Chattanooga police department in its criminal investigation protocols gives rules for the officer interrogating a subject or suspect person, and makes clear that when you are not free to leave, you are under “custodial arrest.”
Whatever fib the officer may utter, if you are not free to leave, you are in custody and under arrest, even though his words convince you that you are only being “detained.”
By David Tulis / NoogaRadio 92.7
The rules in “Ops – 39 – criminal investigations” in the Chattanooga police department policy manual lay out rules for cops that seem to respect constitutionally guaranteed rights of the people. But the rule can be effectively ignored in the field with little ado.
In getting you to sign a form that is a “refusal to waive rights” form, you are given the impression that signing the form inks a dark fate, and adds to your troubles.
The officer, at the moment he is supposed to read an arrestee’s Miranda rights, cunningly coerces that person from his constitutional rights. Here, sign this form waiving your rights, and if you don’t sign this waiver, that means you are maintaining your rights — which of course means trouble for you.
“The burden of proof is on the state to establish that the suspect has waived his/her constitutional rights. Whenever feasible, the waiver should be recorded or obtained in writing. If the individual refuses to sign the rights waiver form the officer/investigator shall write “refused” on the Miranda Form. A Rights Waiver Form shall be included in each case file documenting these areas.”
A smart officer will use this duty to get a waiver to turn it into a threat. A smart one would say: “If you don’t sign this waiver, we’ll have to write ‘refused’ on the Miranda form, and it’ll say refused on there, and you’ll have signed that it says ‘refused’ to sign a waiver, and that’ll be part of the record.”
Such argument is convoluted, but makes the argument to the anxious and fearful arrestee that to assert his rights is trouble, if not actually offensive to the officer, and shouldn’t be done without the most careful deliberation. The most, most careful study. You should sign this form, because if you don’t you are refusing to cooperate. Got that? Refusing to cooperate. If the arrestee is intimidated or confused, he thinks he has to sign the waiver to avoid even more trouble and woe.
Once you sign the waiver, you now MUST TALK and MUST TESTIFY against your rights, and yield what you cannot yield. Or so you are led to believe. The officer will assure you this course is the best for you, the least trouble for you, the best thing in light of his needs and your personal well-being and safety (though the rules forbid intimidation).
Our rights are God-given; they are constitutional immunities that are unalienable and inherent. You cannot give them away, you cannot alienate them. You cannot pretend they do not exist, especially if you are one who loves God, respects your property and capital as bound up in your rights, and want to cease life of fear and dread vis a vis the modern police state.
The officer initially disarms his mark by saying he’s not under arrest, but being detained. That should be understood as saying, “You can go if you want to, and if you stay, you are staying voluntarily, with consent.”
Because under the rules of his trade, the officer has to have probable cause or a warrant to arrest someone. But cops keep a hold on detainees even though he may be operating in a gray area, with suspicion giving him courage to press on, but too little hard “evidence” or “cause” to justify the stop. Cops use a person’s own lips to cinch probable cause or justifiable suspicion and convert a detention into a custodial arrest.
The rules envision what’s called a “custodial interview,” before which Miranda must be read so that whatever comes from the citizen’s lips can be used against him:
Persons undergoing a custodial interview shall be advised of their Miranda Warnings. A person is “in custody” when (1) an officer tells the person that he or she is under arrest or (2) the person reasonably feels that his or her freedom of action has been restricted to the same degree as a formal arrest. A person that is free to leave at any time is not in custody.
In other words, shut your trap when in custody or under detention, because anything you can say or reveal will be used against you. Self-incrimination is how cops get authority to hold you they didn’t have initially. You give them the cause to seize you.
Whence Miranda rights?
When you “reasonably feel that [your] freedom of action has been restricted” as if you were under “formal arrest,” guess what: You are under arrest.
*** Miranda Warnings should be fully read from an agency-issued card or Waiver Form as follows: ***
Before we ask you any questions, you must understand your rights: You have the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time. You also have the right to stop answering questions at any time until you talk to a lawyer.
A suspect shall be advised of the name(s) and authority of an interviewing officer and the nature of the matter in question. Once a suspect invokes the right to counsel or silence, the interview into that particular offense shall cease. Only when a suspect voluntarily reinitiates an interview may an officer recommence questioning.
So, according to Chattanooga police officers’ rules, if you are not free to leave, you are under arrest, and the officer should somehow determine that, and read you your rights. An officer may continue asking questions, however, when the citizen “reinitiates an interview.”
Once a suspect invokes the right to counsel or silence, the interview into that particular offense shall cease. Only when a suspect voluntarily reinitiates an interview may an officer recommence questioning.
Flapping your lips — bad. Rules make it very clear that if you’re not free to leave you are undergoing a custodial arrest when you are under custodial arrest, the rules say that the officer is supposed to read your Miranda warning before you make speech or give evidence useable against you in court.