I am not seeking legal advise and this is hypothetical. This is in regards to the US justice system
I have seen Law and Order episodes where an entire confession is thrown out, even when the suspect did not ask for a lawyer; simply because the suspect had been in court before and had a prior lawyer. The judge typically says that the investigators should have talked to his lawyer before interviewing the suspect.
Also I keep reading news stories where either the cops trick the suspect or willfully coerce confessions.
So - can a US citizen hire a lawyer and then preemptively mail a letter to all state and federal courts in the US saying that I will never waive my Miranda rights and such and such is my lawyer in perpetuity (if the lawyer dies or changes then mail revised letter) and will the letter have legal standing ?
I’m not sure how the courts would play into that, but it seems to me that a person that has enough money to keep a (criminal, I assume in this case) lawyer on retainer AND keeps that lawyer on retainer because he plans to be questioned by police at some point in the future would be hiring lawyers good enough to tell him “never talk to anyone without me present, just say ‘I’m remaining silent, I want my lawyer present, here’s his number*’”
But I can see how the courts would have anything to do with making sure individual investigators or beat officers who does and doesn’t have a lawyer ready to go.
Personally, I’ve thought the interrogation/Miranda/arrest/whatever process could use some updating to make sure people don’t get into those situations to begin with.
I would like to keep the economics out of this discussion. And this is for the average Joe Blow, not a career criminal. And also add that Joe Blow writes to all courts and says he will never ever consent to any warrant-less searches.
The idea here is that whenever a person is searched or interrogated, its the Law Enforcement’s word against the person’s word that the person consented to the search or waived his right to self incrimination. So if a person has declared in perpetuity to not consent to searches or not speak without counsel, this situation of the Cop’s word against the person’s word is removed.
I think that would cause more problems. So I send this form to every court in the land. “I, Joey P, will never ever consent to any searches of my property without a warrant”.
I get pulled over for speeding, I also know my car smells like weed.
Cop comes up to my window and says ‘would you mind stepping out so I can take a look around…for my safety and yours’
[Now, if I fight him, he’ll probably find just cause to search my car based on the smell or he can bring a dog out, so I consent right off the bat]
He finds my drugs and arrests me.
At court the judge pulls out the form, asks the cop for the warrant to search the car, cop says ‘I didn’t get one, he consented’
Does the whole case get tossed out for illegal search and seizure?
If this case doesn’t work on some technical level, I’m sure you can understand where I’m going with it. You want to send this form to prove that any cop that searches your property without a warrant ALSO did it without your consent. But I think I could turn it around by making sure I consent to searches (verbally only and make sure they’re not being recorded) and then claim I didn’t.
If the cop knew or should have known that you have a lawyer, then there’s a problem. However, just because you sent a letter to a court doesn’t mean the cop on the beat would have had any reason to know anything about it, so the strategy fails. (In the L&O episodes, the cops knew about the existing case. If the cops could not reasonably be expected to know anything about it, then it’s on you to tell them, and if you don’t, more than likely they’ll win.)
And if it comes down to your word against the cop’s on whether you consented or not, who do you think the jury is going to believe? (Quite aside from the fact that most departments will require you to sign a consent form anyway, precisely to defeat that sort of back-tracking.)
"I will never consent . . . " is a statement of intention.
But you don’t actually consent, or withhold your consent, to a particular search until that search is proposed. And, of course, what you do in any event may not align with what you intended, some time previously, to do in such an event when it was merely a hypothesis (as the former wearer of many a “purity ring” can testify).
So, the court asks itself if you consented to the search when the search was carried out. A declaration you made six months, or a year, or five years, previously that you would not consent is not proof that you did not consent. At best, it will tend to add some weight to your claim that, in the event, you did not consent. But, depending on the totality of the circumstances, possibly not very much weight.
You say - “I have notified your court that I can never consent to warantless searches”. If he has probable cause - he will search regardless of your consent or not (after getting the warrant). I do not understand what you mean by “fight him”.
This is not a way to trap an honest cop into doing a warant less search but to protect yourself from a dishonest cop doing a warantless search.
If you consent to a search, after writing the letter you are essentially committing perjury and so you should get punished for that in addition to the other crimes.
Agreed. If you tell the cop that you won’t talk until they get a hold of your lawyer and they refuse to do so, there’s a problem.
That’s exactly what I said upthread. However, am77494 came back with
I understand what he’s getting at. He’s saying 'if I’m ever in court for anything that was found by a warrantless search, it was found without my consent. I was simply showing how that same thing could be turned around to be used against the cops/judicial system.
Well, that was sort of the whole point of this. Who are you going to believe, the cop that says you consented or the defendant that says he didn’t consent to the search.
Also, I’ve never watched L&O, but I’ve watched plenty of episodes of Cops and I don’t see the cops very often asking for written permission between saying ‘mind if I just take a quick look in here’ and rifling around under the seats and in the glove box.
Also, many years ago, my Mother-in-law was baby sitting at my house while I was at work. Someone in the neighborhood was burning leaves and the cops were trying to figure out who it was. The rang my doorbell, she answered, said it wasn’t her and the cop said ‘Mind if I take a quick look around’ and she let the cop in (I know, lets move past that). If that cop saw anything illegal, she would have been arrested, the search would have been consented and she never signed anything.
Yes, I talked to her about all of that later.
You’ve never said anything at all about notifying law enforcement of anything. A letter to the court is not notification to any other agency besides the court, and it is certainly not notification to each of the various law enforcement agencies in the jurisdiction. (That’s only one of the problems with your proposal, but it’s kind of a large problem.)
I don’t understand how “I have notified your court…” is any better than a simple “No”. By ‘fight him’ I meant that if I continuously said ‘no I don’t consent to a search’ he would have found probable cause and gotten a warrant’. The whole point of this is that I need the search to be done on my verbal consent and without a warrant. So as quickly as possible.
That’s great that YOU plan to use it to protect yourself, but a lot of people will find ways to use it illegally.
Also, keep in mind that you’re doing it to protect yourself from dishonest government officials but not considering that the government might want to protect themselves from dishonest citizens.
While you’re at it, why not also send a form to all the courts that says you’ll never, ever EVER break any laws, cross your heart, so if you’re ever arrested, it’s totally unfair and they have to let you go.
You can see why that wouldn’t work, right? Sure, you’re not going to break any laws and if you get picked up, surely, it’s some kind of misunderstanding, but other people might also send that form out as well specifically so that they can break laws and get away with it.
You want a cite for the claim that “I will never consent . . .” is a statement of intent? Seriously?
This isn’t hard to grasp. “If I am ever asked to agree to a search of my car, I will not consent” is not, on the face of it, a withholding of consent. It’s a statement of intention to withhold consent if and when the occasion for consenting ever arises. You can’t actually withhold your consent (or, for that matter, give your consent) until there is something to consent to.
Right. If, in fact, your car is searched, and if you end up in court on the basis of evidence elicited during that search, and if the admissibility of that evidence depends on whether you consented to the search, it depends on whether you actually consented to the search, and not on whether you had ever said at any time in the past that you intended not to consent any searches ever.
So, I agree, you may have no difficulty proving that you did make a statement of intent, in the most formal fashion, and that you showered copies of it like confetti on every police department, court, customs post, etc throughout the world. That does not dispose of the pertinent question, which is whether, when this search was made, you consented to it. You’re offering evidence as to your state of mind six months, or a year, or whenever, before the search, but what you need is evidence as to your statements and actions at the time the search was made.
I’m not saying evidence of your prior intention is completely irrelevant; it may be relevant in so far as it tends to corroborate (or undermine) evidence of what you actually said and did when the occasion arose. But it’s only secondarily relevant.
The burden of proof is always on the government to prove a citizen guilty. So I do not understand your point.
The objective of the OP is to notify law enforcement / courts apriori that a particular citizen does not consent to warantless searches or interrogation without legal consent. This objective can be achieved by writing letters, creating a registry - something like the donotcall.gov (with your SSN) or the organ donor registry (which gets printed on your Driver’s license). I am not a lawyer, so I am not clear as to the means of achieving this objective.
The premise is that when presented with a situation, people do not think clearly or (dishonest) cops manipulate people into giving up their rights. So if a citizen has the apriori notification, he or she should not be asked to consent by the cops or interrogated without his/her lawyer
Think of donotcall.gov. Can a telemarketer call me right now and say - *"Yes you did not want to be called 3 years back when you put in the request, That does not dispose of the pertinent question, which is whether, when I am calling you now do you still not consent to my call. ? " *
There are FTC regulations in place which impose penalties on telemarketers who call numbers that are on the register. The wrong committed by the telemarketer is not calling you without your consent; it’s calling a number that’s on the register. So the pertinent question, if a telemarketer is penalised and challenges the penalty, is “is the number on the register”?
There is no similar register, or regulations, to back up your scheme. So if the admissibility of evidence is in question, the pertinent question will not be “did am77494 try to create a one-entry register analogous to the do not call register, and is he claiming it is enforceable despite the lack of any regulation to give it legal effect?” It will be “did am77494 consent to this search?”
Let me put a counter question to you. In January Jim wrotv to every policeman in the nation - he got their names and addresses from the do not call register - stating that he would never, ever consent to having his car searched. But in June, when Officer Krupke wants to search his car, he says “may I search your car?” and Jim says “sure, go ahead”, and Officer Krupke searches the car. Did Jim consent to Officer Krupke’s search of his car?
In the case of a search, the circumstances will vary depending on what they want to search, on what basis they want to search, whether they think you’ve committed a crime and if so what crime, whether you actually committed that crime or another crime or none at all, etc., etc. In some admittedly rare cases, it may be a better choice to let them search. You can’t know whether that’s the case, however, until you know the exact circumstances.