AlterNet Comics: How Cops' Rights Differ From Everyone Else's
January 28, 2015
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miranda rights
4 'Magic' Phrases to Use if Cops Stop You with Pot
November 21, 2013
This article originally appeared on Ladybud.com.
If you use pot you are a criminal.
This is true [according to federal authorities] even in Colorado and Washington, where the feds continue to outlaw cannabis. This is also true in California and other states that provide medical protection. This means the police not only have the right, but the obligation to try and stop you (though state police cannot legally enforce federal law). Fortunately, you do not have to help them. The United States Constitution gives you rights that protect you during police encounters. It is the job of the police to find evidence of a crime. It is not your job to confess or help them. They get paid quite well, so please do not do their job for them. Your job is to do and say the right things to protect yourself and defend your rights.
During a police encounter, the best case scenario is you will be let go with a warning or simple citation. The worst case is, you or someone you love will get hurt. No one should be the victim of police brutality, but it happens. Cops are jumpy. They are trained to be suspicious. Do not make any sudden moves they can claim were threatening. Be polite and respectful, even if the courtesy is not returned. Remember, the police do not have the final word and while they may be able to harass, intimidate, and arrest you, the real fight is in the courtroom before the judge and jury. But you must actually survive the police encounter first before you can win the battle in court.
To win that court battle, your lawyer needs to be able to prove the police acted illegally and the evidence should therefore be thrown out. The goal is to get all the evidence tossed so that there is no case left against you. If you give police permission, your lawyer will not be able to argue they acted illegally and there will not be much s/he can do to defend you. This is why what you do and say are very important. Your lawyer needs you to say the “magic words.” These are words that limit what the police can do and will help your lawyer prove the police acted illegally.
The Magic Words
What are the magic words, you ask? The first magic words can set you free. Simply ask,
“AM I FREE TO GO?”
If they reply that you are free to go, then you are free to go. You may have to wait for the officer to finish the citation, but yes, you are free to go. If you are not free to go, then you must use the other magic words,
“I DO NOT CONSENT TO ANY SEARCHES,”
“I WANT TO REMAIN SILENT,”
“I WANT A LAWYER.”
You must use all of the magic words and use them in this order. You must memorize and practice the magic words. During a stop, the police will not always tell you your rights or help you understand them. In fact, they are trained to harass, scare, and trick you into giving up your rights. You have to be strong while they get in your face and insult you. They are even allowed to lie. Do not believe them. Say the magic words, follow police orders, and shut up!
How Do the Magic Words Work?
The first question, “Am I free to go,” clarifies if you are being detained or not. If you are being detained, the police cannot ask you questions without reading you your rights, just like on the TV cop shows. If they do not read you your rights, your lawyer can use this against them in court.
The second statement, “I do not consent to any searches,” is critical. The cops are not allowed to just search you for any reason. They have to meet certain requirements like having probable cause or a warrant. Even if they have a warrant, they can only search within certain limits. For example, if the warrant is for plants, they cannot necessarily search drawers. But if you give consent, you are giving permission to search everywhere. Never consent to any searches! It will never help you or get the cops to go easy on you. If they need consent then they have nothing else against you so don’t give it to them. If the police think they do not need consent, they will go ahead and search after you say the magic words. Stand out of the way and be quiet while they search. Maybe they find something maybe they don’t.
“I want to remain silent,” is one of the trickier magic words. The Supreme Court has declared that in order to use your right to remain silent, you must first speak up and say you want to remain silent. After you say it, the police are still allowed to continue to question and harass you. You must not speak up and if you do, you have to say “I want to remain silent,” all over again. For some reason, the Supreme Court thinks this is all very easy to do during a police encounter.
Don’t worry. The last set of magic words are here to help. When you tell the police, “I want a lawyer,” they are not allowed to talk to you again until you have a lawyer with you. If they do talk to you and you accidentally talk back, your lawyer will be able to throw it out in court even if you forget to say “I want to remain silent,” after you talk. Asking for a lawyer is the ultimate legal block against the police.You do not need to ask for a specific lawyer or worry about paying if you cannot afford it. If you are arrested, remain silent and wait to get bailed out. At your first court date you can ask for a free lawyer.
If a person says the magic words, but only cops can hear them, did they really say anything at all?
Yes! There are ways to prove you said the magic words even if there are no witnesses other than the police. It is becoming common for police to record encounters. Also more and more drivers are using dash cams. Bystanders and onlookers are also allowed to video record police encounters. Your lawyer can find these recordings and use them to help you. Most importantly, make it known as part of your public reputation that you would always use the magic words with police. Constantly tell your friends and family about the magic words and how they should use them too. Carry stickers, cards, and other items with the magic words. Wear t-shirts with the magic words. Make the magic words a part of your life.
What About Patients?
Police encounters can be especially confusing for medical marijuana patients. Why did you go through all that trouble to get the right paperwork if you have to remain silent and get arrested? Well, you don’t. If the police stop you, you do not have to tell them you are a patient, if you grow, or where you get your medicine. You do not have to tell them anything! Say the magic words and let the cops do their job. If and when they find your pot, they should also find your patient paperwork whether it is a doctor’s letter or state card. Tape the letter to the jar or put your patient card in the baggie. You do not want to have to talk and explain your patient status to police or ask to get your paperwork from your wallet. Let the police figure it out.
If the police ask you about your paperwork, you have to decide if you are going to talk to them. If they are trying to clarify and approve your paperwork, then maybe you want to answer their questions. If they disrespect your paperwork and ask you questions that don’t sound like they care about the law, maybe you don’t want to talk. You have to decide if talking will help or hurt you and it may not be so easy to tell. Once the police find your pot and know you are a patient, let them do what they are going to do, answer their questions if you think it will help, and then be silent. If you get a citation or are arrested, again your battle is in court and with proper documentation you should win.
A Final Caveat
The police cannot stop you for just any reason. They have to have evidence that a crime is being committed. That being said, the police stop people without any legal justification all the time. They stop people simply because of the way they look. This is called profiling. Racial profiling is rampant and young men of color know they can do everything right under the law and still get stopped. If you are profiled, it is a degrading experience, but it is one you can overcome by knowing your rights, using the magic words, and staying strong and silent. Once you are safe at home you can report the profiling to your local police watchdog organization or take official action against the police.
Remember, the goal of police encounters is to survive and stay alive!
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Watch: Jon Stewart Lambastes Constitution-Obsessed Fox News for Turning on the Constitution
April 25, 2013
On last night’s Daily Show, Jon Stewart seamlessly blasted Fox News’ sudden turnaround against the U.S. Constitution in the wake of the Boston Marathon bombing. The host went right down the nation’s Supreme Law, and picked out several rights that the constitution-obsessed Fox wants revoked for bombing suspect Dzhokhar Tsarnaev. Stewart started with the debate over reading the suspect his Miranda rights and questioned Fox hosts who didn’t seem to pay attention in government class.
“First of all, not reading someone their Miranada rights doesn’t mean they don’t have Miranda rights,” Stewart explained. “You have Miranda rights under the constitution. You don’t need to say them out loud for them to become real. That’s Beetlejuice.”
Stewart followed with a suggestion from Ann Coulter to try Tsarnaev as an enemy combatant, completely jettisoning the American citizen’s Sixth Amendment right to a fair trial.
“Yes, a civilian trial for terrorists is not going to work! That’s why Tim McVeigh, Ted Kaczynski, Ramzi Yousef and the Blind Sheikh roam our country from city to city singing medleys of original hits and . . . ,” Stewart said before getting corrected in his ear piece, “What’s that? Really? They're dead or in prison.”
Then the show producers played a clip of Sean Hannity calling for Tsarnaev to be waterboarded. Incredulous, Stewart issued a challenge, saying, “There goes the eight amendment ban on cruel and unusual punishment. Any freedom lovers want to take a crack at some of the lower one—your thirds, your fourths?” The audience would not be let down, as The Five’s Eric Bolling proposed the government wiretap mosques.
“Sure, illegal search and seizure? Done! The freedom lovers at Fox are jettisoning amendments like Han Solo dumping cargo to make the jump to light speed at the first sign of imperial cruisers,” Stewart continued. “Anybody can toss away the lesser known amendments. Only a true patriot can set a course straight for the first.” Good for Jon, The Five’s Bob Beckel wants to ban Muslim students from traveling to the U.S. given that “so many people hate us.”
“Yes, a religious litmus test for school enrollment…says Fox’s most prominent liberal voice,” Stewart observed. ““Holy shit! What’s left? A prohibition on the unmentioned personal rights in the constitution that are designated to the people?”
Ann Coulter answered, condemning bombing suspect Tamerlan Tsarnaev’s wife: “I don’t care if she knew about this. She should be in prison for wearing a hijab.”
“And down goes the ninth amendment! Down goes the ninth amendment!” Stewart shouted. “Ann Coulter doesn’t just want a police state. She wants a fashion police state.”
Is there any constitutional right that Fox doesn’t want to strike in the wake of Boston? That’s what Stewart wondered as he juxtaposed the 3,400 terrorism deaths in this country over the past 30 years with the nearly million gun deaths before playing a long montage of Fox personalities worshiping the right to bear arms.
“Yes, it turns out there’s only one amendment in our constitution’s pantheon that is exempt from statistical analysis or emotional freak-out-itude, and it is the second. So god help us if the Muslims ever decide to form a well regulated militia.”
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Eric Holder's Tinkering With Miranda Rights Is Dangerous Political Theater
May 19, 2010
Lost against the predictable hubbub about the predictable Kagan nomination, Attorney General Eric Holder announced last week that he will ask Congress to cut back on a decades-old constitutional protection for criminal suspects. He wants Congress to legislate an emergency "public safety" exception to the Miranda warnings that are given by police to suspects upon arrest to inform them of their constitutional rights. With some sharp liberal commentators endorsing the proposal, should progressives tone down their usual opposition to limits on criminal suspects' rights?
Not so fast. There is more to the Holder proposal than meets the eye. On the one hand, the proposal is likely to have little effect on the ground. But it is disturbing as a political concession. It is an admission that former Bush administration officials' framing of the debate over terrorism -- in which core constitutional rights are eroded without tangible gains in security -- continues to determine what's politically feasible today. Accepting this frame may be the path of least resistance today. But it robs the Obama White House of a durable, defensible position on civil liberties tomorrow, and thus invites the deepening erosion of our core civil liberties as a side effect of political point-scoring.
To understand the Holder proposal, it's helpful to know more about the Miranda warnings that police since 1966 have had to read suspects before questioning. The Supreme Court first demanded Miranda warnings as a way to protect suspects against police coercion that violated the Fifth Amendment right against self-incrimination. Until 1966, courts made case-by-case determinations of whether police had coerced suspects into false confessions. In the three decades before Miranda, two-thirds of the cases before the High Court involved the death penalty. Many came from the Jim Crow South. Yet because of the secrecy around the interrogation room, judges were placed in the impossible bind -- being asked to weigh the testimony of (often black) suspects against that of many (almost always white) cops, without knowing whether the suspect's testimony had been coerced. The result was massive underenforcement of the Fifth Amendment.
Miranda was supposed to fix that by ensuring that suspects could seek a lawyer before interrogation. Despite years of bitter tirades from police and politicians, the Miranda warnings stuck. In 2000, a seven-justice majority of the High Court, with then-Chief Justice Rehnquist writing, rejected as unconstitutional a federal statute seeking to replace Miranda warnings with the old all-things-considered test.
Holder and his supporters want the law to define by statute an emergency "public safety" exception. As they note, the Supreme Court in 1984 recognized an emergency exception to Miranda when "public safety" demands. But the so-called Quarles public-safety exception, they explain, focused on ordinary crime. The Quarles Court gave little guidance on how to deal with terrorism. And lower federal courts today are divided on now imminent a risk must be for the public-safety exception to apply. The Holder proposal, it is claimed, would bring clarity because, even if the law were challenged, the justices would defer to Congress's expertise and wisdom.
This logic is comforting but unsound. The first problem is that Miranda is a constitutional rule. The Court in 2000 was clear that it, not Congress, had the last word about its meaning. Even if Congress speaks today on exceptions to Miranda, the Court must still weigh in. Even if Congress passes a statute that allows FBI agents more leeway for "emergency" questioning, agents cannot be certain "un-Mirandized" confessions will not be thrown out in the courts.
Equally problematic is the premise, peddled by Representative Peter Hoekstra and others, that Miranda rights stop interrogations and thus pose a risk to security. Miranda's critics skate over the fact that the decision does not in fact ever prohibit questioning: It rather directs that interrogations without Miranda warnings cannot be introduced at trial in the prosecutor's central case. Critics who imply that Miranda stops questioning altogether are simply fibbing. If law enforcement chooses to keep questioning without a lawyer, Miranda doesn't stop them, even if it does direct courts down the road not to accept the resulting evidence.
Moreover, the Court since 1966 has lost no opportunity to weaken Miranda and to enable police to end-run it. So if a suspect is not "Mirandized," the prosecutor cannot use the answers in the so-called "case in chief," that is, the prosecutor's main case. But if the defendant chooses to testify, then the prosecutor can introduce the evidence so as to impeach him!
Physical evidence found as a result of the non-Miranda questioning can also be used. The Court has also signed off on tactics designed to circumvent Miranda. For example, the Court has said it's fine for police to interrogate without giving the warnings, get information and then give the warnings before pressing a suspect to repeat himself verbatim.
This is why the argument that a new law is needed to nudge the Court into giving police more latitude is misplaced. The justices already bend over backward to accommodate law enforcement, even when terrorism is not in the mix. It's close to frivolous to suggest that the federal courts would even exclude evidence based on a Miranda violation in a terrorism case. (In the one case in which a federal court of appeals in New York confronted this problem, it allowed the evidence in, despite the Miranda violation). Even without Kagan's likely pro-administration vote, the Court already tilts toward the state and against Miranda.
Furthermore, Miranda does not stop suspects from talking. Studies find an overwhelming number of defendants waive their rights and do talk. The ones who keep mum tend to have past felony convictions and experience with law enforcement. For this group, Miranda likely makes little difference. They know enough not to talk. Likewise, it's hard to believe that a determined and dedicated terrorist will decide whether to talk based on access to a lawyer. The Holder proposal and the Miranda debate to which it reacts, in short, is political theater with scant consequence for actual security.
Perhaps Holder knows this. Perhaps the proposal is proffered to divert attention away from even more harmful ideas, such as Senator Joseph Lieberman's misguided citizenship-stripping notion, which would treat being a suspect in a terrorism case as grounds to deprive a person of citizenship.
Whatever its animating spirit, the Holder proposal entrenches a deeply harmful political dynamic. It shows that this administration has accepted the terms of public debate on terrorism and national security framed by Dick Cheney et al. It shows a Democratic administration again shirking its responsibility to define the debate, and triangulating instead. (Remember how well that went during the Clinton years.) It shows we have failed to throw off the straitjacket of fear that has pushed us time and again into knee-jerk and foolish responses to terrorism, from trying to gut habeas corpus to invading Iraq. If this is all the Obama administration has to offer by way of a new politics of national security, we are in deep trouble.
Yet even in the narrow confines of the Miranda debate, the administration can do better. There is an alternative proposal that would improve both security and liberty: videotape all interrogations, whether with counsel or not. Taping has clear security gains. The CIA, recall, taped its interrogations of terrorism suspects in military custody. Now the Defense Department has indicated it will videotape too. Who now would be against ensuring the accurate transcription of what suspects say? But recording interrogations is also a good way to prevent illegal coercion. Recall the CIA's decision to destroy its tapes once it saw they posed a prosecution risk. The agency knew that the taping solves the original problem of competing accounts that Miranda was intended to solve. (And a new law would have to prevent such tampering, of course). Indeed, there’s some reason to believe it does so better than Miranda ever did.
The Holder proposal is a sideshow, but a dangerous one. If taping is not in the mix when actual legislative language is proposed, it's a good bet that what's at issue is politics, not policy.
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Swift Response to Times Square Plot Shows We Can Handle Terror Suspects Without Unconstutional Maneuvers
May 05, 2010
At approximately 6:30 p.m. on May 1, a Muslim street vendor in New York City's Times Square alerted a police officer to white smoke collecting inside an idling Nissan Pathfinder. By 7 p.m., the bomb squad had arrived, and the area was cordoned off. A mere 53 hours later authorities apprehended a suspect, Faisal Shahzad, aboard an Emirates Airlines jet bound for Dubai, just as it was about to pull away from the gate at New York's John F. Kennedy airport. Shahzad, who became a naturalized U.S. citizen last year, "is from a military family in Pakistan, where he spent five months before returning in February to his home" in Shelton, CT. According to law enforcement sources, Shahzad admitted to "training in explosives in the past year with Tehrik-i-Taliban Pakistan" in Pakistan's North Waziristan region and said he had been driven to terrorism by the recent killings of Taliban leaders in Pakistan.
EFFECTIVE LAW ENFORCEMENT WORK:
Fifty-three "
," New York City Police commissioner Raymond W. Kelly told reporters on Tuesday, referring to the number of hours it took for investigators to identify and apprehend the suspect. "The break in this case took place when a New York City detective was able to go under the vehicle and get the hidden VIN [vehicle identification number] number," Kelly said at a news conference in Washington yesterday. The VIN helped identify the original owner of the vehicle, which in turn led investigators to identify Shahzad. The government has also begun "
requiring airlines to check no-fly lists
much more quickly as a way to screen out terror suspects" after revelations that Shahzad was able to board an international flight even though his name was put on a watch list. Ken Gude and Brian Katulis of the Center for American Progress write, "
Conservatives often deride using law enforcement
and intelligence techniques against terrorists," but "the swift capture and arrest of the Times Square bombing suspect shows that
effective intelligence and law enforcement work
-- a component of successful counterterrorism operations for decades -- is a crucial part of an integrated strategy to keep Americans safe."
CONSERVATIVES' EMBARRASSING REACTION:
Though somewhat slower with their hysteria this time than they were reacting to the failed Christmas bomb plot last December, conservatives quickly amped up their rhetoric. Apparently under the mistaken impression that Mirandizing a suspect grants rights rather than informing a suspect of existing rights, Sen. John McCain (R-AZ) told radio host Don Imus, "
I think obviously that [Mirandizing Shahzad] would be a serious mistake
until we've -- at least until we find out as much information as we have, and there are ways -- legal ways -- of delaying that." Rep. Peter King (R-NY) expressed similar fears, telling Politico, "I hope that [Attorney General Eric] Holder did
discuss this with the intelligence community
. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he's an American citizen, but still." Some conservatives have gone even further. Sen. Joe Lieberman (I-CT) "
is planning to introduce a bill
that would allow the government to take away citizenship from Americans" who are associated with foreign terrorist organizations. Lieberman told Fox News, "I think it's time for us to look at whether we want to
to apply it to American citizens ... whether they should not also be deprived automatically of their citizenship and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act." While Lieberman's support for simply stripping Americans of their rights is troubling enough, he seems unaware that any method for doing so would inevitably add several layers of legal complexity, and not simplify the process as he apparently believes. Shahzad, "
a U.S. citizen, was properly and legally Mirandized.
" And, just like attempted Christmas bomber
, Shahzad "
is cooperating with investigators
and apparently providing good information." Having been properly informed of his rights under the law, the evidence that Shahzad is now reportedly providing will be admissible in court.
KEEPING THE PRESSURE ON:
While effective coordination between federal and local investigators resulted in the apprehension of the suspect, the fact remains that thousands of lives were saved by the suspect's own incompetence and sloppiness. The Wonk Room's Matt Duss wrote that, while "
counting on the stupidity of terrorists
is not a sufficient anti-terrorism policy ... there are a whole host of other tactics being used by the Obama administration to track and
put pressure terrorist organizations
," and it's fair to surmise that "these tactics and policies bear some measure of credit for the poorer players that extremists have been able to field lately." By tightening border controls and working more closely with allied intelligence agencies to track extremists, "the U.S. shrinks the pool of potential infiltrators, resulting in far slimmer pickings for terrorist commanders." It also makes training those infiltrators much more complicated and costly, resulting in cut corners that in turn result in botched attacks. Gude and Katulis write that "
, but this attempted bombing in Times Square may be a desperate reaction to the increased pressure the United States is putting on militant groups in Pakistan. The investigation will determine whether this was a lone, 'self-starter' militant or an individual connected to a broader network and plot.
" But the effective response thus far "demonstrates that if we respond in the right way
-- acting without overreacting -- our country can move forward effectively and keep Americans safe without compromising on the ideals and principles that make our country strong."
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