Silk Road forums

Discussion => Security => Topic started by: wiggum on June 18, 2013, 09:41 pm

Title: New US Supreme Court case about keeping your mouth shut
Post by: wiggum on June 18, 2013, 09:41 pm
Clearnet summary:  http://www.scotusblog.com/2013/06/opinion-recap-if-you-want-to-claim-the-fifth/

In the case, cops were questioning a suspect in a murder investigation.  Crucially, the suspect was NOT in police custody (not detained or under arrest; he was free to leave).  Initially the suspect was cooperating by answering questions from the cops, but once they asked him if balistics would show that his gun was used in the crime, he went mum and wouldn't answer. 

The fact that he was answering questions and then suddenly went silent and behaved strangely was found admissible as evidence against him, because he didn't say "I am exercising my 5th amendment right to remain silent."

Remember that the 5th Amendment only protects you from being COMPELLED by the government to testify against yourself.  The logic is that if you are not in custody and are free to leave, you are not being "compelled" to give any answers in the first place, so the 5th amendment issue hasn't even been raised yet.

Here is the take home lesson, and it's the same as it has always been:  If cops are questioning you, immediately determine if you are being detained or are free to leave.  Ask them "am I free to leave?  Are you detaining me?"  If you are free to leave, leave (or ask the cops to leave if they are at your front door).  "Unless you are placing me in custody I would not like to answer any questions - have a nice day" is a perfectly legal and reasonable thing to say.  The worst thing you can do is answer some questions at first and then start acting skeevy if questions start hitting too close to home.

In a situation like the Supreme Court case, the guy should have not answered any questions in the first place because he was not in custody and was free to leave.  Once he started cooperating, however, he should have responded by saying "no" when he was asked "will ballistics show that your gun was used in the crime?"  His actual answer to the question - suddenly going from Mr. Cooperative to a shifty-eyed mute - was not the right way to handle the situation.

IMO this is not a change in the law, but some civil libertarians are kinda freaking out about it.  To me the issue remains the same as it always was:  Are you in custody or are you free to leave?  If you are free to leave the 5th amendment hasn't come into play yet - so just leave instead of saying "I take the fifth".  If you are not free to leave, say "if I'm not free to leave I will not answer any questions without an attorney present."

In a SR situation, suppose a cop comes to your door and asks if a package is yours.  Say no, and that is all you say.  If they ask you more questions, say "are you detaining me?"  If they are not detaining you, ask them to leave.  If they say they are detaining you say "well if I'm not free to leave I'm not answering any questions without a lawyer".  The end. 

In all cases, if you have actually been arrested, then you should just completely STFU and don't say a single word.  Don't even make any denials, just STFU and wait for a lawyer.  Once you're under arrest you have full 5th amendment protections and you don't have to actually say "I'm taking the fifth" in order to safely remain silent.

tl;dr - don't get into a conversation with cops about your illegal activities and try to smooth talk your way out of it.  Tell them to leave.  If they say no, you're under arrest, then don't say a single word.
Title: Re: New US Supreme Court case about keeping your mouth shut
Post by: Razorspyne on June 18, 2013, 11:00 pm
Good advice. Do not incriminate yourself by putting you foot in it, there is no need to answer questions pertaining to you involvement in a crime unless you are charged and have legal representation. LE are notorious for  bluffing you into thinking your story is implausible, don't fall for it, it is plausible, and you can deny it.

Piece, Love, and Fuck Haters.
Title: Re: New US Supreme Court case about keeping your mouth shut
Post by: ato72543 on June 19, 2013, 12:49 am
You learned the two greatest lessons in life:
Never rat on your friends, and ALWAYS keep your mouth shut.

 :) ;D
Title: Re: New US Supreme Court case about keeping your mouth shut
Post by: Baraka on June 19, 2013, 08:00 am
+1

Very well said wiggum!