it holds that a person who had cooperated in any capacity prior to his or her arrest must continue to cooperate in incriminating himself or herself since that person has already waived rights including those afforded to him by the 5th amendment.
Hypothetically, if someone provides his or her name and other identifying information as required, could that be construed as having cooperated, and thus a full waiver to 5th amendment rights?
There doesn’t seem to be much caselaw on the matter (at least not on google, anyway). It seems like an easy way to compel a defendant to testify against himself, if all the prosecution needs to do is cite one instance in which the defendant cooperated before the arrest.
Maybe the first few links (like wikipedia) just does a really bad job of explaining it?
No, identifying yourself is not cooperation in the context of Raffel; you are obligated to cooperate to that extent. Nor is cooperating with other “requests” that you are legally required to fulfill (like opening the door for police with a search warrant). It’s the voluntary revelation of information when you could have remained silent that will waive your rights.
Raffel is a disturbing precedent because police are allowed to ask anything (under the theory that you don’t have to answer), and are allowed to lie to suspects. If they lead you to believe that their search is legal, and you’re afraid of getting charged for resisting (or just getting brained with a nightstick), does the minimal cooperation involved in not resisting constitute consent?
Raffel simply stands for the proposition that a person cannot voluntarily take the stand in his own defense for direct examination, and then refuse to answer cross-examination questions posed by the prosecution.
In Raffel, the accused was tried for some crime I don’t even remember – let’s say mopery. At his first trial, he did not take the stand in his defense, and the proceeding ended in a hung jury. At his second trial, he did take the stand in his own defense, and denied the mopery. He was asked about why he didn’t deny the mopery at his first trial. The second trial resulted in conviction, and he appealed, saying that the question about why he didn’t deny the charges at his first trial amounted to an improper invasion of his right to avoid self-incrimination.
Now, it’s worth pointing out that this was a 1920s-era case. Since then, caselaw has developed that sharply limits the holding… it’s now improper to comment on things like post-arrest invocation of a right to silence. But the basic holding of Raffel is that once you choose to testify in your defense, you waive your Fifth Amendment right to refuse to testify in your trial. You cannot use the Fifth Amendment as both a sword and a shield, in other words, revealing only what is favorable to you and refusing to answer other questions.
This does NOT extend to exercise of pre-trial cooperation. For example, you may extend to police the consent to search your car, and then revoke it. As long as the police did not find anything while your consent was operative that would create probable cause and allow them to continue the search based on that probable cause, your revocation of consent is absolutely effective.
Nor does lack of resistance constitute consent, and nothing in Raffel (or any other precedential decision) says otherwise. Affirmative consent must be obtained, not simply silence and lack of resistance.
Out of curiosity how would the following scenario work out. Police are looking for a missing child. They knock on a neighbor’s door without a warrant and ask if they can look around. He agrees. They search the upper floors then one starts heading for the basement, at which point the suspect says, no don’t look in there. Do the police have to stop their search? If so can they use his refusal to get a warrant (assuming they have no other probable cause)? If they get a warrant would it have to specify that they are looking for a child and so ignore the methlab he has set up in the basement?
Yes. His consent is effective only as long as it exists. He can revoke his consent at any time.
No. The failure to grant (or maintain) consent is not probable cause, and cannot support a warrant.
If they get a warrant based on other facts – perhaps they saw something like a child’s red jacket upstairs, and the missing child was last seen wearing a similar red jacket, and the man has no children of his own – then the warrant does indeed have to specify that they are looking for a missing child. This warrant would not allow them to search, say, a briefcase, because the briefcase could not contain a missing child.
But while they are searching for the child, anything in plain view – like a meth lab – is fair game, and admissible against the resident of the home.
Is it possible that the red jacket would give them probable cause to continue a search immediately without a warrant, even after consent is removed? Especially if it’s something more specific - like a red Red Sox jacket - matching the description of the missing child. If they searched the entire house based on that even without consent, and found a meth lab but no child, would that hold up in court?
A warrantless search of a home is presumptively unreasonable. The burden is on the Commonwealth to show that one of the recognized exceptions to the warrant requirement existed. Consent is a recognized exception. Absent consent, the only other thing that might come into play is exigent circumstances – there was a danger of immediate harm, or of destruction of evidence, compelling enough that waiting for a warrant would be unfeasible. This is a highly fact-dependent inquiry. Finding such a jacket, together with a lack of explanation from the resident, might allow the officers to arrest the resident and hold him while a search warrant was procured. It might be difficult to claim exigent circumstances then, because he can’t run off and hurt the child or dispose of evidence in the meantime.
But all sorts of other facts might exist to support the exigency. The safest practice, from a clean evidentiary perspective, is to get a warrant.
Thanks!
The OP seemed so far outside what I believe to be the law that I was really puzzled. It is good to hear(see) that in at least one case my perception is close to reality.