5th Amendment and Duty to Inform

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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.

Well...while this is true, it seems to me that informing a police officer that you're carrying if you should happen to be somewhere in which carrying a weapon is prohibited and could result in your incriminating yourself (admitting to a criminal act) and would be a conflict there...obey the law and inform the officer and be hammered for a criminal act of carrying where you shouldn't have been OR disobey the law and NOT incriminate yourself.

Now, I'm not going to say people ought to be violating the law by carrying where it's prohibited, but sometimes this happens and quite unintentionally. I'm NOT going to incriminate myself by openly admitting to a criminal act, especially if the officer has no idea in the first place. If, for example, you're pulled over for something and the officer is asking you questions...they're NOT just asking questions to entertain you. It's their job to look for infractions of the law. "Have you been drinking?" "Have you been smoking wacky-weed?" Sorry...if they have a reasonable suspicion of this they'll take action. I won't admit to it openly and GIVE them a justification for any further action.

Sorry. I respect the police, but I'm not going to put myself in jail.

And yeah...I realize that a lot of police agencies have access to whether or not I may have a CCW permit because it's cross-referenced with the driver's license database in some states. But that doesn't mean I'm actually carrying at that time.
 
Be nice about it, but the police have no justification rooting around your car to find evidence to charge you or others without a warrant. Don't consent and you have a fighting chance at having any evidence acquired thrown out even if they claim probable cause. If they lack a warrant, the burden flips to them to provide evidence, if you consent and they find something, the burden is on you to prove that it is not yours

^ nailed it. That is exactly how I feel.

"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."

^ this confuses me, who exactly is going to force me to talk? What are they going to do, torture me? I will be polite and courteous to LEOs but if they are being aggressive with me, or are enforcing unconstitutional laws... Yeah, I'm not talking. I don't care what the "conditions" are on the 5th. If not incriminating myself is basically treated like a privilege unless some situation allows it, then what is the punishment for not incriminating myself? What's the point? Sounds like a BS deal either way...
Maybe I just don't understand, which is very possible. I do not mean to be a jerk or hostile to anyone here (or anywhere else for that matter).


These rights aren't bestowed upon us by govt, we naturally have them, and they are not contingent on anything. You either have a right or you don't.

And if we're letting govt officials dictate when we can or cannot assert or freely practice our rights, then maybe it is time to water the tree, because that sounds an awful lot like a tyrannical govt.

The founding fathers were some of the most brilliant men to ever walk the earth, and no one today comes close to the caliber of men they were. The ideas they set forth have been turned into a mockery.

I'm not trying to be belligerent or difficult, but I have lost a considerable amount of respect for the cops and politicians of where I used to live. Where I am now, is much better. The police don't have access to concealed carry records, and I never voluntarily disclose I'm carrying, and I've never been asked. Like I said before, it's nobody's business but mine.
 
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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?
Make a sign that says you want a lawyer and will not speak or comply until that attorney is present, put it in a plastic bag and then place it so it stick in the top of your closed window and do not open that window at all; saw a YT video where someone got through a DUI checkpoint that way
BUT, IANAL, so do so at your own risk and peril........................:neener::D:D:thumbup:
 
My next door neighbor retired after 35 years on the Philadelphia police force. In PA there is no duty to inform, but there is an obligation to declare a firearm if asked by an officer. I once asked him since there is no duty to declare here what would be the purpose of asking. He said he saw no value in asking in most cases, but did see value in it sometimes but rarely. Police respond to two types of offenses: civil and criminal. He said that the only time he ever asked a driver about possessing a weapon was on all crime responses and only on a cilvil offense when he was checking a car or driver that was suspected to have committed a crime or who became very hostile to bing stopped. I have no problem with thee PA law as long as LEOs exercise good judgement and restraint.
 
Boom Boom, Thanks for a well-written and informative posting, but I think that you may have missed the mark a bit with regard to vehicle searches and particularly with regard to the need for a search warrant for officers to conduct non-consensual searches of vehicles.

With just a few exceptions, an officer possessing probable cause to believe that there is evidence of a crime contained in a motor vehicle may search the vehicle as extensively as he/she could with a search warrant, but without need of obtaining a warrant. Please refer to the U.S. Supreme Court's decision in U.S. v Ross. It's also worth reading Justice Marshall's pointed dissent to that decision. A vehicle search under Ross is limited in scope to articles that fall within the probable cause.

It's also important to note that when a vehicle is impounded, the officer has legal standing to conduct an inventory search of the vehicle without need of a warrant. The extent of an inventory search is quite broad. Please refer to the U.S. Supreme Court's decision in South Dakota v Opperman.

Searches under these authorities are very commonly conducted by LE officers in the field. My experience is from California. California law permitted (when I was in active service) vehicles driven by unlicensed drivers to be impounded and the corresponding searches often produced evidence of unrelated crimes. California law includes traffic infractions within its categories of "crimes." For example, a vehicle being driven with an inoperative brake light would provide "probable cause" to inspect the brake light wiring.


This is not written from the viewpoint of police as to what they can do but rather what maximizes being able to have the fruits of the search excluded from trial. Essentially consenting to a search eliminates the need for the police to justify a search to the court. Absent consent or a warrant, the police and prosecutors are to be held responsible if they do not meet probable cause by the evidence being thrown out. Any criminal attorney worth their salt prepares a general motion to suppress evidence and then fills in the blanks with the particulars. With consent, the attorney might as well throw away the motion.

So you mentioned exceptions (such as inventory, special places, borders) to the warrant requirement, but if you consent to a search, you have great difficulty challenging the result in court because there is no longer a warrant requirement or probable cause. The validity in admission in court of the inventory search turns on whether or not the original stop was valid (for example, see Michigan v. Long). Not a valid stop, then inventory search is excluded generally (there are some weird circumstances where it might be so). If you consent to the search, it becomes more difficult to challenge the predicate to the rest of the fruit of a full on search. Don't consent, the police have to have either a warrant or probable cause at that point in time. If no warrant, the police may request one and today makes it pretty easy to do so--even on the side of the road under many jurisdictions, but if they proceed without one, then the police officer's actions are to be scrutinized by the court in a suppression hearing as to whether the court has an independent view of whether probable cause exists. That hearing would go very differently for someone who consented to a search (then the burden would be on the individual to prove a) they could not give willing consent or b) extreme circumstances such as conduct by the police that would "shock the conscience" of the court.

As an individual, there is literally no reason for innocent individuals to consent to a search under the 4th. A guilty person knows whether or not they are better off cutting a deal by consenting, an innocent has no such issue.

If the police believe that they have probable cause, they can arrest you and conduct a search incident to arrest. But, after Belton v. NY, the police abused this discretion of grabable area derived from Chimel v. California that they considered the whole car as incident to arrest (it is not unless named in the warrant as some jurisdictions combine arrest and search warrants). Arizona v. Gant, reined in the police using this tactic.

If you consent and they find anything during that search, you will not be able to exclude evidence absent extraordinary circumstances. If you do not consent, then the police must provide that their search was both reasonable and compliant with probable cause (or an exception to the warrant requirement). And no, most courts would frown on a brake light stop turning into reasonable cause to search the wiring. That is baldly a pretext search and if you use that as a general pretext to go into a car and tear it apart, that department would probably end up getting sued eventually because police have no demonstrated expertise in auto repair. I personally know of a specific case where a cop got fired for doing a profiling, stopping two yutes, and then proceeding to tear apart their car searching for drugs. None were found and all was captured on his cam. The kids complained to the supervisor, the supervisor watched the tape, the officer was suspended and then fired after an investigation. The kids got a check to pay for their damages from the illegal search.

So, if you do not consent to a search, the officer must then prove that probable cause existed at the time of the search and the reach and reasonableness will be examined by a court, not a police officer.

Impoundment inventory searches are an exception to the warrant requirement as you noted above but generally speaking, the police cannot impound a vehicle for any reason--it would have to an offense commensurate with the vehicle not being safe to drive, that was evidence in a crime committed with the vehicle, the driver would not be able to drive (being arrested etc.), and so forth. Speeding, for example, would not imply a general right to impound a car and courts have rightly rebuked jurisdictions that practice it as a regular seizure without those conditions.

Officers are given by the public a great deal of necessary discretion in how they do their jobs and even qualified immunity from lawsuits. However, their evidence gathered without a warrant is given no such leniency. We, as a society, have chosen not to follow Great Britain's laws which makes police themselves individually liable for breaking the laws during searches, arrests, and interrogations, such as trespass. They have no exclusionary rule such as we do for that reason. It is the exclusionary rule's purpose to protect citizens as Justice Cardozo say, the person goes free because the constable blundered. That is our choice as a society. Giving voluntary consent takes that away from an individual.
 
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