View Poll Results: If one pleads the 5th amendment does that give law enforcement probable cause?
- 31. You may not vote on this poll
Since we are not attorneys I was wondering what others think of this........
The question you posed is a bit open-ended.
Having stated that, I couldn't agree more with you.
No. Apples and Oranges. Probable cause to believe a crime has been committed has nothing to do w/ your right to remain silent against self-incriminating statements, to be a witness against yourself, your right to counsel or your right to remain silent under miranda. In other words probable cause may exist and if you can't explain why it shouldn't or choose to remain silent, or speak, you may be going to jail anyway. Only because there was probable cause for an arrest in the first place not that you chose to take the 5th or invoke your miranda rights..
I didn't vote. Here's why:
One doesn't "plead the 5th Amendment" to a cop who is street-interviewing you. Instead, you say, "I do not wish to continue this interview. Am I under arrest, or may I go now?"
If the response is that you are under arrest, you say, "I want my attorney present during my interviews, please. I will not answer any questions unless my attorney is present."
In the interview, with your attorney present, you follow his/her instructions when answering police questions. At that point, you may be told to "plead the 5th."
In a street interview, you might also say, "Please articulate your probable cause for stopping and interviewing me."
In an arrest, you may also say, "Please articulate the probable cause or reason for this arrest."
You would be perfectly within your rights to state that the supplied reason or probable cause has no connection with you, nor does it involve you, if that statement is truthful.
Stating that you "plead the 5th," without the presence of a lawyer to advise you to do so, makes you look like a wise guy. It serves only to increase suspicion or raise animosity.
In answer to your specific question, to "plead the 5th" does not provide probable cause for any action on the part of police. But that is merely legally and constitutionally speaking.
In terms of interpersonal relations, stating that you "plead the 5th" would probably make any cop annoyed enough to want to find something with which to harass you.
(Note that I am not a lawyer, but merely a paralegal who was trained many years ago. My opinion is only my opinion, and does not constitute advice. For a useful answer, ask a lawyer.)
I like it.
Originally Posted by Steve M1911A1
Is there a link I'm not seeing in the OP's post?
Note: I use my Smart Phone to access this site/App using Tapatalk 2.
No. He just poses the question.
Originally Posted by TAPnRACK
O.k., apparently the poll question can only be viewed from the website & not the App (phone).
After viewing the question... I concur with Denner, and agree with Steve's statement.
Choosing to not make a statement or refuse an on the street interview does not create or add to an officers probable cause... it either exists or it dosen't. Unlike the movies and especially TV, most officers do not read Miranda rights at the time an arrest is made. Only if one is (1) in custody and (2) being formally questioned does one get read their rights... usually done by a detective assigned to the case.
The question is not viewable from a PC on this website at the time I am posting this but from others' postings, I get what was asked. Steve gave a very succinct answer and I would add this to it.
When asking about leaving or detainment, pose your question in this manner;
"Why am I being detaining?" instead of "Am I being detained?".
The reason is that if you are not free to leave, you most certainly are being detained so the answer to the second question of "Am I being detained" is obvious and already answered. By asking the first question of "Why am I being detained? [or "Why are you detaining me"]?" expects an answer from an officer.
I would also add that if you live in an area of the country where the likelihood of being stopped by an LEO is higher than expected, carry a small voice recorder. Police can and do lie and if you have what they have said on a recorder for your attorney, it can do wonders for you down the road.
If stopped, do not be belligerent or challenging. Do not cuss or quote all sorts of Constitutional passages. This is no time to play superman or super legal expert. Maintain your calm and be composed. Hold out your anger if you can and get them later. Once released go after them. Submit FOIA requests (your attorney will do this if you have one), complain to their supervisor (getting bad behavior on their permanent record is a good way to stifle their advancement), and hit them in court if need be.
However if the stop is valid and reasonable, much of this is probably going to be moot. You are going to have to know this the time it takes place. If the approach and stop is casual and the officer is looking for a consensual contact, you have two options. Oblige or simply say "enjoy your day" (or something similar) and walk away. To quote a famous gun writer, "police are always looking for bodies". Don't let them have yours.
How one handles a contact or a stop is going to be largely based upon their own personality, perception of the encounter, and the officer's demeanor. I would advise people to be the better person. And once again if the encounter goes sour, keep your cool then get them in court.
This all introduces another very similar topic. What is everyone's take on showing an ID if asked by an officer? Not a carry permit but just an ID of some sort... usually a picture ID is requested. What is your position on this?
If an officer asks you for identification or asks for your name you must identify yourself truthfully if there is probable cause, or reasonable suspicion a crime has been commited. If you are in control of an automobile of course they have a right to request a drivers license. Or they can take you to jail until they identify who you are. There are varied statutes by states on this matter as explained in the link below.
Originally Posted by SouthernBoy
To denner's succinct answer, I must add that it is my belief that in some states there is a requirement that you provide identification when asked by a LEO (see the Wikipedia article referenced by denner).
However, if the truthful answer is, "Sorry, officer, but I walked out of the house without my wallet and identification," it should be sufficient to proceed to verbally provide the LEO with the requested information.
I should have been more specific, I suppose. I know that if an LEO has PC, then he may demand to see an ID. But I was speaking more along the lines of something like this.
You are looking at a display window of a few stores in a strip and an officer sees your gun as your shirt rides up or you are carrying openly (pick the situation). He strolls up, initiates contact and then asks to see an ID. Not a permit, but an ID. Do you show such or do you wish him a pleasant day and move on? Or perhaps just say, "If you don't mind, I'd rather not present an ID"?
Keep in mind, he doesn't even have RAS concerning your behavior at this point.
See denner's answer, and mine, immediately previous to this question: It depends upon the state you're in.
Originally Posted by SouthernBoy
Were I in a "don't have to show" state (like Washington), I'd ask (very politely and nicely), "Why do you want to see my identification, officer?"
If he/she says that it's because my pistol was showing, I would voluntarily comply, adding my carry permit to the presentation. But then, I'm a polite kind of guy.
Once, when I was young and stupid, I was walking home late at night and I was hailed by a Los Angeles automobile-patrol officer, who said, "Hey you! You!"
Without stopping, I told him, "I'm sorry, officer were you talking to me? I didn't understand that, because my name is not 'Hey you!' My name is 'Excuse me, sir.'"
He then said, "OK. OK. Excuse me, sir. Where are you going, this late at night?"
So I stopped, consented to an interview, and showed him where I was living: within two houses of where he'd stopped me.
Yes it does depend upon which state in which one lives. In mine, one is not required to carry or show an ID upon request in a casual encounter. As for me, I would probably say something along the lines that you covered, but I'm not so sure I would present an ID. I suppose it would large depend upon the situation, the officer's attitude, and my perception of the encounter. I have only been approached by one LEO in the entire time I have been carrying a sidearm on a regular basis (18 1/2 years). It was a MWAG call in a high end grocery store (I was OC'ing that day) and it was VERY obvious that the officer thought his having to make contact with me was a joke. He was actually embarrassed and asked perhaps three simple questions which took maybe 90 seconds. Then he, I, and the cashier joked a little and he left. He never asked for an ID or even a name. It was obvious that he felt he was wasting his and my time.
Originally Posted by Steve M1911A1
I don't like the idea of an LEO just up and asking to see an ID. The first thing that comes to mind is "Your papers pleeeze" (think WWII Germany). I just don't like my employees (public servants) disturbing my peace. And there is this. What if someone is out and about without an ID, I do this at times in my town, and an LEO asks to see one? You don't have one so you can't show one. How does this work in states where you must present an ID when asked?
I have been out and about in New York State without my identification, and I've done it without fear or apprehension.
Originally Posted by SouthernBoy
Having grown up in New York City (ages eight through 19), I know that children there do not carry state-provided identification. I also know that, when asked by a cop, the satisfactory answer was: "My name is _____, my address is _____."
In other words, polite coöperation was—and still is—an excellent substitution for absent identification.
If a cop really wants to hold onto you, he will always be able to find an excuse. For instance:
In California, where I lived from age 19 through 62, it has for a long time been illegal to drive a vehicle that is not carrying a fire extinguisher. Does your car or truck have one? Mine never did.
At the same time, it was also illegal to carry a concealed tire iron—the long, pry-bar kind, with a socket at one end—in the trunk of your car, since it could be used as a "concealed weapon." Does your car or truck have one? Mine always did.
Being a Jew, I am very sensitive to the "let me see your papers" issue. I have to say that, so far, no American cop—not even a New York City cop—has ever given me cause to feel apprehension or fear on that issue. And that includes wandering around the deep South during the 1950s.
I've only had one bad run-in with an LEO in my life and that was around 1992 or '93. I was the Athletic Booster Club president at my daughters' high school and as such, was responsible for concession stand setup and operation during football and basketball games. I arrived at my usual early time to start getting the stand ready for a football game and saw police tape blocking off entrances to the field and therefore, the stand. I untied one end and drove through and when I got out to re-tie the tape a motor copy (motorcycle) came over a hill, yelling at me. I tried to tell him who I was and what I was doing but he wouldn't have any of that. Things quickly turned into a shouting match between both of us with me yelling at him to get a certain officer on the horn to verify my story. Realizing he was getting nowhere, he finally did contact the officer I told him to get and he then backed off. But he was not at all happy. I was because I won.
I don't like the idea of an LEO stopping me for some random reason and asking for an ID. If he can't articulate RAS, then I am going to be on my way. Then again, I don't exactly look like some criminal type with a BOLO out on me. As long as they leave me along, I'm happy. The one's in my small town are fine and are quite friendly.
As it turns out a recent US Supreme Court decision basically states that you should plead the 5th amendment since not pleading it and remaining silent might just be used against you........ This includes pleading it before(during questioning) your Miranda Rights are read to you.......
Granted some judgement should be used before exercising the 5th.... However, when it doubt exercise it..
Your Miranda Right to Silence Might Now Get You Into Trouble - USA Carry
The article includes a link to the actually supreme court ruling.......
Originally Posted by Steve M1911A1
Technically, you do not, 'PLEAD the Fifth'; you TAKE it, instead.
plead - definition of plead by the Free Online Dictionary, Thesaurus and Encyclopedia.
The moment you say, 'I plead, ....... ' there is an implication of guilt. The finest example of how to behave when questioned by a, 'higher authority' is the example The Lord Jesus Christ set at, both, his own inquisition and trial. When interrogated Christ replied (in words to the effect), 'You say that I have, ....... '; and, when pressed on an issue, Christ responded, 'If you have evidence against me then present it'.
A police officer does NOT require, 'probable cause' in order to stop, or compel you to obey his (lawful) orders. Instead what he needs is, 'reasonable articulable suspicion'. Legally, 'RAS' is something less than probable cause.
Welcome to Legal Update
What it comes down to is, in theory, 'You can't fight city hall'. Most people tend to, 'start talking' rather than have their lives interrupted by a trip to the county jail; but, a better attitude might be to accept going to jail on an apparent violation of the law rather than to help the, 'other guy' to build a case against you, 'out of your own mouth', so to speak.
The fundamental concept is that, BASICALLY, all people are dishonest; and, consequently, too easily compelled toward certain specific conclusions by their own self-projected suspicions and concomitant emotional bias.
Years ago I read an article about how Jewish Mossad agents were trained to respond to even the most strenuous interrogation. Everything comes down to these fundamental psychological concepts: (1) Do NOT cooperate in your own arrest and detention; and (2) when questioned, in even a minor degree, SHUT UP AND VOLUNTEER NOTHING. This psychological technique even applies to the simplest of questions like, 'Do you want anything to drink?' or, 'Is your cell too cold?'
SHUT UP! If you want a drink, ask for one. If your cell is too cold, request another blanket. When I studied the psychological reactions of American prisoners at, 'The Hanoi Hilton' one thing stood out: It is NOT possible to argue, successfully, with a thoroughly distracted mind. PRAYER is, in psychological terms, simply another form of frequently viable distraction; and many American prisoners actually did resort to the use of personal prayers during their incarceration.
For myself, in my world, if I am stopped by the police and asked for (whatever) forms of identification I will promptly comply. The last time someone in my family was stopped by a traffic officer the question presented to the officer was, 'As far as I know I wasn't doing anything wrong.' 'May I ask why you stopped me?' The officer's reaction, ....... ? He walked away from the car window, ID papers in hand, without answering a single word; AND he was entirely within his own rights to do so!
TAKE A LESSON! While this officer's behavior might be considered to be rude and thoroughly inconsiderate: If this technique works for law enforcement teach yourself to make it work for you, too. Do NOT actively cooperate in your own arrest or conviction. The standing admonition: DO NOT TALK TO LAW ENFORCEMENT remains valid.
Dont Talk to Police - YouTube
Anytime you believe yourself to be unfairly treated remember one of Christ's promises: 'But I say unto you, that every idle word that men shall speak, they shall give account, thereof, in The Day Of Judgment.' (Matthew 12:36) Spiritually speaking there is no, 'get out of jail free' card. Sooner or later we, all, answer for the things that we both say AND do.
Me? I'd rather spend: a night, a week, whatever, in the county jail before cooperating in my own conviction for anything - Even jaywalking. 'If you have evidence against me for anything that I may, or may not, have done, ....... present it!'
Don't do something legally, dialectically, and psychologically stupid like attempting to, 'plead the Fifth'. As I said, technically, you don't, 'plead the Fifth'; you take it, instead.
(Oh, yeah, we beat the ticket!)
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