Afternoon, Officer!

I have a massive problem with authority. I've been told so many, many times in my life, by very many people, and they've all been right, but not in the way they think. The truth is that I think that we, as a society, have an entrenched problem with authority, and it's long past time we learned how to deal with it. Those who have been watching this space should easily understand why.

One of my favourite words is, and has always been, 'recalcitrant'. It's not only a word that I think should be embraced more widely, it's a behaviour that's absolutely essential to true freedom.

I'm not just fundamentally resistant to authority, though. I distrust the very notion of authority; the idea fills me with dread. This should be the default for anybody who cares that we live in a free society. Every time we accede to authority, we cede a little more freedom. This is a problem for all sorts of reasons, but chief among them is that we get into the habit of simply acceding, even where the authority is merely perceived; where it does not, in fact, exist.

Even only on purely logical grounds, this is a serious issue. In fact, there's a well-understood informal logical fallacy dealing with it, with attendant Latin moniker and everything; the argumentum ad verecundiam, or appeal to reverence. This is a form of the genetic fallacy in which something is accepted as true based entirely on who said it. The difficulty should be reasonably apparent with just a moment's thought; even experts can easily be wrong. Just ask Newton.

Out in the real world, accession to perceived authority can cause even more serious problems, though, and that's really what the following is intended to address.

This post is the first in what's going to be a series, offering advice on how best to interact with authority, both genuine and merely perceived. The advice should serve only as a pointer to some general principles, and should not be taken as authoritative, but should be seen only as a guide in how to think about authority.

We've all had encounters with law enforcement, I'm sure. In any encounter, among the very first things any police officer will do is attempt to identify who they're talking to. For the most part, we simply give them what they ask for, but should we? I'm sure that most of us just assume that we should, on request, identify ourselves to the police whenever they ask. We might even assume that we have a legal obligation to do so. I want to challenge that view with some typical laws from two countries, and then to examine some of the reasons why it's a problem to unthinkingly give in to perceived authority beyond merely the importance of asserting our rights.

Let's start with the US, where the law is as clear as it can be.

The most important legislation relevant to this topic is the Bill of Rights, the amendments to the US Constitution dealing with what the government can and cannot do with regard to its treatment of its citizens (or, indeed, anybody within its borders; this distinction will become important later).

Let's start with the 5th amendment, because it's easily the most familiar clause in the bill of rights, though it's also clear that it isn't very well understood by many. The text reads thus:

 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 offence 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.

The most familiar part of that is, I'm sure, the bit about being compelled to be a witness against oneself. That's the bit that's encoded in the famous 'Miranda'* warning you receive when you're being arrested. The key statement of the Miranda warning is, 'you have the right to remain silent'.

In preparation for this piece, I've watched hundreds of hours of interactions with law enforcement, and it's perfectly clear that not only do very many of the public not understand what this means, but also that many law enforcement officers either don't understand it, or are deliberately misrepresenting it in order to get what they want. Under normal circumstances, I'd be inclined to apply Hanlon's Razor, but experience tells me that it's far more likely malice that drives it, and they really are just lying. We'll come back to that.

The point here is that there's a huge amount of misunderstanding about Miranda and the right to remain silent. I've seen many, many instances wherein a citizen asserted their right to remain silent, only to be told by police that they only have that right when they've been arrested.

For the avoidance of doubt, here's where the disconnect is:

It's certainly the case that Miranda only applies once you've been arrested. That's not the same as saying that the right to remain silent only applies once you've been arrested. The reason that Miranda only applies when you've been arrested is because what Miranda really deals with is what statements are admissible as evidence should any case come to court. It's basically a checklist for a law enforcement officer to ensure that he's meeting the tests of admissibility for the evidence he's gathering. If a police officer asks you a question and you incriminate yourself prior to arrest, Miranda doesn't prevent such incriminating statements from being presented in court, whether or not the officer has advised you that you're free not to answer. It does NOT mean that you only have the right to remain silent once you've been arrested. The right to remain silent is absolute. The only difference is that, once you've been arrested, anything you say in response to a direct question cannot be used in evidence against you unless you've been advised that you don't have to say anything. The bit about response to a direct question is important. Any statement you make freely, whether mirandised or not, is admissible. Only statements made in response to direct questions fall under Miranda.

I've also seen instances post-arrest wherein it was police officers, once the arrestee has invoked the right to remain silent, objecting when the arrestee speaks. "I thought you were remaining silent..." In reality, this is a childish intimidation tactic by the LEO (Law Enforcement Officer) and one which I really needn't address here, but I will anyway, because it's trivial to dismiss. The simple fact is that your right to remain silent is meaningless unless it also includes the right to speak (a right protected by the 1st Amendment). In law, you're free to waive and re-invoke your right to remain silent at any time. Any good lawyer will advise you of which questions not to answer, as they'll generally have a better idea than you of what's likely to incriminate you (in fact, any good lawyer should tell you to keep your mouth shut in every single case and at all times; more on that shortly).

The second important piece of legislation is alluded to in the fifth amendment, in the clause about not being deprived of liberty without due process of law, but it also has its own provision in the preceding amendment, that being the fourth:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The effect of this amendment is perfectly clear, yet it seems not to be understood by many, as it's routinely violated by LEOs. The key term in there is 'probable cause'. Many of the encounters I've viewed have played fast and loose with this notion. For example, very many of the featured LEOs have used all sorts of flimsy excuses to detain people that don't even approach probable cause. There are swathes of instances in which their reason for detaining somebody amounts to 'we had a call' or the ever-ubiquitous 'suspicious behaviour', even in instances in which the behaviour in question is a perfectly legal or, worse, constitutionally protected activity. The police receiving a call does not constitute reasonable suspicion under law, and any 'suspicious behaviour' must be suspicion of something. Most importantly, no lawful activity can be deemed suspicious for the purpose of detention or arrest.

It's worth noting that there are critical distinctions between detention and arrest. For the former, known as a "Terry" stop, the law varies from state to state. In all jurisdictions, however, one critical component must be in place; reasonable, articulable suspicion (RAS) that the detainee is, has been, or is about to be engaged in illegal activity. This is true even in so-called 'stop and ID' states, contrary to popular belief, which means that, unless RAS is in place - and articulated - there is no requirement to provide identifying information. That is, even in such jurisdictions, a detention must be 'lawful' in order to compel a detainee to identify themselves and, without RAS, no such stop is lawful, and can only amount to a consensual stop, which you have the right to terminate at any time. The details of what information must be provided again vary between jurisdictions but, in most, name or name and date of birth is sufficient to fulfill legal requirements.

There is an issue with the requirement to provide such information, even once arrested. The Supreme Court has ruled that providing biographical information doesn't violate the Fifth Amendment on the basis that such information cannot be used to incriminate, but this is hugely problematic. We're going to be returning to the Fifth amendment shortly, as indicated much earlier, and this is going to be an important point to look at. This is going to amount to a contradiction in law (whether detained or arrested), as we'll see.

So, detention must be based on RAS, but what about arrest? That's where we come to another critical term; probable cause (PC).

PC is, like RAS, a standard of proof (properly evidence, but that's a technical discussion in epistemology for another time), but it's much stronger. RAS can be based on something really quite flimsy, but it must be based on something. For example, a moving violation (minor road traffic offence, for UK readers) is sufficient for such a detention but, in most jurisdictions, not sufficient to require identification (although pretty much all jurisdictions have laws that require ID on a traffic stop, which renders that situation slightly different).

It's worth noting that PC can arise during a Terry stop. For example, a Terry stop allows a LEO to 'frisk' the detainee for weapons (surface search only) without violating the Fourth Amendment right that protects against unreasonable search and seizure. If, during the course of that frisking, the LEO discovers something that is a clear indicator (drugs, weapons, etc), that can constitute PC, and is sufficient for arrest. Once arrested, it's a criminal offence to fail to identify, and this carries its own charge and will, in almost all cases, result in a stiffer sentence for the offence for which you've been arrested.

As for being searched, this again requires lawful arrest. In a detention, you may consent to being searched, but there's no requirement in law to consent to this. Even where consent is given, it can be withdrawn at any time. Any evidence obtained during an illegal search, whether the search is conducted without consent or after consent is withdrawn, constitutes 'fruit of the poisonous tree' (including any secondary information resulting from investigation following from evidence thus obtained) and is inadmissible in court.

To come back to the earlier point about talking to the police, any good lawyer should tell you categorically that you should never, under any circumstances, talk to the police. It simply can't do you any favours. It's right there in the Miranda statement:

Anything you do say can and will be used against you in a court of law.
Note the operative words there; can and will.

There is no circumstance in which anything you say to a police officer in any circumstances will be used in your favour in a court of law. The prosecution would object that any such testimony by a LEO constitutes hearsay, and he'd not only be right, the judge would sustain the objection without batting an eyelid. No prosecutor who wasn't a complete incompetent would ever allow a LEO testifying for the prosecution to utter a single exculpatory word.

There's a famous quote by Justice Robert H. Jackson, Supreme Court Justice, distinguished prosecutor, and famously Chief US Prosecutor at the Nuremberg trials, who said:

Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances§
There's a wonderful video, available on Youtube, of a lecture by Professor James Duane, law professor at Regent Law School, Virginia Beach, wherein he details a huge list of reasons why speaking to LEOs is always a bad idea. It's a real eye-opener:

There's also a lovely article penned by the professor about some of the issues surrounding the way the Fifth Amendment is invoked on the advice of counsel.

It's worth noting that I've emailed the professor asking his thoughts on the Hiibel case, as I think there might be an incongruence between the ruling on the Fifth Amendment in that case and the intent of the Amendment as discussed by Prof. Duane. I'll update this post if and when he finds time to give his opinion.

I'm going to leave this here, except to provide some sources of interest to anybody who wants more information about this topic than I've provided here, specifically some good channels to be found on Youtube detailing encounters with US LEOs by people with experience in such situations, as they provide a good guide to how to deal with them, but also show some of the risks involved in any approach.

The Battousai (this one is of particular interest, as he won a landmark ruling in the courts directly relevant to the subject matter)¥
News Now Houston (former Federal LEO)
Johnny 5-0 (very funny; don't forget to say 'Sshhh!)
James Freeman (my personal favourite; not for the faint-hearted, but very funny)
Rights Crispy
CFW Carolina in Fort Worth (very, very funny)
Tom Zebra

There are many, many more, but these are just some of the ones that, to my mind, have the best approach.

Warning: Before you engage in any of the activities shown on these channels, make sure you know the specifics in your jurisdiction. If possible, find others who are engaged in freedom audits in your jurisdiction for further advice. Most of them will come and do audits in your area, if they're close enough, and take you along with them. It's a great way to learn.

In the next post in this series, I'll be looking at UK law in the same context, as well as talking in more depth about why the default should, in every case, to challenge the purported authority upon which any questions are asked by law enforcement.

* Derived from Miranda V Arizona 1966.
† Terry V Ohio 1968
‡ Hiibel V Nevada 2004
§ Watts V Indiana 1949
¥ Turner V Driver 2017

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