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

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:

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:

The Civil Rights Lawyer’s Reaction to the Chauvin Verdict

I (The Civil Rights Lawyer), as someone who practices in the area of #ExcessiveForce#CivilRightsLitigation​, give my analysis on the #ChauvinVerdict​ from yesterday. I’ll take you through the actual jury instructions to explain what the jury decided. And also what they did not decide.

Here’s the recent study data I discuss in the video. Polling data established that the media and irresponsible politicians and social justice warriors have majorly skewed public perception on so-called systematic racism in police shootings. Here’s the data to review for yourself:

So, the respondents, after being asked whether they identify as liberal or conservative, were asked,“If you had to guess, how many unarmed Black men were killed by police in 2019?” Over 22% of people identifying themselves as “very liberal” responded that they believed 10,000 or more unarmed black men were killed by police in 2019. Even 13% of people identifying themselves as “conservative” placed the number at 10,000 or more. Over 40% of conservatives thought the number was at least 100 or more.

In reality, the number is actually between 13 and 27 unarmed black men who were killed by police in 2019.

The Washington Post has created a database of every known deadly police shooting in America since 2015.  As of April 14, 2021, 6,211 people have been shot and killed by law enforcement officers.  46% of them—2,883 to be exact—were white, while 24% (1,496 total) were black. Just 6% were unarmed.

One of the most pernicious myths about police shootings is that officers shoot unarmed black men at an alarming rate, when in fact just 2% of the people who were killed by an officer were unarmed and black.  Since the beginning of 2015, law enforcement officers across the country have actually killed 33 more unarmed white people than unarmed black people.

https://www.maciverinstitute.com/2021/04/the-truth-about-police-shootings-in-america/

The statistics do show that black people are statistically more likely, per capita, to be shot and killed by police. How is this explained? The assumption used by the media and politicians is some sort of implicit or systematic racism, bias or prejudice. But that’s ignoring all other statistics.

The most recent, which was published in Proceedings of the National Academy of Sciences in 2019, found “no significant evidence of antiblack disparity in the likelihood of being fatally shot by police,” and instead determined that “race-specific county-level violent crime strongly predicts the race of the civilian shot.”

https://www.maciverinstitute.com/2021/04/the-truth-about-police-shootings-in-america/

Engage in more criminal activity and you have more interactions with police. More interactions with police equals more shootings, both justified and unjustified.

For instance, although blacks comprise just 13% of the US population, they accounted for 53% of the murder and non-negligent manslaughter arrests in 2018 (the most recent year for which FBI crime data is available), 54% of all robbery arrests, and 37% of all violent crime arrests.  Whites, on the other hand, comprise 76% of the population but made up just 44% of the murder and non-negligent manslaughter, 43% of the robbery, and 59% of the total violent crime arrests.

Since victims of and witnesses to violent crimes are invariably the ones who report them to police—and since victims are almost always of the same race as the perpetrator—police officer racism is not a factor in the wide disparity of arrests.

In Milwaukee, for instance, The Milwaukee Journal Sentinel’s homicide tracker has recorded 890 total murders in the city since the beginning of 2015.  A staggering 79% of the victims are black.  In 2021, that percentage has jumped to 91%, as 31 of the 34 people killed in Milwaukee as of this writing were black.

The unfortunate reality is that just as blacks are statistically far more likely to be the victims of homicide or other violent crimes, they are also statistically more likely to commit violent crimes that would bring them into conflict with a law enforcement officer with his or her gun drawn.

https://www.maciverinstitute.com/2021/04/the-truth-about-police-shootings-in-america/

ETA: My appearance on the Tom Roton Show this morning:

Updates on the Drug Task Force Search Case and the Family Court Search Case

On Friday we filed a lawsuit against Putnam County and the individual members of their “SEU” – Special Enforcement Unit – for an illegal search of a family’s residence in Putnam County, West Virginia in April of 2019. These were the same guys from the Dustin Elswick video. Here’s the full complaint (sorry it was omitted earlier, but NOW here it is):

Then this morning we received motions to dismiss from the defendants in the Family Court Judge Search case. Here’s the memorandum arguing for dismissal for the judge, based on judicial immunity, and somewhat surprisingly, the 11th Amendment:

Lastly, here’s the memorandum arguing for dismissal for the county and the deputies, arguing qualified immunity:

We’ll go through these in tonight’s live video update in Freedom is Scary, Episode No. 58. Join me live at 6:30 p.m. ET:

Oral Arguments in Caniglia v. Strom and the so-called “Community Caretaking” Exception Issue

The U.S. Supreme Court recently held oral arguments in the Caniglia v. Strom case, where law enforcement has been seeking the official establishment of a “community caretaking” exception to the warrant requirement which protects a person’s home. You can listen to the arguments here.

You can hear that the justices are concerned/obsessed with the hypothetical scenario of an elderly person having fallen, or been injured, in her home. Some neighbor of family member calls for the police. They show up at the door; there’s no answer; can they go in without a warrant? If they don’t, maybe the woman has “fallen and can’t get up.” And maybe she doesn’t have Life Alert…..

That’s the hold up here. The questions from the Court didn’t sound promising at all. This is a case where both the ACLU and the Gun Owners of America submitted amicus briefs. This is a we-the-people vs. the government issue. Unfortunately, the Court seems overly concerned about the potential liability of police officers who engage in wellness checks.

But it’s really a non-issue. The proper answer to Judge Roberts’ hypothetical is the reality that there never would be civil liability for an officer who technically violates the Fourth Amendment just by checking on grandma during a wellness check. Why? Because of qualified immunity. Any lawsuit stemming from such a scenario would be granted qualified immunity. And even if he/she weren’t, the measure of our constitutional rights is not a policy analysis about the costs or efficacy of law enforcement agencies, who have insurance for these reasons, defending against civil lawsuits.

Here’s what happened in oral arguments today in the AR-15 Open Carry case – Walker v. Donahoe

This afternoon, oral arguments were held in the case of Walker v. Donahoe – the AR-15 open carry case out of Putnam County, West Virginia. I’ll discuss what happened in a live debriefing at 6:30 pm, which is in 4 minutes…..

Here’s a link to the actual recording of the arguments, if you missed it live:

Here’s an excerpt of my argument, as taken by my staff:

Here’s the video of the underlying incident, if you haven’t seen it:

Cops ABUSE Walmart Shopper in front of his Crying Toddler

Brand-new police body-cam footage shows an outrageous detainment and arrest of an innocent guy shopping in Walmart with his poor toddler. I break it down, explain some of the relevant law, and show what happened. This couldn’t have gone much worse. Multiple Fourth Amendment violations….. and then there’s Walmart.

Reasonable suspicion is required to perform an investigative detention. Probable cause is required to perform a warrantless arrest. The “Graham Factors” are assessed to analyze the legality of the use of force which occurred. I’d guess the police here will fail miserably on all three.