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WTF over-zealous police? - Page 170

post #2536 of 6080
Quote:
Originally Posted by Jmm722 View Post


The money comes from the strip searches, forced enemas, colonoscopy and holding him for 12 hours for detainment http://www.cnn.com/2014/01/16/justice/new-mexico-search-settlement/  I was actually surprised at how low that settlement was, particularly due to how invasive it was.  

I watched the video. He can't invoke his right against self-incriminaiton by remaining silent.  You have to actually articulate it.  Pre-Miranda, pre-arrest silence may be used as an adoptive admission in a criminal prosecution.  That doesn't really apply here, because they aren't asking him about any crime.  However, this type of misinformation may get others in trouble who think this is how you invoke your rights.

Unfortunately, most people don't know how to properly protect themselves.  I feel like it should be taught whenever it is covered in high school.  It's really hard for anyone to object to the thought of people learning their fundamental rights, it' not like it'll give anyone an upper hand.  These protections are in place already and citizens should know their rights and how to properly exercise them.

Apparently he did articulate it per the article. He just did not do it immediately upon first being addressed by the officer.
post #2537 of 6080
Quote:
Originally Posted by Piobaire View Post


Apparently he did articulate it per the article. He just did not do it immediately upon first being addressed by the officer.


At the beginning of the video he literally just stared at the officer for about 2 minutes and didn't say anything.  If he was being questioned for an actual crime then that silence could be used against him.  It sounds silly, but you actually have to state you are refusing to answer any questions, otherwise the police keep asking questions and your silence can be interpreted as an admission.  The idea is that a not-guilty person would immediately disclaim any inference of wrongdoing.  This is only in non-custodial interrogations (not under arrest, can leave the questioning, etc.)

 

Essentially, you have to invoke right to counsel and right against self-incriminination orally, at which point all questions must cease until your attorney is present.  Each state can add even more protections, like here in NY, you cannot waive Miranda without counsel present.

 

Regardless, it's abundantly clear that filming in public is constitutionally protected.  The only issues are when you're in public and filming private property.  He's definitely in public and filming public property.  He did have a gun holster without his gun in it, if you listen to the video, but that would only be reasonable suspicion for a pat-frisk if they were talking to him.  Unless there's a restraining order, reports that he's stalking someone, etc. then he can't be stopped.


Edited by Jmm722 - 7/15/15 at 10:20pm
post #2538 of 6080
Quote:
Originally Posted by Jmm722 View Post

Quote:
Originally Posted by Piobaire View Post

Apparently he did articulate it per the article. He just did not do it immediately upon first being addressed by the officer.
This is only in non-custodial interrogations (not under arrest, can leave the questioning, etc.)

He couldn't leave the questioning, he attempted to do so and was detained.
post #2539 of 6080
Quote:
Originally Posted by Jmm722 View Post


At the beginning of the video he literally just stared at the officer for about 2 minutes and didn't say anything.  If he was being questioned for an actual crime then that silence could be used against him.  It sounds silly, but you actually have to state you are refusing to answer any questions, otherwise the police keep asking questions and your silence can be interpreted as an admission.  The idea is that a not-guilty person would immediately disclaim any inference of wrongdoing.  This is only in non-custodial interrogations (not under arrest, can leave the questioning, etc.)

Essentially, you have to invoke right to counsel and right against self-incriminination orally, at which point all questions must cease until your attorney is present.  Each state can add even more protections, like here in NY, you cannot waive Miranda without counsel present.

Regardless, it's abundantly clear that filming in public is constitutionally protected.  The only issues are when you're in public and filming private property.  He's definitely in public and filming public property.  He did have a gun holster without his gun in it, if you listen to the video, but that would only be reasonable suspicion for a pat-frisk if they were talking to him.  Unless there's a restraining order, reports that he's stalking someone, etc. then he can't be stopped.

His silence here is irrelevant. Even if silence can be interpreted as an admission of guilt, here he wasn't accused of a crime.
post #2540 of 6080
Quote:
Originally Posted by Jmm722 View Post


At the beginning of the video he literally just stared at the officer for about 2 minutes and didn't say anything.  If he was being questioned for an actual crime then that silence could be used against him.  It sounds silly, but you actually have to state you are refusing to answer any questions, otherwise the police keep asking questions and your silence can be interpreted as an admission.  The idea is that a not-guilty person would immediately disclaim any inference of wrongdoing.  This is only in non-custodial interrogations (not under arrest, can leave the questioning, etc.)

Essentially, you have to invoke right to counsel and right against self-incriminination orally, at which point all questions must cease until your attorney is present.  Each state can add even more protections, like here in NY, you cannot waive Miranda without counsel present.

Regardless, it's abundantly clear that filming in public is constitutionally protected.  The only issues are when you're in public and filming private property.  He's definitely in public and filming public property.  He did have a gun holster without his gun in it, if you listen to the video, but that would only be reasonable suspicion for a pat-frisk if they were talking to him.  Unless there's a restraining order, reports that he's stalking someone, etc. then he can't be stopped.

I'll let the birdman weigh in, but I don't think that's true. The way I understood it is that simply by remaining silent doesn't mean you're invoking your right to remain silent or an attorney, and therefore the police can continue to question you.

I find it hard to believe that in court the prosecutor could use the fact that you didn't say anything to a police officer for two minutes as evidence of guilt. 'THAT GUY DIDN'T IMMEDIATELY RESPOND TO A QUESTION! HE MUST BE GUILTY!'
post #2541 of 6080
Quote:
Originally Posted by brokencycle View Post

I'll let the birdman weigh in, but I don't think that's true. The way I understood it is that simply by remaining silent doesn't mean you're invoking your right to remain silent or an attorney, and therefore the police can continue to question you.

I find it hard to believe that in court the prosecutor could use the fact that you didn't say anything to a police officer for two minutes as evidence of guilt. 'THAT GUY DIDN'T IMMEDIATELY RESPOND TO A QUESTION! HE MUST BE GUILTY!'

Guilty of what?
post #2542 of 6080
Quote:
Originally Posted by taxgenius View Post

Guilty of what?

Not complying on an immediate basis, which these days, is often punished by on the spot execution.
post #2543 of 6080
Quote:
Originally Posted by brokencycle View Post


I'll let the birdman weigh in, but I don't think that's true. The way I understood it is that simply by remaining silent doesn't mean you're invoking your right to remain silent or an attorney, and therefore the police can continue to question you.

I find it hard to believe that in court the prosecutor could use the fact that you didn't say anything to a police officer for two minutes as evidence of guilt. 'THAT GUY DIDN'T IMMEDIATELY RESPOND TO A QUESTION! HE MUST BE GUILTY!'

The first part you're correct on, and it's what I said in the first place.

 

The second part, has been upheld by SCOTUS.  There are no presumptions in criminal cases, but the jury may (not must) draw inferences.  The idea is that someone questioned of a crime would immediately deny any culpability if they were completely innocent.  What you said is gross misrepresentation of what is permissible.

 

As I said, here it wasn't really applicable because there was no crime he was being questioned about.  But, it also show people the wrong way to protect your rights.  

 

As for the "unable to leave" it refers to when you show up at the police station for questioning (typically voluntarily) then are not allowed to get food, leave for bathroom breaks, leave for smoke breaks, etc.  Essentially, you arrive voluntarily and then feel like you are unable to leave.  It's also why police give people making a confession food, because it defeats a claim of duress or coerced confessions.

post #2544 of 6080
Quote:
Originally Posted by Piobaire View Post

Not complying on an immediate basis, which these days, is often punished by on the spot execution.

Only if you're a minority.
post #2545 of 6080
Quote:
Originally Posted by Texasmade View Post

Only if you're a minority.

A quick Google-fo says, "No."
post #2546 of 6080
Quote:
Originally Posted by brokencycle View Post



I find it hard to believe that in court the prosecutor could use the fact that you didn't say anything to a police officer for two minutes as evidence of guilt. 'THAT GUY DIDN'T IMMEDIATELY RESPOND TO A QUESTION! HE MUST BE GUILTY!'

Quote:
Originally Posted by Jmm722 View Post

The first part you're correct on, and it's what I said in the first place.

The second part, has been upheld by SCOTUS.  There are no presumptions in criminal cases, but the jury may (not must) draw inferences.  The idea is that someone questioned of a crime would immediately deny any culpability if they were completely innocent.  What you said is gross misrepresentation of what is permissible.

As I said, here it wasn't really applicable because there was no crime he was being questioned about.  But, it also show people the wrong way to protect your rights.  

As for the "unable to leave" it refers to when you show up at the police station for questioning (typically voluntarily) then are not allowed to get food, leave for bathroom breaks, leave for smoke breaks, etc.  Essentially, you arrive voluntarily and then feel like you are unable to leave.  It's also why police give people making a confession food, because it defeats a claim of duress or coerced confessions.

1. I think you're misconstruing b-cycle's point. I understood his comment to be about the persuasiveness or value of that evidence. It's easy to get confused being the courts saying it's permissible to draw certain inferences in certain circumstances, on one hand, and the courts concluding that such inferences must be drawn whenever the conditions precedent exist. In some circumstances, silence may be pretty persuasive evidence. In other cases, it's not. What SCOTUS has said is that, in the appropriate circumstances the jury is permitted to draw (or not) whatever conclusions it feels are warranted by that piece of evidence, just as it does with any other piece of evidence. (I think you get this - just clarifying.)

2. Maybe there's some semantic confusion here -- are you talk about irrebuttable presumptions? It's simply not the case that "there are no presumptions in criminal cases". Presumptions -- including one very well-known and critical one -- are applied in criminal cases all the time.

3. Your last point is a jumbled mess. Whether or not you're being detained doesn't turn on bathroom breaks or getting food. And saying that giving people who are confessing food "defeats a claim of duress or coerced confessions" is absurd. Where did you come up with that? Cops give people being interrogated food for a variety of reasons, including the desire to play the whole "hey buddy I'm on your side here" routine. But a coerced confession doesn't become legit just because the copy gave the a danish.

Oh, and having said all that -- good call, cycle, on waiting for Birdman. He does this stuff for a living. I don't really, anymore, at least not in a context where I have to deal with these issues regularly. If I fucked it all up he can correct it.
post #2547 of 6080

You don't know the law but you're correcting me regardless.  Wouldn't expect anything less from another lawyer 

post #2548 of 6080
Quote:
Originally Posted by Jmm722 View Post

You don't know the law but you're correcting me regardless.  Wouldn't expect anything less from another lawyer 

Dude, I could have corrected your bullshit when I was in third grade.
post #2549 of 6080
Quote:
Originally Posted by lawyerdad View Post


Dude, I could have corrected your bullshit when I was in third grade.


Must be why I make $200K+ as a 2nd year.

 

I tried to actually provide facts.  You confused my comments which were about custodial interrogation versus an interview.  Also the deprivation of food, drink, water etc. has be used to assert a confession under duress. 

 

I'm out, you're clueless.  I've argued these cases and won every time.

post #2550 of 6080
Quote:
Originally Posted by Jmm722 View Post


Must be why I make $200K+ as a 2nd year.

I tried to actually provide facts.  You confused my comments which were about custodial interrogation versus an interview.  Also the deprivation of food, drink, water etc. has be used to assert a confession under duress. 

I'm out, you're clueless.  I've argued these cases and won every time.
200K? Welcome to 1994.
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