How to talk to police without a lawyer

Should someone talk to the police without a lawyer present?

  1. The criminal justice system overwhelmingly depends on people to unwittingly incriminate themselves for convictions, which they do.
  2. If a criminal suspect invokes the right to counsel, or the right to remain silent, they generally don’t incriminate themselves.
  3. A criminal suspect need only request a lawyer for all interrogation to stop. They DO NOT need to already have a lawyer – just to ask for one. Just a lawyer in general. These are magic words which stops an interrogation.

Custodial interrogation cannot take place with Miranda warnings and a waiver of the rights to remain silent and the right to have a lawyer present before and during questioning.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

5th Amendment to the U.S. Constitution

When are Miranda Warnings required to be read? Miranda warnings are required to be given when a suspect is in custody and being interrogated OR when a suspect believes that he is in custody and being interrogated. “Interrogation” includes not only express questioning but also its “functional equivalent,” namely, any conduct “that the police should know [is] reasonably likely to elicit an incriminating response.” When is someone in custody? That depends. Were they asked to exit a vehicle during a stop? Were guns drawn? Was force used? Were they placed in handcuffs? Were they told they weren’t free to leave?

A suspect can waive Miranda rights, but cannot waive the reading of Miranda warnings by law enforcement. Miranda warnings may need to be read again by police if too much time has elapsed in between the reading of the warnings and the subsequent interrogation.

When are Miranda Warnings NOT required to be given?

Officers can conduct general on-scene questioning as to facts surrounding a crime or other general fact finding without Miranda warnings. Officers can ask about the guilt of others/third parties without giving Miranda warnings. Miranda warnings don’t apply to voluntary statements made prior to interrogation. Miranda warnings don’t apply to statements of guilt made to persons other than law enforcement. Miranda warnings don’t apply if the person interrogated is not in custody.

Miranda warnings are generally not required at traffic stops. See Pennsylvania v. Bruder , 488 U.S. 9, 109 S. Ct. 205 (1988). In this case, the Supreme Court re-emphasized that ordinary traffic stops do not involve custody for the purposes of Miranda, and therefore, police do not need to inform those stopped for traffic violations of their Miranda rights unless taken into custody. Officers can generally ask any questions they want to suspects who are not in custody. See Arizona v. Johnson, 555 U.S. 323, 333 (2009). “An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”

What about silence? Post-arrest silence by a defendant after Miranda warnings have been given is inadmissible against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). If a defendant gives a statement, however, his silence as to other matters may be admitted. Anderson v. Charles, 447 U.S. 404 (1980); see United States v. Mitchell, 558 F.2d 1332, 1334–35 (8th Cir. 1977). A defendant’s pre-arrest silence may be admitted, Jenkins v. Anderson, 447 U.S. 231 (1980) as well as silence after arrest but prior to warnings. Fletcher v. Weir, 455 U.S. 603 (1982).

When can an officer not interrogate a suspect at all?

An officer may not interrogate if the suspect has requested a lawyer.

An officer may not interrogate if the suspect has in any manner, at any time prior to or during questioning stated that he wishes to remain silent.

What sort of behavior by officers may render a confession invalid in court?

A confession MAY be invalid if obtained as the result of withholding food, drink or bathroom access. A confession may be invalid if obtained following threats, coercing or tricking a suspect into waiving Miranda Rights. A confession may be invalid if the interrogation is too long; or, If physical force is used; or, If promises to help a suspect if he or she confesses; or, If the officer misrepresents the body of evidence collected against the suspect

Kentucky Judge Invalidates All of Governor Bashear’s State of Emergency Actions

Today my colleague from Kentucky, Chris Wiest, received an awesome ruling from the Circuit Court of Boone County declaring that all of Governor Andy Bashear’s emergency orders and actions are unconstitutional and void. The ruling was in the state-court challenge to the governor’s emergency powers executive orders, filed by Wiest on behalf of Beans Cafe’ & Bakery.

Dr. Stephen Petty, an actual expert in masks, testified at the trial about their uselessness under the circumstances in which they’re being idolized. Here’s an excerpt from the order pertaining to Dr. Petty. For those bureaucrats and social media tyrants who would censor this, this is from an actual court order issued today. Not that you care:

Stephen E. Petty, P.E., CIH, testified as an expert and was accepted as such without objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained Ohio’s risk assessors.

Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.

The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.”

According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being.

Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed.

Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others.

He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?”

Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.”62 According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .”

Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better.

The judge summarizes the situation nicely:

It is obvious from even a cursory review that the orders issued over the past fifteen months “attempt to control” and seek “to form and determine future rights and duties” of Kentucky citizens. These included ordering the closure of all businesses, except those the Governor deemed essential. He ordered churches closed, prohibited social gatherings, including at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from receiving scheduled surgeries and access to medical care. And then there is the order that everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.

 At the hearing, Defendants took exception to the Attorney General’s characterization of the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact on those who lost their businesses as a result, or those in nursing homes condemned to spend their final hours alone, deprived of the comfort from loved ones (or even any real contact with humanity), or those citizens who the Governor prohibited from celebrating their wedding day with more than ten persons, or those he forced to bury their dead alone, without the consoling presence of family and friends (and who likewise were deprived of paying their final respects), or those persons who were barred from entering church to worship Almighty God during Holy Week, and even Easter Sunday, or those persons who were denied access to health care, including cancer-screenings, or those denied entry into government buildings (which they pay for with their taxes) in order to obtain a necessary license, and who were forced to wait outside for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.

 What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker—“is something this Court never expected to see outside the pages of a dystopian novel.” Yet, Defendants contend that the Governor’s rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d’état against it.

Here’s the order itself:

Yes, life is now a dystopian novel. Let’s hope this patriot judge’s order stands up on appeal in the state appellate courts in Kentucky. And thanks to Chris Wiest and the AG of Kentucky for fighting the good fight. The order notes that the permanent injunction against the governor goes into effect on June 10, 2021 at 5:00 p.m.

Lawsuit Filed Against Chicago Company for Mandating the Vaccination of West Virginia Employees

Today we filed suit against Enlivant, a Chicago company who owns and operates an assisted living facility in Greenbrier County, West Virginia operating as Seasons Place Assisted Living. On June 1, 2021 they terminated my client, Stephanie McCutcheon, for refusing to take an unapproved non-mandatory vaccine for COVID-19.

This is the letter Stephanie received from the Human Resources Director in Chicago after complaining about the company’s verbal vaccine mandate. As you can see, knowing it was a violation of federal law to mandate the vaccine, they attempted to frame her termination as a resignation.

Given that it appears to be a form letter, they have apparently done this to other employees. They have assisted living facilities in numerous states.

Our legal theory is a state-law based claim of retaliatory discharge. Basically, as everyone knows, West Virginia is an at-will employment state. However, there was an exception created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), which provides that:

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

The State Supreme Court has defined the areas from which “public policy” may derive:

“The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.”

See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015)

So federal laws and regulations may form the basis of “public policy.” Now whether that public policy is “substantial” depends on whether it’s “widely regarded as to be evident to employers.” No doubt that requirement is met in this case. A quick google search will reveal an enormous amount of discussion and advice regarding the legality of employers mandating the vaccine. But we shall see….

Here’s the lawsuit, in full, which lays out the facts and law pertaining to the COVID-19 vaccines at the current time:

Here are the exhibits, including the EUA letter to Pfizer:

We are asking for an expedited hearing for a preliminary injunction enjoining Enlivant from terminating employees for choosing not to take a non-mandatory, unapproved vaccine, and directing that my client be re-hired, as well as a declaration that a private employer may not terminate or take adverse action against employees for choosing not to take the COVID vaccine. We are also seeking money damages, punitive damages and attorney fees.

Media Reports:

https://wvrecord.com/stories/602196867-employee-sues-assisted-living-facility-after-she-was-fired-for-refusing-to-take-covid-vaccine

State Supreme Court Issues Opinion in the Wayne County Lawsuit against the Governor

Today the West Virginia Supreme Court issued their opinion from the lawsuit we filed against the Governor on behalf of the Wayne County Republican Party. We already knew they ruled against us. But now we know the reasoning. If you recall, there were two competing letters: one from the Wayne County Chair, and one from the State Republican Party. In the end, the Court essentially threw both of them out, and held that the Governor gets to choose his own replacement after 15 days. This was probably something the legislature should have addressed already, as the opinion points out.

Conspiracy of Family Court Judges EXPOSED

This is absolutely outrageous. Apparently, there’s a secret society style organization of Family Court judges in West Virginia, who held a meeting and signed a resolution asking the West Virginia Supreme Court to fire the judicial disciplinary counsel prosecutors, who are currently engaged in the disciplinary prosecution of Judge Goldston in what has been termed the “Family Court Judge Search Case.” This was then leaked to the media by the judges, none of whom would agree to go on the record, but rather opted to work from the shadows.

The “Outlaw Barber” Arrested for Refusing to Close During the Lockdown Files Civil Rights Lawsuit

Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.

The case was detailed last year in a Federalist article titled, West Virginia Barber’s Arrest Shows Failings Of The Bureaucratic State:

When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.

His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.

He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.

We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself:

I’ve already revealed the body cam footage from one of the deputies, which caught much of the interaction on video:

Federal Judge Blocks Race/Gender-based Grants

A federal judge in Texas this week blocked the Biden administration from distributing grants in a COVID-19 restaurant relief program that prioritizes applicants by their race and/or gender.

U.S. District Judge Reed O’Connor, a George W. Bush nominee, said he believes plaintiff Philip Greer, a cafe owner, is likely to succeed in his lawsuit against the Small Business Association as he granted a request for a temporary restraining order (TRO).

Link to the ruling.

Thus, the Court concludes that the government has failed to prove that it likely has a compelling interest in “remedying the effects of past and present discrimination” in the restaurant industry during the COVID-19 pandemic. For the same reason, the Court finds that Defendants have failed to show an “important governmental objective” or “exceedingly persuasive justification”9 necessary to support a sex-based classification. See Resp. 24, ECF No. 9. Having concluded Defendants lack a compelling interest or persuasive justification for their racial and gender preferences, the Court need not address whether the RRF prioritization program is narrowly tailored or substantially related to those particular interests. Accordingly, the Court concludes that Plaintiffs are likely to succeed on the merits of their claim that Defendants’ use of race-based and sex-based preferences in the administration of the RRF violates the Equal Protection Clause of the Constitution

https://assets.documentcloud.org/documents/20773795/order-granting-tro-against-biden-administration.pdf

“To whom it may concern” letter detailing the fact that it is illegal under federal law to mandate COVID vaccines

Here is a “to whom it may concern” letter for those in West Virginia who are being threatened with, or subjected to, COVID vaccine mandates:

Thanks to Chris Wiest in Kentucky for the assistance in generating the substance of the letter.

SCOTUS Destroys the “Community Caretaking Doctrine” and Some Case Updates

Join me at 7pm Live – The SCOTUS issued an opinion today protecting the sanctity of the Fourth Amendment protections of the home, which also served as an anti-red-flag ruling, restricting the police from performing warrantless searches of homes to seize firearms.

This is just in time for recent updates on two of our search and seizure cases with the same or similar issues: the Putnam County drug task force search case and the WV Family Court Judge Search case.

Link to the Opinion.

PS: I’ve had to downsize the live videos for the season due to being so busy, to just Monday evenings at 7pm. Just way too much going on at the moment! Make sure to join me next Monday…..

My Black Client Arrested for Installing Fiber Optics in White Cop’s (Alleged) Driveway

Join me Live for #FreedomIsScary​ No. 62 about a federal #CivilRights#Lawsuit​ I’m working on on behalf of a black man from Kentucky – the son of a police officer BTW – who was arrested in Mercer County, West Virginia for allegedly installing fiber optic cables while black. He was allegedly in the private driveway of this West Virginia Natural Resources police officer, who apparently has an extremely loose dress code.

Update: Federal Lawsuit filed. Here it is: