The 5th Amendment: Why A Law Professor Says "Don't Talk To Police"

Submitted by Mike Krieger via Liberty Blitzkrieg blog,

In my recent interview, “Serfdom is the New Normal” – Talkin’ Oligarch Blues with Perpetual Assets, I mentioned the dangers of talking to the police in light of the recent epidemic of shady civil asset forfeitures. What many people fail to realize, is that you aren’t obligated to have casual conversations with police when you have been pulled over. In fact, such conversations are often used solely to manufacture an excuse for further action against you. For example, take this excerpt from the recent Washington Post article, Highway Seizure in Iowa Fuels Debate about Asset-Forfeiture Laws:

Simmons said he was issuing a warning for the failure to signal. After handing over the paperwork, he said the stop was over. Then he asked the driver, Newmerzhycky, if he had “time for just a couple quick questions.”

 

Police who specialize in highway interdiction use casual conversations to avoid triggering legal questions about the length of stops. If the conversations are consensual, courts consider the added delay to be legal.

During a routine highway stop for a minor traffic violation, I can’t think of a good reason why it would ever be in your interest to continue chatting with a cop.

Highway police are trained to use the chats as an opportunity to take stock of alleged “indicators” of criminal activity, including nervous speech patterns, a pulsing carotid artery and inconsistencies in stories. They are also trained to seek permission for warrantless searches.

It’s really sad that it has come to this. It would be much better to live in a society where people could have enough trust in police to chat casually with them. The more police engage in bad behavior, the less the public will want to engage.

The trickier part about all of this, is that it isn’t clear what a reasonable length for a stop is. Here’s the Washington Post on the issue, from the article, Waiting for the Dogs During Police Traffic Stops:

Imagine a police officer pulls over a car for a routine traffic violation, such as speeding or driving with a broken taillight. During the stop, the officer develops a hunch that there may be drugs in the car. He contacts a local K-9 unit and requests a trained drug-sniffing dog; when the unit arrives, another officer will walk the dog around the car to see if it alerts to drugs inside. Although the Supreme Court has held that the use of the dog is not a search, the length of a warrantless stop must be reasonable. The officer can’t delay the driver forever.

 

This raises a question of Fourth Amendment law that has led to a lot of lower court litigation: If the officer has no reasonable suspicion that drugs are in the car — that is, he only has a hunch — how long can the traffic stop be delayed before the dog arrives and checks out the car?

 

Lower courts have generally answered the question by adopting a de minimis doctrine. Officers can extend the stop and wait for the dogs for ade minimis amount of time. But exactly how long is that?

 

Just yesterday, the U.S. Court of Appeals for the Eighth Circuit held in United States v. Rodriguez that seven to eight minutes is de minimis. On the other hand, the Supreme Court of Nevada held a few months ago in State v. Beckman that nine minutes is too long.

With all that in mind, I strongly suggest watching the following video with almost 5 million views of Law Professor James Duane, simply titled: Don’t Talk to Police.

Disclaimer: I am not an attorney and obviously none of this should be taken as legal advice. It is meant to provide you with some information and you should do your own research (laws vary by state).