Snell: How to be an American: Know your rights

Barry Snell

Veishea is coming up, and if you’ve experienced one before, you know just how busy it is around here — including for the police.

During Veishea, the police have every reason to be on heightened alert, and they stop and talk to people they might not otherwise have had desire to speak to at any other time.

People have been murdered during Veishea after all, not to mention we’ve had riots and scores of other disturbances ranging from music played too loudly to fights and sexual assaults.

As the chances you will have contact with the police for some reason will be higher this week, let’s take some time to review our rights. Mind you, I’m not an attorney (yet), but I do have experience in law enforcement prior to coming to Iowa State as a student. So take this advice for what it’s worth, and consult an attorney if you have questions.

The very first thing to remember is that you have the right to remain silent. This is protected by the Fifth Amendment and further protected by the Miranda warning that everybody knows. You are under no obligation to speak to police for any reason whatsoever.

The Supreme Court has ruled that police may ask for your ID and you may be required to give it to them or tell them who you are, but beyond that, you don’t have to answer any questions. The police are allowed to detain you temporarily, to ascertain your identity and ask some basic questions for safety and general pre-investigatory reasons.

If they have a reasonable factual basis to suspect you are up to something illegal, police may also noninvasively pat you down to determine whether you are carrying a weapon. During this pat-down, the police may not dig into your pockets or reach under your clothing unless they feel what may be a weapon, after which they have the authority to identify the object. These types of stops must be brief, and the police may not detain you any longer than reasonably necessary without further suspicions or cause.

You have the right to an attorney. This right is protected by both the Sixth Amendment right to counsel for criminal proceedings and the Miranda protection to consult with an attorney after you have been taken into custody but before you have been indicted. The key here is the definition of “custody.”

The Supreme Court defines being in custody as being deprived of your freedoms in any significant way. In other words, if you cannot stop the police contact and leave, you are in custody even if they don’t expressly say so. Your perception is important in matters of custody, however.

If you’re surrounded by half a dozen officers, even if they think you’re free to go, the court considers that a coercive environment in which you may feel your freedom to walk away has been deprived because of the overwhelming presence of the authorities. Therefore, you may be perfectly OK to assert your rights, at which point the police either need to let you go or arrest you.

Desires to invoke your right to remain silent or to speak with an attorney must be clearly and expressly stated. If you’re indecisive, and say, for example, “I wonder if I should talk to a lawyer,” it doesn’t count and above all, don’t count on the officer asking for clarification. Just be definitive and say, “I want to speak to an attorney,” or “I do not wish to speak to you at this time.” If you perceive you need to invoke one right, you probably ought to invoke both.

If you assert your rights, be prepared to continue asserting them, no matter what happens. The police have been trained well and the courts give them a wide berth of latitude. So assert your rights often and as necessary. Do so even if you don’t think it’s necessary because it can’t possibly hurt.

Now, you may be thinking you’re a good person and you won’t ever have to worry about being questioned by the police, or worse, getting arrested. However, that’s definitely not the case. The police officers may not be your friend, even if they act like it. They are part of an investigative body, a tool for the prosecution. Remember the Miranda warning? “Anything you say can and will be used against you.” Against you, not for you.

Even if you’re completely innocent, exculpatory evidence that may help you that was obtained during police questioning may be considered hearsay and thus not allowable evidence at all. You also should remember, even if your rights have been violated, if you make the mistake of wanting to testify on your own behalf, what you say may well be used to impeach your credibility. So shut your mouth when dealing with police officers.

The police are professionals at what they do. In their investigatory capacity, their very job is to make you say and do things they can use against you for the purposes of convicting you. You are an amateur, with little or no experience in dealing with the police. Who do you think is going to prevail? Even if you are completely innocent, here’s but one example as to how you can go wrong:

Let’s say some guy gets beat up at a party at midnight and the suspect flees. The police believe you know the victim and may have been around, so they ask you about it. You went to another party at 11 p.m. though, so you weren’t there when the fight happened an hour later. However, another one of your friends saw you there earlier and thought you were still around for the fight. You tell the police you were gone by that point, but your friend already told the police you were there. Now you’re a liar and a suspect, congratulations.

There are infinite possibilities, so just remember: When the police are around, even if you’re innocent as a newborn baby, keep your mouth shut.

The police have lots of dirty tricks. They can lie to you, they can pretend to be your friend, they can phrase questions as statements, you name it. One dirty trick the police were fond of in my neck of the woods was going to someone’s house where there was partying and drinking and asking to speak with those in attendance. At that point, the subjects were on private property and perfectly legal. However, the officers would ask a person to come out to the street where it was quieter to talk. Once the subject stepped foot off the property and onto city property, the police would arrest them for public intoxication.

Or assume you get pulled over and the police say something like, “I’m going to search your vehicle now, OK?” That sounds an awful lot like a statement of fact that you just need to go along with, but they’re really asking for your permission. Do not, under any circumstances, give the police permission to search your vehicle. This is your Fourth Amendment right.

If the police have probable cause, they can search your vehicle anyway. If they have to ask, they’re just fishing. Can you absolutely, positively guarantee you have nothing to hide in your vehicle? There are literally tens of thousands of state and federal criminal laws on the books. Do you know what they all are? Would you bet your life you’re not violating any of them or that one of the passengers in your vehicle doesn’t have drugs in their possession?

No matter your innocence, the police can always find something you’re guilty of. Always say no to searches of your vehicle and your home.

In the end, the Fourth, Fifth and Sixth amendments and your Miranda rights are not shelters for the guilty. According to the Supreme Court, they exist “to protect the innocent who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness … may provide the government with incriminating evidence from the speaker’s own mouth.”

Want to be an American? Know and assert your rights, and take care of yourself this Veishea.