How to handle police questioning

[ArcRiley]

In light of federal marshals in town recently, it seems prudent to refresh on how to handle them in the future.  Let's plan to put together a strategy/roleplay session soon before this happens again.

The following is verbatim from the ACLU; see http://www.aclu.org/kyr/kyr_english.pdf

Q: Do I have to answer the questions asked by the
agents?
A: You have the constitutional right to remain
silent. It is not a crime to refuse to answer ques-
tions. It is a good idea to talk to a lawyer before
agreeing to answer questions. You do not have to
talk to anyone, even if you have been arrested or
are in jail. Only a judge can order you to answer
questions.

Q: Can I talk to a lawyer?
A: You have the right to talk to a lawyer before you
answer questions, whether or not the police tell
you of that right. The lawyer's job is to protect
your rights. Once you say that you want to talk to a
lawyer, officers should stop asking you questions.
If you do not have a lawyer, you may still tell the
officer you want to speak to one before answering
questions. If you do have a lawyer, keep his or her
business card with you. Show it to the officer, and
ask to call your lawyer. Remember to get the
name, agency and telephone number of
any investigator who visits you, and give that
information to your lawyer.

Q: Can agents search my home or office?
A: Police or other law enforcement agents cannot
search your home unless you give them permis-
sion, or unless they have a search warrant. A
search warrant is a court order that allows the
police to conduct a specified search. Interfering
with the search probably will not stop it and you
might get arrested. But you should say clearly that
you have not given your consent and that the
search is against your wishes. Your roommate or
guest can legally consent to a search of your
house if the police believe that person has the
authority to give consent. Police and law
enforcement need a warrant to search an office,
but your employer can consent to a search of your
workspace without your permission.

Q: What if agents have a search warrant?
A: If you are present when agents come for the
search, you can ask to see the warrant. The
warrant must specify in detail the places to be
searched and the people or things to be taken
away. Call your lawyer as soon as possible. Ask if
you are allowed to watch the search; if you are
allowed to, you should. Take notes, including
names, badge numbers, what agency each officer
is from, where they searched and what they took.
If others are present, have them act as
witnesses to watch carefully what is happening.

Q: Do I have to answer questions if the police have a
search warrant?
A: No. A search warrant does not mean you
have to answer questions.

Q: What if agents do not have a search warrant?
A: You do not have to let the police search your
home, and you do not have to answer their
questions. The police cannot get a warrant based
on your refusal.

Q: What if agents do not have a search warrant, but
insist on searching my home even after I object?
A: Do not get in the way of the search. If someone
is there with you, ask him or her to witness that
you are not giving permission for the search. Call
your lawyer as soon as possible. Get the names
and badge numbers of the searching officers.

Q: What if I speak to government agents anyway?
A: Anything you say to law enforcement can be
used against you and others. Keep in mind that
lying to a government official is a crime.
Remaining silent until you consult with a lawyer
is not. Even if you have already answered some
questions, you can refuse to answer other
questions until you have a lawyer.

Q: What if the police stop me on the street?
A: Ask if you are free to go. If the answer is yes,
consider just walking away. If the police say you are
not under arrest, but are not free to go, then you are
being detained. The police can pat down the outside
of your clothing if they have reason to suspect you
might be armed and dangerous. If they search any
more than this, say clearly, "I do not consent to a
search." They may keep searching anyway. You do
not need to answer any questions if you are
detained or arrested with one important exception.
The police may ask for your name once you have
been detained, and you can be arrested in some
states for refusing to provide it.

Q: What if police stop me in my car?
A: Keep your hands where the police can see them.
You do not have to consent to a search. But if the
police have probable cause to believe that you have
been involved in a crime or that you have evidence of
a crime in your car, your car can be searched with-
out your consent. Clearly state that you do not con-
sent. Officers may separate passengers and drivers
from each other to question them and compare their
answers, but no one has to answer any questions.

Q: What if the police or FBI threatens me with
a grand jury subpoena if I don't answer their
questions?
A: A grand jury subpoena is a written order for you
to go to court and testify about information you may
have. If the police or FBI threatens to get a subpoe-
na, you should call a lawyer right away. Anything
you say can usually be used against you.

Q: Do I have to answer questions if I have been arrested?
A: No. If you are arrested, you do not have to answer
any questions. Ask for a lawyer right away. Repeat
this request to every officer who tries to talk to or
question you. You should always talk to a lawyer
before you decide to answer any questions.

Q: What if I am treated badly by the police or the FBI?
A: Write down the officer's badge number, name or
other identifying information. You have a right to ask
the officer for this information. Try to find witnesses
and their names and phone numbers. If you are
injured, seek medical attention and take pictures of
the injuries as soon as you can. Call a lawyer or
contact your local ACLU office.

[Braddogg]

Thanks for posting this, Arc.

[Bill St. Clair]

Good summary. Have seen similar renderings many times.

Personally, if a cop comes into my house without a proper warrant, and I have the opportunity, I'll shoot, shovel, and shut up. A man's home is his castle. They'll likely lay siege to my house after that, but I'll die proud.

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter -- but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!" -- William Pitt the elder

[John C]

Thanks for posting this, Arc.

+1

Check out  http://www.flexyourrights.com/
I have the DVD "Busted" if anyone wants to set up a viewing get-together.

[Checkpoint]

Since it seemed appropriate, this is a cross-post from thread titled, Something is happening over at Error's apartment...":

For those interested, background information regarding the U.S. Marshal Service can be found on wikipedia at:

http://en.wikipedia.org/wiki/United_States_Marshals_Service

Earlier in this thread, someone asked if there was actually a federal law making it a crime to lie to a federal officer. The applicable statute appears to be 18 USC 1001 which reads in pertinent part:

18 USC 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both....

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001001----000-.html

I believe this is what Martha Steward was ultimately charged with, and spend 5 months in jail for, several years back while under investigation by the SEC for insider trading. You'll note, she wasn't convicted of insider trading, what she was actually being investigated for, but rather making false statements to a federal investigator.

Given that enforcement agents will seek to use anything you say against you, this is compelling reason to refuse to answer their questions absent a court order or other special arrangements to do so. Even the most innocent statement can be misconstrued as an attempt to mislead or conceal by an overzealous enforcer. As such, I'd prefer to not have a jury making a determination on whether or not I'll be spending the next 0-8 years behind bars because something I said on the spur of the moment, under threat by inhospitable agents, turned out to not be completely accurate under the microscopic lens that agents of the federal government can bring to bear against targets of interest.

If a target of interest doesn't say anything, there's obviously no statement that can be misconstrued as a lie. This in turn forces agents to decide just how much time and effort they want to spend to legally compel a target to make a statement. Procuring a court order takes time and the agent in turn is required to make truthful statements to a judge justifying the order. This application for a judicial order becomes part of discovery during any legal proceedings that may arise after the fact and anything an agent says to justify an order can of course be used against him.

Agents obviously aren't interested in following the formal process for compelling statements from targets of interest if they can get away with it because of the extra effort required and the potential liability they face if they make false statements to secure the warrant/order. This is why the preferred modus operandi is to show up without warrants or court orders and attempt to 'convince' a target of interest to talk voluntarily. After all, talking to a federal investigator absent a court order to do so represents a voluntary waiver of one's rights.

Additionally, as this article shows:

http://blog.wired.com/27bstroke6/2007/06/appeals_court_r.html

Enforcers aren't bound by the same legal limitations that mere individuals are. Courts generally consider it perfectly acceptable for an enforcement agent to lie to suspects to coerce them into incriminating themselves and/or implicating others. This is why some of the Marshals who showed up the other day had no problem with falsely insinuating that folks who refused to voluntarily cooperate with them, would either be arrested on the spot or further detained. In at least one case, they lied about the right to record them as well.

Other points to consider. The U.S. Marshals indicated they've been concerned about potential violence related to the Brown case for over a year. As such, they've had twelve months to take action on any credible evidence of an impending illegal act. The fact that they showed up in the local community without warrants or court orders indicates they had no compelling evidence related to anyone they interrogated or were seeking information on. This conclusion is further bolstered by the fact that they failed to meet with Rob after he returned to the community and made himself available to the Marshals.

As such, this was clearly a fishing expedition designed to rattle some cages and place the community on notice that it's being watched....

One thing the community may want to consider is finding an attorney or two who can be reached during times of crisis like this. Perhaps there are a few liberty minded attorney's in the area who would be willing to be on call/retainer for future incidents. Folks could carry their cards around with them and tell enforcers who want to talk with them to talk to their attorney instead.

One of the cards I keep in my wallet is from Marc Victor who represented me after I was stopped at a joint task force roadblock (Feds and local police) in Southern Arizona and arrested for refusing to show ID on demand. See:

http://checkpointusa.org/roadblock/roadblock.html

The back of his card reads:

"I refuse to consent to any search whatsoever. As such, I do not consent to a search of my premises, my person, my immediate location or any vehicle or effects. I hereby exercise my rights as enumerated by the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States Constitution and Article Two of the Arizona Constitution. I demand to have an attorney present prior to and throughout any questioning at all.  Additionally, I wish to consult with my attorney prior to any discussion with law enforcement officers on the subject of waiver."

Anyway, I want to thank you all for showing the rest of us what a liberty-minded community can look like and how it responds to encroachments on the liberty interests of any of its individual members.

[Bald Eagle]

I'm thinking we ought to have a form for people to use that would be helpful to them in the event they are leaned on by goons.  It's hard to remember what to say or do at odd moments when they spring on you 3-4 at a time.

You could keep the checklist by the door on a clipboard with a pen attached.

Put a sign in the entryway explicitly stating who has the authority to give consent to search what parts of the home, followed by an explicit statement that denies anyone without explicit authorization from giving consent.

If you have a lawyer, keep their business card attached to the list, program their number into your speed-dial, and have written backups for manual dialing.

Post signs in the house and on your device to notify them that they are being audio and video recorded.

[Bald Eagle]

Said the upload file was full, will post printable images of checklist later.

[Bill St. Clair]

I'm thinking we ought to have a form for people to use that would be helpful to them in the event they are leaned on by goons.  It's hard to remember what to say or do at odd moments when they spring on you 3-4 at a time.

I suppose you could make a little card containing the following universal script for all interaction with all fedgoons (replace name, city, and state with yours):

"My name is Joe Blow. I live in Anytown, New Hampshire. I do not consent to any search, and I will not answer any questions. Am I free to go?"

Repeat the final question periodically until the answer is yes. Walk away.

If they ask to search, you can reiterate that you do not consent, or, if bored, ask if they have a warrant. Or just remain silent. Respond to no verbal threats. Laruen is an expert at this, though from the videos I've seen, I think she should more clearly state her intention to excercise her right to remain silent.

I doubt I would be able to submit to an assault and kidnapping (aka "arrest") as Lauren does. I'd tend to want to break knees and crush Adams apples. But that's just me. You'll survive better by going limp.

[Jared]

thanks

[Checkpoint]

I'm thinking we ought to have a form for people to use that would be helpful to them in the event they are leaned on by goons.  It's hard to remember what to say or do at odd moments when they spring on you 3-4 at a time.

There's a form that's been circulating around for sometime now called the Public Servant Questionnaire which relies upon the Federal Privacy Act as a basis for asking various questions to federal investigators that may approach you before deciding whether or not to cooperate with the investigator.

One version of the form I came across online via a quick search can be found at:

http://nonais.org/techdocs/PublicServantQuestionnaire.pdf

It's been a while since I've looked into it but if I remember correctly, the Privacy Act is legislation that requires any government agency that develops a system of records containing personally identifiable information about individuals to make that system of records known to individuals upon request and afford a mechanism for that individual to review the information stored about them and the ability to correct/challenge incorrect information. This law, in conjunction with the Freedom of Information Act, is what affords individuals the statutory right to force any government agency to provide them with a complete copy of all information stored about them.

I have no idea who first developed the questionnaire or the specific impetus but I always thought the questions on the form were pretty straight forward and reasonable. As such, I figure a government agent's willingness, or not, to fill it out in its entirety can be used as a basis to decide whether or not they are operating on good faith and what level of cooperation they deserve.

In other words - question authority, and find out exactly who they are and what their intentions are, before they question you. If they aren't willing to answer some basic straight forward questions regarding their intent then neither should you.