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2010: The Year We Make (Police) Contact

**This is the second post in a series about I'M SERIOUS, consider being intentionally quiet around The Fuzz. ***And here is your reminder that I am (probably) not your lawyer, the following is not legal advice, and you should consult your own dang attorney if you have questions.

We have recently covered the basics of Miranda and how it regards non-custodial interviews--as in, it just doesn't. For the most part, no custody equals no coercion, so no warning is required. (Please note that there are exceptions, but we won't be covering that in the blogosphere as I save my best juice for legal briefs.) As previously promised, next we tackle what lives under the umbrella of police questioning while in custody.

Raise your hand if you can tell me what it means to be seized? Not you in the front row. Put your hand down, you're not getting arrested and you look ridiculous. You kids in the back? Sit up and pay attention, you probably actually need to know this. I am oversimplifying this for the purpose of brevity, but we are talking police custody here: a "seizure" under the Fourth Amendment has occurred when a government agent asserts "dominion and control" over a person by means of physical force or a show of authority.

A lot of important court cases have spelled out what that means, but let's credit United States v. Mendenhall (1980) for a list of non-exclusive factors that would suggest to a court that a police interaction is moving from a consensual or noncustodial encounter into a custodial one. Those factors include things like the presence of several officers, brandishing or display of their weapons, physical touching of the person by officers, and language or tone that suggests they might use force to make the person comply with their requests. If the person, under all the circumstances taken together, would be free to disregard the police interaction and walk away, then he is not in custody. For the most part, police are not required to advise this person of his rights.

But instead of focusing on the minutiae of those iffy scenarios, let's focus on the one that is most likely to happen: you hear an officer state that "you are under arrest." As previously discussed, in Kansas there is no requirement that an officer immediately advise an arrestee of her rights. Rather, they advise of Miranda only when they intend to further question that person while in their custody. (This is why all your drunken confessions in the back of the police cruiser end up coming back to bite you in the butts, kids.) So knowing from blog post number one on this topic that you have the right to remain silent whether or not you are so informed by an officer, how does one go about invoking that right and stopping further questioning?

The Trouble with Berghuis

In 2010, this s&!+ came off the rails in my (least) favorite case. Remember when I told you that the responsibility is on you to consciously exercise (or waive) the right against self-incrimination? It turns out that prior to 2010, the Supreme Court had not considered whether the right to remain silent could be invoked by "ambiguous or equivocal" action--meaning, they hadn't decided what invocation of this Fifth Amendment right-to-clam-up looked like for practical purposes. An accused murderer named Van Chester Thompkins attempted to show the world how to stay quiet, by . . . [spoiler alert!] staying quiet.

Thompkins was the suspect in a mall shooting in Michigan, and detectives caught up with him a year later in an Ohio prison where he was awaiting extradition on their warrant. There in a small room, while in custody, he was advised that he had the right to remain silent. And remain silent, he did. He stayed quiet for a good long while--nearly three hours. Every so often he would nod or give a syllable in response to an inconsequential question from officers, but otherwise he kept his mouth closed. And then an officer began an emotional appeal by simply asking, "Do you believe in God?" Of course in the next bit, Thompkins bared his soul and got himself jacked up for murder.

The titular Berghuis was the prison warden in Ohio--you would be amazed at how often this occurs in famous court captions--but we owe Thompkins for trying out this losing strategy. His lawyers unsuccessfully argued in front of SCOTUS that his actual silence had been an invocation of his Fifth Amendment right: his inculpatory statements should have been inadmissible. SCOTUS disagreed. He had been warned by police at the outset, had signed an acknowledgment that he understood his rights, he was not coerced by anyone, and he never stated that he would not speak to them or answer questions; he had merely relied on his real-time silence to send the message. Continuing to question him was fair play. The Court chose this case to draw a distinction: if you wanted to waive the Fifth Amendment privilege, the state had to prove that the waiver was knowing and voluntary; but if you wanted to invoke it, you had to make an unambiguous statement that you were doing so.


Back here in Kansas, the state's supreme court holds the line on Berghuis. No matter whether I think this case was bonkers, the rule is roughly this: police only have to honor your invocation of the right of silence if you communicate it to them "without any ambiguity or equivocation." No pussy-footing around: unless you specifically tell them you aren't talking, then they don't have to stop asking you questions. (There are other ways to make it stop, but this post specifically regards silence.) There are many combinations of words that are seen as effective, and there may even be room for use of quite colorful words to state it. Whatever you do, if you want to invoke the right to remain silent while you are in policy custody, the bottom line is this: You. Must. State. It.

As Captain Picard would say, Make it so. "I will answer no further questions." "I am done talking to you." "I am invoking my Fifth Amendment rights." And THEN you can be just as quiet as a church mouse. Personally, if an officer continued asking me questions after that, I'd let my middle finger do the talking--but I'm sure that's just me.

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