Quantcast

5th Amendment and Duty to Inform

Discussion in 'Legal' started by War Squirrel, Feb 25, 2020.

  1. War Squirrel

    War Squirrel Member

    Joined:
    Nov 12, 2009
    Messages:
    209
    So I was thinking about SC's "duty to inform" statute.
    When stopped by police and you are carrying a firearm pursuant to state law and while in possession of a CCW permit, you must inform the officer of your armed status.

    How does that jive with an individual's 5th Amendment right to remain silent?
    -If you possess a CCW and inform, you are compliant with state law but have disregarded your right to remain silent.
    -If you possess a CCW and do not inform, you are within your right to remain silent but violating the duty to inform.
    -If you do not possess a CCW and do not inform, you are under misdemeanor possession of a firearm at least, but within your right to remain silent and avoid self-incrimination.
    -If you do not possess a CCW and do inform, well...

    Would these types of statutes stand up to legal scrutiny if pressed from this angle?
     
  2. RickD427

    RickD427 Member

    Joined:
    Dec 25, 2010
    Messages:
    123
    Location:
    King County
    Please make sure that you understand just what the Fifth Amendment provides. Here is the text of the pertinent part of the Amendment:

    "...nor shall be compelled in any criminal case to be a witness against himself"

    Although this is commonly called the "Right to Remain Silent", that's not an entirely accurate summary of the right. The Fifth Amendment does not give an individual the right to decline all forms of communication with government officials.

    The right is contingent upon the existence of "any criminal case." If there is no "criminal case" then there is no "right to remain silent." There is considerable case law suggesting that a "criminal case" exists when one is detained by an LEO under circumstances suggesting that they likely committed a crime, but not to the extent of covering all contacts by LEO's. If you are contacted by a LEO absent circumstances suggesting that you have committed a crime, then there is no "right to remain silent" and that settles your question right there.
     
    1942bull, shoobe01, fastbolt and 6 others like this.
  3. unclenunzie

    unclenunzie Member

    Joined:
    Sep 6, 2009
    Messages:
    358
    Location:
    Texas.
    I am no lawyer - but - this lay person believes if one has not been compelled to incriminate oneself, no 5th amendment violation has occurred.
     
  4. War Squirrel

    War Squirrel Member

    Joined:
    Nov 12, 2009
    Messages:
    209
    So police can force you to speak or give up information so long as it doesn't pertain to a criminal case implicating you? That doesn't seem accurate. From what I understand, you can invoke the right to remain silent at any time regardless of circumstances, notwithstanding things like providing drivers license when operating a vehicle, a court subpoena, etc. Am I wrong in that thinking?
     
  5. bdickens

    bdickens Member

    Joined:
    May 1, 2008
    Messages:
    1,323
    Location:
    Hockley , TX
    How, exactly, does one "incriminate" oneself about when one is obeying the law?
     
    Kleanbore likes this.
  6. skeeterfogger

    skeeterfogger Member

    Joined:
    Jan 5, 2019
    Messages:
    883
    If you have Carry Permit they know you do when they run your plate unless it's not your vehicle. Bottom line if the instructions of the class and or the rules of the permit say to do so, do it.
     
  7. 40-82

    40-82 Member

    Joined:
    Jun 28, 2013
    Messages:
    501
    Bear in mind that what follows is a guess. Sort of on the level of who might win a sporting event.

    If you gun is carried illegally, and you're caught, you're probably going to be charged with illegal possession only, not failure to inform. My guess, and bear in mind that this is a guess, the statue requiring you to inform the officer of your weapon will probably only apply to weapons legally carried under the umbrella of your license to carry concealed. It can be argued that to require you to inform isn't testifying against yourself because the weapon is legally carried.

    Some states require the driver to inform the officer. Others don't.

    Let's say you're driving through a state that requires you to inform the officer of your legally carried concealed weapon and you don't realize this law exists. After the officer concludes whatever business he stops you for, he may then ask you if you have a concealed weapon because when he ran your plates it showed up that you had the license.(How widespread this capability is with patrol officers, I have no idea, and would like to know.) I suppose if you're in fact unarmed, you're in the clear. If you are armed, you're subject to be charged.

    At this point you have the standing necessary to argue Fifth Amendment protections. There may or may not be precedents that place your contention under the umbrella of settled law. Even if there is, you can try to find a lawyer willing to argue your case, and he can try to petition the court to hear the case. Either attempt may or may not be successful.

    At some point your lawyer is going to say to you, "This is the cost of the fine. This is the cost of the appeal. You may well go to considerable expense without the case ever reaching a courtroom. Even if you do, any prediction I make to the success of the case is going to be a guess. What do you want to do?"

    There are probably a number of laws of questionable Constitutional validity that will be rarely challenged, and in those rare instances when someone goes to the expense of a successful challenge the ruling may still be so narrow that it has no applicability beyond the specific case.
     
    Last edited: Feb 25, 2020
  8. RickD427

    RickD427 Member

    Joined:
    Dec 25, 2010
    Messages:
    123
    Location:
    King County
    Yes, I do believe that you're wrong in your thinking. If you be believe that there is a global "Right to Remain Silent", please cite a published case so holding.

    For a good overall treatment of the right from the "criminal case" perspective, please see the Ninth Circuit's decision in U.S. v Bassignani. The U.S. Supreme Court's decision in New York v Quarles is also a good case to review. There is little doubt that Quarles was in custody after being chased by police officers, but the court still allowed those officer to force Quarles to answer the question of where he discarded his gun while being chased.
     
    Paco42 and 40-82 like this.
  9. boom boom
    • Contributing Member

    boom boom Contributing Member

    Joined:
    Sep 24, 2007
    Messages:
    4,492
    Location:
    GA
    Quarles was decided whether or not the exclusionary rule applied to a police question asked in the heat of the moment, not whether or not Quarles had to answer the question by a law.

    Hiibel v. 6th Judicial District of Nevada is more to the point. https://www.law.cornell.edu/supct/html/03-5554.ZO.html In that case, the Supreme Court ruled that it was not a federal constitutional violation of the 5th Amendment for a Nevada law to require a person to identify themself to a police officer. That would tend to argue that at least at the federal level, they would see no problem in a state law forcing someone to identify themself if they had a legally concealed firearm with them. However, state constitutions can extend more protection and not every state has such an identification requirement by law. An officer insisting on requiring an answer in a state where the lawful requirement to provide id would be constitutionally suspect.

    Where it gets weird is if the response itself makes the person making the statement liable for criminal prosecution. Thus, a convicted felon that was illegally carrying a firearm might be able to get his statement suppressed under the 5th if that was the felon provided the information necessary to convict himself. See Haynes v. United States (1968). The court has a very wavy line on the 5th Amendment and recently requiring suspects to provide login information to electronic devices has the circuit courts divided as far as whether that is illegally compelled testimony or whether it is like your outside likeness such as a mug shot, fingerprints, etc.

    The late Antonin Scalia preferred to view statements as either testimonial in nature or not. If testimonial, then 5th Amendment protections applied (and 6th in Crawford), if not testimonial, then 5th Amendment does not apply.
     
    40-82 and RickD427 like this.
  10. Frank Ettin

    Frank Ettin Moderator Staff Member

    Joined:
    Apr 29, 2006
    Messages:
    11,736
    Location:
    California - San Francisco Bay Area
    Yes, you are wrong. RickD427 covered the ground pretty well. The right protected by the Fifth Amendment is limited to the right not to be compelled in a criminal matter to be a witness against yourself.

    See, for example:

    1. Minor v. United States Buie v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), at 97-98:
    2. U.S. v. Antelope, 395 F.3d 1128 (9th Cir. 2005), at 1134:

    Furthermore, in civil matters one may be compelled to respond to discovery, answer written interrogatories under oath, and/or answer questions in a deposition, even if the answers could result in civil liability.
     
    fastbolt and CapnMac like this.
  11. Rule3

    Rule3 Member

    Joined:
    Jan 26, 2010
    Messages:
    7,291
    Location:
    Florida
    How about any other questions the officer may ask you?

    Do you have any warrants?
    Have you been drinking?
    Do you have any illegal items n your car.?

    You just gonna say, I wish to remain silent? See how far that gets you.
    If the State law is you have a duty to inform, then you would need to get that law changed,
    Why do they ask for Registration? Just tell them that the registration is the same as the license plate you just ran. Se how that goes.
     
  12. Rule3

    Rule3 Member

    Joined:
    Jan 26, 2010
    Messages:
    7,291
    Location:
    Florida
    No , not all States is your CCW tied to your DL.
     
    Trunk Monkey likes this.
  13. FlSwampRat

    FlSwampRat Member

    Joined:
    Feb 1, 2019
    Messages:
    1,360
    Location:
    Broward County, Fl
    I'm no lawyer, but I have been a LEO. The right to remain silent comes once you are Mirandized. You may not ever be read your Miranda rights if the police have no intention of asking you any questions.

    Wouldn't refusing to answer questions pretty much amount to impeding an investigation and be a criminal offense, even if they're not the subject of of the initial investigation?
     
  14. film495

    film495 Member

    Joined:
    Aug 26, 2019
    Messages:
    674
    What does the duty to inform accomplish? What is the intent or purpose of it?
     
  15. boom boom
    • Contributing Member

    boom boom Contributing Member

    Joined:
    Sep 24, 2007
    Messages:
    4,492
    Location:
    GA
    The idea of car and driver registration is that it is not testimonial in nature--it is required for all vehicles and drivers on the grounds of public safety and since Carroll, automobile operation is treated as a voluntary activity that the state can legitimately regulate. Although City of Lago Vista decision seems to indicate that a police officer "could" theoretically arrest you and take you to a station for a citation for no registration, since no jail time, to the best of my knowledge, accrues, it is punished with a fine only.

    You do not have to answer whether or not you have outstanding warrants if stopped by a police officer, on a form 4473, you do because you are voluntarily buying a firearm. One is testimonial in nature, the other is answering a statutory requirement to purchase a firearm.

    Ditto on drinking in public or in a car but under Hiibel, you could be compelled to identify yourself if state law so requires and if you are underage, oh well.

    Same on questions about illegal items in your car, but if they arrest you and your car is impounded, it is not violating the 4th or 5th to subject your car to an inventory search.

    Best thing I can tell you to do is read both the Haynes decision above and the later Freed decision. Here is an excellent synopsis of both cases by Clayton Cramer, https://www.firearmsandliberty.com/cramer.haynes.html
     
    shoobe01 likes this.
  16. boom boom
    • Contributing Member

    boom boom Contributing Member

    Joined:
    Sep 24, 2007
    Messages:
    4,492
    Location:
    GA
    This is a stab at answering a state's law requiring one to inform an officer of legal carry. A state can constitutionally require that you hand over license and registration to determine whether you are legally operating a vehicle on the road not primarily to impose a prison sentence but to protect the general public.

    A duty to inform a police officer of lawfully carrying a lethal firearm might be considered analogous by courts but I am unaware of any constitutional challenges to any such laws at the federal level. A state might argue that handing over a license and/or verbally disclosure that you are legally carrying avoids the presumption that all stops might involve a felon with a firearm. The requirement to disclose would be so that the officer would feel and behave safer in such a situation.

    Here is an article about it that seems well written but may be dated.
    https://aliengearholsters.com/blog/which-are-the-duty-to-inform-states/
    and another,
    https://www.concealedcarry.com/fire...-inform-or-not-a-recent-pull-over-experience/

    Ironically, the 4th and 5th Amendments work in reverse in the criminal justice system, if you are arrested and then charged, you may move to have illegally acquired evidence excluded from your trial. But, generally speaking, if you are simply stopped, searched, and sent on your way, without charges, it would be very difficult to sue the police in that circumstance. Thus, the rights of the accused help those charged but not those that are not charged regarding breaches of privacy and liberty intrusions.
     
  17. film495

    film495 Member

    Joined:
    Aug 26, 2019
    Messages:
    674
    A good friend of my brother's was a young officer around here many years ago and was shot and killed at a traffic stop. So, believe me I get that this is a difficult spot for officers to be in day and day out. I admit though, I would certainly feel like my right to defend myself was being infringed if I was obligated to inform anyone at any time, about having or not having a gun in my ownership or on my person. It is none of their business.
     
    Aannddrreeww likes this.
  18. WestKentucky

    WestKentucky Member

    Joined:
    Feb 1, 2014
    Messages:
    8,509
    Location:
    Middle Tn
    Duty to inform is a very very small price to pay for recapturing the right to carry a firearm for self defense. I had my carry permit in my wallet beside of my drivers license and always had it ready with the window down when the officer approached. That approach got me out of a ticket or two.
     
    alsaqr likes this.
  19. labnoti

    labnoti Member

    Joined:
    Apr 2, 2018
    Messages:
    1,437
    It would seem that you are surrendering some of your rights to obtain the permit. This also happens with driver's licenses. In some states, a license is permission to demand blood breathe or urine samples. In some states, the license itself must be produced upon demand without any probable cause. Furthermore, in some states, the license results in you and your vehicle being subject to being detained and searched upon "reasonable suspicion" instead of a warrant and probable cause. Your rights protected by the 2nd, 4th and 5th Amendments can all be compromised by permits.

    Duty to inform is bad law. The state in which I reside does not have it, but in all states, the 5th Amendment still also protects our right to due process and the 6th Amendment the right to counsel in our defense. For those who suggest that these rights only apply to those being accused of a crime and that they don't apply to the unaccused or outside a prosecution, the 9th Amendment protects us from denial or disparaging of rights not enumerated by the Constitution but nevertheless retained by the people.
     
    Last edited: Feb 26, 2020
  20. labnoti

    labnoti Member

    Joined:
    Apr 2, 2018
    Messages:
    1,437
    Does the duty to inform result in informing and therefore implied consent to search? If a person carrying informs, the officer needs no further cause to search and seize. Doesn't this make permit holders with a duty to inform subject to "stop and frisk"?
     
  21. herrwalther

    herrwalther Member

    Joined:
    May 1, 2013
    Messages:
    5,359
    This is known as Implied Consent law and it is in every state. However, some states have strict penalties for refusing under IC. Here in Alabama we use a Draeger Alcotest 7110 system to determine BAC over a hand held breathalyzer. The system can be quite finicky so there is no penalty applied if a BAC is not determined. The arresting officer can request a suspension of a DL for 90 days on a refusal, but I rarely saw the request made, let alone granted by the provost (DMV) office. But back to firearms.
     
    Last edited: Feb 26, 2020
  22. boom boom
    • Contributing Member

    boom boom Contributing Member

    Joined:
    Sep 24, 2007
    Messages:
    4,492
    Location:
    GA
    Not what I am saying. What I am saying is that current Supreme Court rulings use the exclusionary rule as a remedy for illegal searches or testimony acquired illegally. If your injury does not have a remedy, then essentially you cannot bring a case to court (see for example, Chicago Steel and Pickling v. Citizens for a Better Environment, https://caselaw.findlaw.com/us-supreme-court/523/83.html. ) The remedy of the exclusionary rule only applies if you are tried, otherwise, you lack a remedy for the illegal search or testimony. As a result, one would have to sue using civil rights acts where you would have to argue that the officer in your particular case deprived you of your constitutional rights. In that case, the police have qualified immunity to your suit and given the courts relative unfriendliness to firearm owners, it is unlikely you would succeed using federal law.

    In many states, a better remedy is your state's constitution but often lawyers are ill prepared to use State constitutional protections for such matters.

    The 9th has come closest to being used as the basis for a decision in Griswold v. CT, but has never attracted 5 justices to support it as the basis of law. Justice Goldberg's concurrence only attracted three justices as to the 9th including a right to privacy.
     
    Last edited: Feb 27, 2020
    Frank Ettin likes this.
  23. alsaqr

    alsaqr Member

    Joined:
    Jul 5, 2007
    Messages:
    4,233
    Location:
    South Western, OK
    Works for me too.
     
    Paco42 likes this.
  24. boom boom
    • Contributing Member

    boom boom Contributing Member

    Joined:
    Sep 24, 2007
    Messages:
    4,492
    Location:
    GA
    Know how I was mentioning state constitutions, in Georgia, the Georgia Supreme Court has ruled in two cases that that implied consent violates the Georgia Constitution's analog to the 5th Amendment in the GA Bill of Rights. The latest case was Elliot v. State, 305 Ga. 179 (2019) https://casetext.com/case/elliott-v-state-2018.

    People would often do better to look to their state constitutions for more protections than the feds. Even Scotus has no problem with a state granting more protection than the U.S. Constitution requires. Both SC and GA also have statutes that specifically forbid any evidence acquired illegally regardless of whether the officer had good intentions while Scotus would allow such evidence under U.S. v. Leon and its good faith exception.
     
    Last edited: Feb 27, 2020
  25. Frank Ettin

    Frank Ettin Moderator Staff Member

    Joined:
    Apr 29, 2006
    Messages:
    11,736
    Location:
    California - San Francisco Bay Area
    Not exactly.

    A Miranda warning is required only for a custodial interrogation. But even without a Miranda warning one may claim Fifth Amendment protection (subject to having legitimate grounds as I outlined in post 10), but he must do so affirmatively. And without a required Miranda warning a failure to answer may be characterized at trial as evidence of guilt by the prosecution. See Salinas v. Texas, 570 U. S. 178 (213).

    It really depends on all the circumstances.

    Cite legal authority (statute/case law). And in general, to the extent an LEO can, under the circumstances, legally require identification, if one is stopped for a traffic offense while operating a motor vehicle, not having a driver's license will, itself, be an offense.

    Cite legal authority (statute/case law). That's really not true.

    The Fourth Amendment protects one from unreasonable searches and seizures. Whether one may be detained without a warrant or searched without a warrant depends on circumstance and not on whether or not one has a driver's license. But of course driving without a driver's license will, itself, be an offense.

    But engaging in activities requiring a license without a license will, itself, be an offense.

    Cite legal authority (statute/case law) supporting that conjecture. When has the Ninth Amendment been applied in that manner.
     
    fastbolt, alsaqr and boom boom like this.
  1. This site uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
    By continuing to use this site, you are consenting to our use of cookies.
    Dismiss Notice