Duty to inform and your right to not self incriminate - Page 2

divil · January 5, 2011, 11:40 AM

KLRANGL, the way I see it if you were charged with not informing the officer that you had a gun, you could probably beat that charge because of the 5th amendment, but it wouldn't matter - surely the charge of having a firearm in a prohibited place would be a much bigger deal? And if you weren't being charged with that, then that means the officer didn't know you had the gun, in which case he wouldn't be in a position to charge you for not informing him.

Edward429451 · January 5, 2011, 11:52 AM

I do not think this thread is drifting. Discussing how police behavior and patterns of enforcement affect our responses to them and the degree of honesty we engage the officer with is very relevant and acertain cause/effect is indicated.

No officer let me slide on 6 violatons, I was being facetious to illustrate the point. Following the law is a good thing but a liberal amount of common sense should be applied. If trust were there between citizens and officers then respect and relations would be improved.

Some do not realize that while technically speaking...it is illegal to lie to a cop, however, it is totally lawful for officers to trick us into revealing violations, or even to outright lie to us in order to get us to submit and do what they want...not a very good foundation to build on.

Do me once, shame on you...do me twice, shame on me! Quoting the letter of the law would be good if we were talking about murder, robbery, and so forth, but accidently walking into a school armed? No slaughter occured? No victims? No law was broken because there was no victim.

This is a simple 5th Admendment issue. If citizens could achieve a level of confidence in officer amicability, we would feel safe to be more honest with you.

Edward429451 · January 5, 2011, 12:06 PM

Quote:

sucking the revenue of the citizens is NEVER the point of any law.

I would agree with this if we were discussing violent crime laws.
I think it is common knowledge and demonstratable evidence to the contrary with all the minor crap that gets written..

How is that bad headlight ticket keeping the people safe? How is it not about revenue and punishment when there is no victm?

I see carrying a gun accidently where it should not be in the same way. and unless he left a trail of bodies he should not be charged with anything. Doesn't intent mean anything to you guys anymore?

KLRANGL · January 5, 2011, 12:09 PM

Quote:

But my point in opening this post was to mention that I believe there was a Supreme Court case (but I don't recall if it was SCOTUS or a state supreme court) a few years back that ruled that a convicted felon (in other words, a prohibited person) did NOT have to inform a police officer if he had a gun, because admitting such would be self-incriminating.

If any of the resident legal beagles know of this case, maybe you could comment on whether by extrapolation it would extend to protecting a CCW holder who wandered onto school property while carrying and encountered an officer. My gut feeling is that the right to not incriminate myself, being enshrined in the Constitution (the "highest law of the land") would outweight any state duty to inform law.

Yeah, that is a good point. I would certainly like to know which case that is, but it does ring a bell in my memory. If that could be applied to "duty to inform" laws, that would certainly highlight an interesting loophole, where breaking the law (in some cases) would give you a legal exemption from informing the police (not like the bad guys would inform anyway, which is why I never liked duty to inform laws anyway).

Quote:

Back in the real world, a lot would depend on my impressions of the officer and their behavior. First of all, if I had previously realized that I was on prohibited property, I would immediately take the shortest, fastest route OFF that property. That in itself would be a reasonable "on the street" defense... "Yes sir, I do realize that I was on prohibited property. I am not from the area and took a wrong turn, mistakenly entering the area. As soon as I realized, I exited the property ASAP, that's when you spotted me."

If I DIDN'T previously realize that I had entered prohibited property, I would respond as such, with an apology even. Any decent officer would likely realize that you had no ill intent and made a true honest mistake.

Call me a sucker, but I agree with you. Honesty has gotten me far with cops before.

Quote:

A prosecutor might ask you, "So, Mr. Killer Angel, you acknowledge that we have a duty to inform here, but you believe that breaking the law regarding where you can carry should give you an exemption from that duty to inform?"

Answering that one is probably not going to feel right. Go ahead and give it a shot here, where it doesn't matter.

Well I certainly would hope my lawyer would have a better answer than I would. I wouldn't be doing any talking to a prosecutor until my lawyer told me what and what not to say...

Brian Pfleuger · January 5, 2011, 12:15 PM

Quote:

Originally Posted by Edward429451

How is that bad headlight ticket keeping the people safe? How is it not about revenue and punishment when there is no victm?

You need a better example. It's pretty clear how requirements for working headlights keep people safe....

Kreyzhorse · January 5, 2011, 12:34 PM

Quote:

If you are required to inform, I would.

+1.

If you are required by the law to notifiy an officer if you are carrying concealed, you must do so to carry legally. If you fail to do so, you've just broken the law by not noting that you are carrying.

Personally I'd take the chance being honest and trying to obey the law instead of willingly disobeying it.

riggins_83 · January 5, 2011, 12:40 PM

This sums it up:

http://www.youtube.com/watch?v=6wXkI4t7nuc

If obligated to advise I will

spacemanspiff · January 5, 2011, 12:48 PM

I've never felt this was an issue I needed to worry about. The list of places that the law in my state says I cannot carry a firearm into, is not that complicated.
And I am probably part of a minority that does have faith and trust in my local law enforcement officers, so its even less of an issue.

Don P · January 5, 2011, 01:53 PM

deleted. will start a new thread.

youngunz4life · January 5, 2011, 02:38 PM

http://www.yahoo.com

click on link and then choose the one from the options in middle of screen: dad-to-be gets speeding ticket

sorry off topic- just adding this to what you guys were talking about earlier and thought this was funny

**as for the self incrimination you just got to do what feels right in my opinion. if its a non-issue than no harm no foul in my mind but if there is doubt honesty is better. I guess it would just depend on the incident. If someone truely made a mistake its still probably gonna depend on the person's backround in the LE's eyes.

Conn. Trooper · January 5, 2011, 04:35 PM

Never mind, don't even want to go down that road.

MLeake · January 5, 2011, 04:43 PM

... isn't so hard to conceive.

I used to live in Gainesville, FL.

Parts of downtown, you can be driving down a regular city street, and suddenly find yourself on UF property. There are no warning signs, no notices. That stretch of road just happens to belong to the University.

I'd imagine a lot of people honestly carry across parts of campus, without ever realizing they are on part of the campus.

Meanwhile, as far as transit goes, there are plenty of neighborhoods I can think of where you can't enter or exit without passing within 1000' of a school. I am really not a big fan of zones around prohibited places; interestingly, when it comes to things like sex offenders, the courts often find such zones to be excessive in reach. I'm kind of surprised they haven't found the same way for firearms.

publius42 · January 5, 2011, 05:44 PM

Quote:

Well I certainly would hope my lawyer would have a better answer than I would. I wouldn't be doing any talking to a prosecutor until my lawyer told me what and what not to say...

Killer Angel, if this were a real situation and not a hypothetical, obviously the best advice would be to get a lawyer. Since it is hypothetical and none of us can afford a lawyer, we're here speculating about what one might say.

I'm not playing a game of internet gotcha here with my question, just helping explore your topic. A prosecutor might ask such a question, and yes, you should only answer through/directed by your lawyer, but since we have no lawyer here, what might you say?

SwampYankee · January 5, 2011, 05:51 PM

Quote:

I'm kind of surprised they haven't found the same way for firearms.

Probably because no one has yet filed suit.

**Aguila Blanca** · January 5, 2011, 09:36 PM

Quote:

Originally Posted by Edward

I think it is common knowledge and demonstratable evidence to the contrary with all the minor crap that gets written..

Demonstrable evidence that sucking money from the citizenry is the motive for laws would be either a certified transcript, minutes, or a video recording of a legislative session in which the discussion cites the reason for enacting a new law as revenue sucking.

I have attended a number of legislative sessions, and read the minutes of a number of others. Some of the laws being discussed were IMHO incredibly stupid and ill-conceived, but the motivations behind them were good ... simply stupid and ill-conceived. Revenue sucking was never mentioned at all.

Cite ONE instance with demonstrable evidence, please.

Conn. Trooper · January 6, 2011, 10:08 AM

Aguila is correct. There is no law enacted just to make money. Usually laws are enacted in direct respone to complaints from citizens, towns, whatever. Our latest was actually created after several Troopers were hit on the highway. The legislature saw this and created a "Move-Over" law, where if you could safely move out of the right lane when emergency vehicles were on the shoulder, you were required to. There are big signs all over the highways about the new law saying move over for vehicles stopped on shoulder. Think anybody does it? Nope, very very few actually do. I wrote three tickets for this the last day I worked on the highway. One guy had almost a half mile of free left lane and stayed in the right lane and almost ran over the wrecker guy that was towing a car for me. I stopped him and asked if he was aware of the new law and he said he was. I asked him why he didn't move over, as he had an entire half a mile of left lane open, and he had no answer.

Did I think, "Wow, that's some big fines for the state!!" Hell no, I said i can't believe that dude didn't move over and almost clipped the wrecker dude. Didn't even think about the fine amount. I had to look it up because I had no clue what the fine for that was.

vranasaurus · January 6, 2011, 10:22 AM

If informing the police officer requires you to admit to a crime then it would violate your fifth amendment rights.

US v. Haynes is somewhat instructive because it ruled a firearms registration requirement violated the 5th amendment because it required people who failed to comply with the NFA's transfer requirements, thus committed a felony, to send the secretary of the treasury information admitting to the commission of said felony.

Let's say you are carrying in a prohibited area, are stopped by police, and the state your are in requires you to inform the police.

Are you required to inform?

Part of the courts ruling in Haynes was that the registration requirement that the defendant was charged with violating only applied to those who had failed to comply with the acts requirements reagrding transfers. Thus it only applied to those who had committed a crime and the risk of prosecution was real and appreciable.

Even though the must inform law doesn't only apply to those who have committed a crime the government still can't require you to admit to a crime. I just don't see anyway around it.

So let's say you don't inform and the officer pats you down and finds your gun.

My opinion, worth exactly what you paid for it, is that you couldn't be successfully prosecuted for failing to inform but would be prosecuted for carrying in a prohibited place assuming the stop and pat down were legal. In the end you get prosecuted for the more serious charge.

If you knew you were in a prohibited place and had a gun on you I would certainly recommend that you exercise your right to remain silent. Of course I would also recommend that you not carry in prohibited places.

youngunz4life · January 6, 2011, 01:23 PM

Quote:

Think anybody does it? Nope, very very few actually do.

I have been doing that for years conn trooper long before any laws came out. It's not only a courtesy, but it can protect the driver too. I know FL has that law, but my home state does not.

Don P · January 6, 2011, 01:46 PM

Quote:

I know FL has that law, but my home state does not.

I have to ask, what law are you referring to?

**Aguila Blanca** · January 6, 2011, 04:23 PM

Quote:

Originally Posted by Don P

I have to ask, what law are you referring to?

The "Move out of the granny lane when passing emergency vehicles on the shoulder" Law. A lot of states in the midwest and west have had such a law for years. I wasn't aware Connecticut had enacted one, but I tend to do it anyway so it wouldn't matter even if I were driving in Connecticut.

youngunz4life · January 6, 2011, 04:42 PM

yes, states like FL have signs on the highway warning and/or advising drivers that its against the law not to move over while passing emergency vehicles(such as towtrucks, police, and so-on). I can't disgree with that law. Too many times some unfortunate soul gets picked off trying to change a tire. I guess its not against the law to not move over for him, but it just makes sense to use extra caution. I always sort of figured thats how the law came to be, and because too many needless deaths have occured in the breakdown lane.

KLRANGL · January 7, 2011, 02:35 AM

Quote:

My opinion, worth exactly what you paid for it, is that you couldn't be successfully prosecuted for failing to inform but would be prosecuted for carrying in a prohibited place assuming the stop and pat down were legal. In the end you get prosecuted for the more serious charge.

Well that's about exactly what I figured. Unfortunately, there is no case law that I can find relating to this topic directly. US vs Haynes seems to be a good argument though.
At this point, I have a stronger feeling that the "duty to inform" laws would not legally apply in the original situation. Whether or not I choose to invoke my right to not self incriminate in that type of situation, well... I have no idea, and lets hope I don't find out. Lets hope NC (and other states) fix their silly inform laws first.
If anyone else well versed in constitutional law would like to contribute their thoughts, by all means...

RETG · January 8, 2011, 01:26 PM

If you are legally carrying a handgun, then you are not incriminating yourself by informing the officer that you have a handgun.

So, I'm a bit confused as to why someone thinks you are incriminating yourself by this notification to the officer.

Brian Pfleuger · January 8, 2011, 01:38 PM

Quote:

Originally Posted by RETG

If you are legally carrying a handgun, then you are not incriminating yourself by informing the officer that you have a handgun.

So, I'm a bit confused as to why someone thinks you are incriminating yourself by this notification to the officer.

Well, that's kind of the whole point. If you carried the gun onto prohibited property then you WEREN'T "legally carrying", were you?

KLRANGL · January 8, 2011, 11:47 PM

Quote:

If you carried the gun onto prohibited property then you WEREN'T "legally carrying", were you?

Correct, you wouldn't be carrying legally. But lets be honest, it some states its easy to find yourself in a situation as described. Luckily for me, Virginia is not that kind of state...

January 5, 2011, 12:40 PM	#32
riggins_83 Senior Member Join Date: January 19, 2009 Location: Wherever I may roam Posts: 1,505	This sums it up: http://www.youtube.com/watch?v=6wXkI4t7nuc If obligated to advise I will __________________ l've heard police work is dangerous. Yes, that's why l carry a big gun. Couldn't it go off accidentally? l used to have that problem. What did you do about it? l just think about baseball. -Leslie Nielsen

January 5, 2011, 12:48 PM	#33
spacemanspiff Senior Member Join Date: January 16, 2002 Location: alaska Posts: 3,498	I've never felt this was an issue I needed to worry about. The list of places that the law in my state says I cannot carry a firearm into, is not that complicated. And I am probably part of a minority that does have faith and trust in my local law enforcement officers, so its even less of an issue. __________________ "Every man alone is sincere; at the entrance of a second person hypocrisy begins." - Ralph Waldo Emerson "People demand freedom of speech as a compensation for the freedom of thought which they seldom use." - Soren Kierkegaard

January 5, 2011, 01:53 PM	#34
Don P Senior Member Join Date: December 17, 2005 Location: Swamp dweller Posts: 6,187	deleted. will start a new thread. __________________ *NRA Life Member, NRA Chief Range Safety Officer, NRA Certified Pistol Instructor,, USPSA & Steel Challange NROI Range Officer, ICORE Range Officer, ,MAG 40 Graduate* *As you are, I once was, As I am, You will be.*

January 5, 2011, 02:38 PM	#35
youngunz4life Senior Member Join Date: November 15, 2010 Location: United States of America Posts: 1,877	http://www.yahoo.com click on link and then choose the one from the options in middle of screen: dad-to-be gets speeding ticket sorry off topic- just adding this to what you guys were talking about earlier and thought this was funny *as for the self incrimination you just got to do what feels right in my opinion. if its a non-issue than no harm no foul in my mind but if there is doubt honesty is better. I guess it would just depend on the incident. If someone truely made a mistake its still probably gonna depend on the person's backround in the LE's eyes. __________________ "Damn the torpedoes, full speed ahead!"* -Admiral Farragut @ Battle of Mobile Bay 05AUG1864

January 5, 2011, 04:43 PM	#37
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	This situation... ... isn't so hard to conceive. I used to live in Gainesville, FL. Parts of downtown, you can be driving down a regular city street, and suddenly find yourself on UF property. There are no warning signs, no notices. That stretch of road just happens to belong to the University. I'd imagine a lot of people honestly carry across parts of campus, without ever realizing they are on part of the campus. Meanwhile, as far as transit goes, there are plenty of neighborhoods I can think of where you can't enter or exit without passing within 1000' of a school. I am really not a big fan of zones around prohibited places; interestingly, when it comes to things like sex offenders, the courts often find such zones to be excessive in reach. I'm kind of surprised they haven't found the same way for firearms.

January 5, 2011, 11:40 AM	#26
divil Senior Member Join Date: November 11, 2009 Posts: 506	KLRANGL, the way I see it if you were charged with not informing the officer that you had a gun, you could probably beat that charge because of the 5th amendment, but it wouldn't matter - surely the charge of having a firearm in a prohibited place would be a much bigger deal? And if you weren't being charged with that, then that means the officer didn't know you had the gun, in which case he wouldn't be in a position to charge you for not informing him.

January 5, 2011, 11:52 AM	#27
Edward429451 Junior member Join Date: November 12, 2000 Location: Colorado Springs, Colorado Posts: 9,494	I do not think this thread is drifting. Discussing how police behavior and patterns of enforcement affect our responses to them and the degree of honesty we engage the officer with is very relevant and acertain cause/effect is indicated. No officer let me slide on 6 violatons, I was being facetious to illustrate the point. Following the law is a good thing but a liberal amount of common sense should be applied. If trust were there between citizens and officers then respect and relations would be improved. Some do not realize that while technically speaking...it is illegal to lie to a cop, however, it is totally lawful for officers to trick us into revealing violations, or even to outright lie to us in order to get us to submit and do what they want...not a very good foundation to build on. Do me once, shame on you...do me twice, shame on me! Quoting the letter of the law would be good if we were talking about murder, robbery, and so forth, but accidently walking into a school armed? No slaughter occured? No victims? No law was broken because there was no victim. This is a simple 5th Admendment issue. If citizens could achieve a level of confidence in officer amicability, we would feel safe to be more honest with you.

January 5, 2011, 04:35 PM	#36
Conn. Trooper Senior Member Join Date: December 12, 2007 Location: Connecticut Posts: 530	Never mind, don't even want to go down that road.

January 6, 2011, 10:08 AM	#41
Conn. Trooper Senior Member Join Date: December 12, 2007 Location: Connecticut Posts: 530	Aguila is correct. There is no law enacted just to make money. Usually laws are enacted in direct respone to complaints from citizens, towns, whatever. Our latest was actually created after several Troopers were hit on the highway. The legislature saw this and created a "Move-Over" law, where if you could safely move out of the right lane when emergency vehicles were on the shoulder, you were required to. There are big signs all over the highways about the new law saying move over for vehicles stopped on shoulder. Think anybody does it? Nope, very very few actually do. I wrote three tickets for this the last day I worked on the highway. One guy had almost a half mile of free left lane and stayed in the right lane and almost ran over the wrecker guy that was towing a car for me. I stopped him and asked if he was aware of the new law and he said he was. I asked him why he didn't move over, as he had an entire half a mile of left lane open, and he had no answer. Did I think, "Wow, that's some big fines for the state!!" Hell no, I said i can't believe that dude didn't move over and almost clipped the wrecker dude. Didn't even think about the fine amount. I had to look it up because I had no clue what the fine for that was.

January 6, 2011, 10:22 AM	#42
vranasaurus Senior Member Join Date: November 16, 2008 Posts: 1,184	If informing the police officer requires you to admit to a crime then it would violate your fifth amendment rights. US v. Haynes is somewhat instructive because it ruled a firearms registration requirement violated the 5th amendment because it required people who failed to comply with the NFA's transfer requirements, thus committed a felony, to send the secretary of the treasury information admitting to the commission of said felony. Let's say you are carrying in a prohibited area, are stopped by police, and the state your are in requires you to inform the police. Are you required to inform? Part of the courts ruling in Haynes was that the registration requirement that the defendant was charged with violating only applied to those who had failed to comply with the acts requirements reagrding transfers. Thus it only applied to those who had committed a crime and the risk of prosecution was real and appreciable. Even though the must inform law doesn't only apply to those who have committed a crime the government still can't require you to admit to a crime. I just don't see anyway around it. So let's say you don't inform and the officer pats you down and finds your gun. My opinion, worth exactly what you paid for it, is that you couldn't be successfully prosecuted for failing to inform but would be prosecuted for carrying in a prohibited place assuming the stop and pat down were legal. In the end you get prosecuted for the more serious charge. If you knew you were in a prohibited place and had a gun on you I would certainly recommend that you exercise your right to remain silent. Of course I would also recommend that you not carry in prohibited places.

January 6, 2011, 04:42 PM	#46
youngunz4life Senior Member Join Date: November 15, 2010 Location: United States of America Posts: 1,877	yes, states like FL have signs on the highway warning and/or advising drivers that its against the law not to move over while passing emergency vehicles(such as towtrucks, police, and so-on). I can't disgree with that law. Too many times some unfortunate soul gets picked off trying to change a tire. I guess its not against the law to not move over for him, but it just makes sense to use extra caution. I always sort of figured thats how the law came to be, and because too many needless deaths have occured in the breakdown lane. __________________ "Damn the torpedoes, full speed ahead!" -Admiral Farragut @ Battle of Mobile Bay 05AUG1864

January 8, 2011, 01:26 PM	#48
RETG Senior Member Join Date: September 22, 2009 Location: Somewhere in Idaho, near WY Posts: 507	If you are legally carrying a handgun, then you are not incriminating yourself by informing the officer that you have a handgun. So, I'm a bit confused as to why someone thinks you are incriminating yourself by this notification to the officer.