

. . But here's the catch 22 noted by Sotomayor (and it is a biggie) - "[S]uspects must now unambiguously invoke their right to remain silent — which, counter-intuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.".

So what do we do post Berghuis v. Thompkins? I know I am probably over-thinking it, but still, Berghuis v. Thompkins stripped a big chuck out of Miranda and it muddied the waters . . .

Anyway, just thought I would ask your opinion.

Kisses,

- Jackie

@ShysterJon - the "bust card" isn't really completely accurate any longer after Berghuis v. Thompkins is it? I mean, even a simple utterance such as "May I go to the bathroom", if uttered after you invoke your right to silence and/or to counsel can be construed that you have voluntarily given up those rights and are willing to speak . . . you have to reassert your invocation if you make ANY utterance or answer ANY question, such as "would you like a glass of water" - otherwise, they can just keep asking you questions and interrogate you almost indefinitely if I understand the ruling correctly. I feel a lot of people think that they are protected by those magic words but then they continue to speak (even to ambiguous matters) thinking that they can't use anything against them . . the bottom line here is when you STFU, make sure you actually STFU and STAY shut up - becasue if you open your mouth for ANYTHING you'll need to reassert the right to silence and ask for your attorney AGAIN . . .

. . But here's the catch 22 noted by Sotomayor (and it is a biggie) - "[S]uspects must now unambiguously invoke their right to remain silent — which, counter-intuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.".

So what do we do post Berghuis v. Thompkins? I know I am probably over-thinking it, but still, Berghuis v. Thompkins stripped a big chuck out of Miranda and it muddied the waters . . .

Anyway, just thought I would ask your opinion.

Kisses,

- Jackie Originally Posted by jackie@sintropolis

I don't think the U.S. Supreme Court's recent holding in Berghuis v. Thompkins conflicts with what's stated on the ACLU Bust Card. The first line of the Bust Card states: "You have the right to remain silent. If you wish to exercise that right, say so out loud." Without trying to oversimplify matters, that's essentially the Court's holding in Berghuis, so you may be reading the case's holding a bit too broadly.

The holding of Berghuis is that a suspect's silence during interrogation does not invoke his right to remain silent. But under Berghuis, a suspect being interrogated can still remain completely silent (that is, never verbally invoke his right to silence and, in fact, say nothing material at all) without fear because he will never make a statement that can be used against him because he makes NO STATEMENT AT ALL. In such a case, the State would not be permitted to offer evidence that the defendant said nothing. For example, an interrogating officer may not testify at trial, "I asked Joe Bob if he lopped off his grandmother's head, and he didn't deny it." Such a statement should cause the defense counsel to pull a penalty flag out of his back pocket and ask for a mistrial.

But I can see advantages in verbally and unequivocally asserting one's right to remain silent. The cops could terminate the questioning because they might think continuing won't get them anywhere. Or asserting the right to silence could be proof of a lack of waiver if the cops continue the questioning to wear the suspect down and the suspect makes a statement indicating guilt.

Bear in mind the Fifth Amendment protects us from the use of statements we make that are INCRIMINATING. In other words, the protection applies when a suspect says or writes something relevant to the offense (or some collateral issue, such as credibility) and the statement is material to guilt (that is, the statement makes it more likely that the suspect is guilty).

In your example, saying "May I go to the bathroom?" isn't incriminating because it's not relevant or material. The jury (hopefully) won't think, Hey, a dude who needs to pee MUST be guilty! By contrast, in Berghuis, the cop asked the suspect, "Do you pray to God to forgive you for shooting that boy down?," to which the suspect replied, "Yes." That statement was relevant and material, and it was the incriminating statement that was at issue in the appeal.

You also believe Berghuis may prolong interrogations. I guess that's possible. But the law before and after Berghuis is that the cops can question a suspect for a reasonable period of time, whether or not the suspect verbally invoked their right to silence. Prolonged questioning to wear the suspect down to try to get him to make damaging admissions continues to be contrary to constitutional protections. (The suspect in Berghuis was questioned for just three hours before he made the incriminating statement.) Of course, a suspect may end questioning at any time by invoking his right to counsel by saying something like, "I will not answer any questions until I have consulted with my attorney." Once a suspect clearly and expressly invokes his right to counsel, the questioning should stop. That rule remains unaffected by Berghuis.

Here's the link to the article to which you cited:

Wikipedia, Berghuis v. Thompkins

so one of my clients is a criminal defense lawyer and i had asked him some questions about wut if the LE were to walk in a room wut do i do and say? .heres wut he told me:
1.cops will do wutever whether its correct or not. their cops
2. dont say anything besides "let me give my lawyer a call and see if he wants me (you) to talk to them"
3.you have dne nothing wrong as far as they can see ( all they see is people coming in and out, nothing incriminating) so you dont have to tell them what you are doing. (thats where everybody screws up)

ive been busted by VICE in vegas and that was my fault lol i should have been more careful but IF YOU SCREEN your client/provider should check out so there should be no problems that way but as far as LE go its doesnt say in the hotel guide book that you are not allowed visitors!!!!!!! So there is absolutely no crime in having a botty call over!!!!!!!!!!!!!

yea...watch out for hotel workers too....make up something...the hotel on carnegie and 98th....cant remember the name but its nice...The Intercont matbe...the valet guy tried to shake me down for a bigger tip