Or: "Honey, they shrunk our rights."

Remember that horror/sci-fi flick from the late Fifties - the Incredible Shrinking Man?  A guy and his wife are out to sea on their cabin cruiser and they pass through a radioactive fog from a hydrogen bomb test.  He is on deck and she is below, so she is not affected.  He is also exposed to insecticide a few days later and he finds that he has begun to shrink.  This goes slowly, so that first his clothes do not fit, then he becomes a news item at three feet tall.  When he is six inches tall, he moves into a doll's house.  At that point, his cat becomes a real danger, chasing him when he is out of the dollhouse.  He gets away, but his wife thinks he has been eaten and the door to the cellar gets closed, trapping him with other formerly smaller threats, such as a spider, as he gets even smaller.

Well, you might not realize it, but we are all experiencing a dangerous shrinking.  We face new dangers as our rights are exposed to the toxic effects of the rightward shift of our court system.  As a consequence of this slow, but accelerating, disappearance of our legal radiation shields, I have simplified the general advice I give about how an individual should act during encounters with law enforcement.  My lectures (to clients, students, family, and friends) about such encounters used to be more detailed and nuanced, but after certain recent cases dealing with the various protections supposedly guaranteed by the Constitution (and the amendments to it known collectively as the Bill of Rights), I have decided that guidelines for such situations should be simpler. 

The most notable and disturbing of those recent cases is Berghuis v. Thompkins, decided by the United States Supreme Court last June.  The holding (as summarized on SCOTUSblog):

The police are required to stop questioning a suspect once he invokes his Miranda right to remain silent. In this case, the Court held that a suspect did not invoke his right to remain silent by simply not answering questions. Instead, a suspect must unambiguously invoke his right to remain silent before the police are required to end their questioning.

This was another one of those 5-4 decisions we have come to expect from the Supremes.  Their ruling overturned the 6th Circuit's reversal the district court's denial of habeas corpus relief.  Thompkins, the defendant in the original state court prosecution, had refused to sign acknowledgment of rights form and remained silent during nearly three hours of custodial questioning by the police.  Almost three hours into the interrogation, with no statement obtained, one of the police detectives decided to play the religion card by asking Thompkins if he believed in God and if he prayed to God to forgive him for shooting that boy down.  At this point, Thompkins, through tears, answered “yes” to both questions, but he refused to write this down. These two “yes” answers were offered in evidence against him. The questions were asked after Thompkins consistently exercised his right to remain silent for at least two hours and 45 minutes.

To see the real significance and irony of this decision, I will direct you to an unlikely source - the FBI.  Take a look at this headline on the FBI's online version of its Law Enforcement Bulletin: 

"You Have to Speak Up to Remain Silent - The Supreme Court Revisits the Miranda Right to Silence"

This article, by Jonathan L. Rudd, J.D., also refers to an earlier instance of Supreme Court diminution of our rights cited by the Court in Berghuis v. Tompkins:

The Court noted that, unlike its earlier ruling in Davis v. United States regarding the invocation of the Miranda right to counsel, it never had defined whether an invocation of the right to remain silent must be unambiguous. In Davis, the defendant initially waived his Miranda rights and was interrogated for 90 minutes before saying, "Maybe I should talk to a lawyer." The Court held that if a subject is unclear, ambiguous, or equivocal in requesting a lawyer, officers can ignore the reference and proceed with the interrogation.

So now you have to speak, and speak clearly, to keep from speaking.  And unambiguously say you want a lawyer, too.  What's next?  A kind of literacy test like the requirements for voting under Jim Crow?  Perhaps, in the future, we will have to clearly quote each amendment upon which we seek to rely.  And all of this discussion assumes (clearly contrary to frequent real-world police practice) that the versions of these interrogations presented in the various suppression hearings were completely accurate and truthful, with no shading in favor of the police.

As I mentioned above, those cases are only part of the accelerating glacial melt.  Another good example (from twenty years ago) of the lack of real world street sense in the Court's treatment of our rights is Florida v. Bostick, 501 U.S. 429 (1991).  Bostick was on a bus bound from Miami to Atlanta.  When the bus made a stop in Fort Lauderdale, two sheriff's department officers, part of drug interdiction task force, boarded. They approached Bostick, and asked him for his ticket and his identification. They told him that they were narcotics interdiction officers, and asked to search his luggage. They also told Bostick that he could refuse them permission to search his luggage. The officers found cocaine and arrested him.  (Note: this version of the facts relies on the testimony from the officers, but even assuming an absence of what Professor Dershowitz calls "testilying," it is still hard to reconcile the Court's decision with the nature of real-world police encounters).  The majority (opinion authored by Justice O'Connor) found that there was no Fourth Amendment violation, since Bostick was free to leave, but Justice Thurgood Marshall's dissent cut through this fairytale portrayal of reality, noting that it was obvious that Bostick was not, in fact, free to terminate the encounter with the police. "Rather than requiring the police to justify the coercive tactics employed here, [Justice O'Connor] blames respondent for his own sensation of constraint.... Thus..., because respondent's freedom of movement was restricted by a factor independent of police conduct - i.e., by his being a passenger on a bus - [Bostick] was not seized for purposes of the Fourth Amendment."  The majority's concept of bus travel by us lower classes reminds me of George H.W. Bush's moment when he did not know how a supermarket checkout worked, or how much the price of a carton of milk was (or his son's inability a decade later to say how much a gallon of gas cost).

In light of this erosion of our rights, here are my new, short and sweet rules for meetings with the police:

                1.  Unless you are the one who called law enforcement, you should not volunteer information. Even in a situation where you call, you should be careful - I have seen too many cases where a victim was the one who called the police and ended up as a defendant The right to remain silent (or to not be "compelled in any criminal case to be a witness against himself") guaranteed by the Fifth Amendment protects both the guilty and the innocent.  Even if you did not do it (whatever it might be, according to law enforcement or your accusers), if you talk to the police, you may inadvertently provide ammunition for a prosecution against you.  For example, you might not know about a crime that recently occurred in your neighborhood.  If the police asked you about your whereabouts on "the night in question," you would not know that your answer might put you in the vicinity of crime at about the same time as the crime was believed to have been committed.  Your answers might provide evidence of opportunity, or motive, or some other detail that could be used against you.  Also, if you talk to the police, you could give them an opportunity to tell your story their way later.  As the tee shirt my office manager sometimes wears says, " You have the right to remain silent; Anything you say will be misquoted, then used against you."

                2.  Regardless of the locale, your answer to police questions should be limited to: "Officer, I am free to go?"  Whether you are subjected to a motor vehicle stop, a police visit to your home,  or a request to stop and talk on the street, your response to almost any police inquiry should be "am I free to go?"  If the officer says, "yes," then you should go on your way (carefully and within the speed limit, if you are in a vehicle).  If the answer is "no," or is evasive, or continued questioning, or some other refusal to respond, then you should ask another question: "Officer, am I being detained?"  If the answer is in the affirmative (or if you get no direct answer), then you should say, "I do not want to answer any questions without a lawyer."  This effectively asserts your Fifth Amendment right to remain silent and your right to an attorney's assistance.  If the officer asks to look in your pockets (or tells you to empty your pockets), or asks to look in your vehicle or home, than you should say, "I do not consent to any searches."  The same applies to any purse, briefcase, backpack or other container in your possession, custody or control. 

                3.  Be polite.  Be very polite.  You may have every reason to scream and yell, but do not do it.  You may be suffering verbal abuse and other violations of your rights from the officer(s).  Do not retaliate.  Do not resist.  Do not struggle.  This is not to say that you would be in the wrong, if you fought violations of your rights on the spot, but you should do the cost/benefit analysis, and understand that the cost to you of fighting at the scene of such an encounter, either verbally or physically, would be much higher (perhaps even deadly), and the benefit to you would be fleeting, at best.  Save the fight for later, when the situation will certainly be better for you and you may have strong allies, such as a competent attorney.

                4.  Do not let the police intimidate you or fool you into waiving your rights.   They are legally (if not morally) allowed to use deception and tricks, as long as they do not mislead you about your rights.  Most of us are familiar with some of these lies and tricks

through the depiction of police procedure in movies and on TV.  Who does not know about the Good Cop - Bad Cop game?  (You might be surprised at how many otherwise intelligent people fall for this).  Another example is the ploy where the police separate multiple suspects and falsely tell each that one or more of the others has already confessed, implicating them ("the train is leaving the station, you better get on board!").  And watch out for the biggest fib of all - "If you cooperate and tell us everything, it will go easier on you."  Easy targets get hit fastest and hardest.  If cooperation is advisable, then you should do it with the help of an attorney.  Too many police officers believe that breaking promises made to people they consider criminals is no sin.  Also, they can promise anything and a prosecutor can later say that the police had no authority to make deals, so you are out of luck.  The end does not justify the means, but much of what passes for S.O.P. in many police departments is results oriented.  And some officers don't mind hammering a square peg into a round hole, especially if it would take some effort to find a round peg.  It is a matter of choosing the easy path, rather than the just path. 

Here's the drill again:

Police question.  Answer with a question: "Officer am I free to go?"

If the answer is no, or there is no answer, then you ask:  "Are you detaining me?"

If the answer is yes, or there is no answer, you say:  "I do not want to answer questions and I want an attorney."

And finally, do not agree to searches of your person, vehicle, home, or belongings.  Always say: "I do not consent to searches."

For a further excellent discussion of these issues, watch the videos from our friends at Flexyourrights.org.  You can order their DVDs on their site, or, if you don't have the money, watch the videos on YouTube ("10 Rules for Dealing with Police," and the clips from their earlier DVD, "Busted"). 

Sven D. Wiberg is an experienced criminal defense attorney with Wiberg Law Office (www.nhcriminaldefense.com) located in Portsmouth, New Hampshire.  Contact us today for free information.