The best way to tell boys about how men defend constitutional rights is to tell a story.
Meet Billy, a character whose experiences reveal the conflict with the state that awaits them as men.
By David Tulis / Hot News Talk Radio
Billy is 19, and he’s ready to go to work. He has a job for a housing contractor, and he’s packed lunch. His tools and helmet are in a locked rusty trunk in the bed of his old pickup truck. Inside a briefcase is a magazine, a Paul Johnson history book, and a loaded .380-caliber automatic for which he has no permit to carry concealed.
Just on the other side of the river a cop pulls him over. In his rear-view mirror, Billy watches the officer approach. The man in blue invites him to lower his window. Billy does, a mere 2 inches.
“What’re you up to, and where ya headed?” bellows the officer. “Lower the window.”
“No, thank you, sir. It’s down enough for me to hear you, and for you to hear me.” Billy has the wherewithal to speak clearly, with volume enough for his voice to flow up to the officer with a respectful glint.
‘State your authority’
Billy knows that to stop him the officer has to suspect him of a crime, have seen him commit a crime or a moving traffic violation, or have a warrant for his arrest or a warrant signed by a judge for the car to be seized. His main position is: State your authority.
“Officer, could you state your authority for stopping me?”
“Do you have anything illegal in this car? Would you give me permission to search your car — just to make sure everything is safe?”
Billy is having a bad day. He has an illegal gun in his briefcase, and doesn’t intend to be searched nor to be waylayed enroute to work. Here’s the sum of his refusal, his argument for upholding law and good government as the officer defies the legal conventions designed from the founding to restrain his reach.
➤ “Officer, I make no statement of any kind. I make no statement absent my attorney, and I have a right to an attorney in any police interrogation.”
➤ “Officer, if I’ve committed a driving infraction, please inform me of the charge and cite me to city court to deal with it. But I make no statement and don’t believe I’ve done anything wrong.”
➤ “Please state your authority for stopping me. Am I sought in an arrest warrant? Sir, am I suspected of having been involved in a crime? Do you have probable cause? Do you have reasonable suspicion?”
➤ “Officer, am I free to leave?”
Billy’s last question should have come first. But he said the other things to help clarify in his own mind — and that of the officer — the situation the cop faces. The cop cannot legally detain a motorist without probable cause or reasonable suspicion. This requirement is upon his state of mind. Billy intends to avoid any conversation that might GIVE the cop probable cause he now doesn’t have.
➤ “Officer, am I free to leave?”
On hearing this politely but firmly offered question the officer says, “Sir, do you give me permission to search your car? I would like things to go easy on you today, and for you to grant me permission to search your car. If you don’t let me, I will cause you a great deal of trouble, and if I have to call the dog on you you’ll be in really big trouble.”
Should Billy feel threatened, especially since the cop is speaking to him in his barking command voice? No. Should he contribute to what appears to be a bad day by the officer, who’s just doing his job? It doesn’t matter. For cops, intimidating travelers exercising their liberty of movement is routine, and he has no personal stake in the outcome of the encounter except if he can make a bust. The officer can lie and deceive, whereas the member of the public cannot.
➤ “Officer, I make no statement and do not consent to a search. I believe you are detaining me without warrant, and hence may be involving yourself in an illegal and possibly actionable wrong against me. I ask you to cease and desist. AM I FREE TO LEAVE?”
In law, a legal wrong is known as a tort. Even cops can be accused of torts, of acting outside their sphere of authority, or acting outside the scope of a law that otherwise gives them police power.
LESSON LEARNED: On the side of a street, in business, in the workplace, at the door of your house, require the state actor, as we call him, to state his authority. Billy’s streetside scenario acts itself out in other spheres, too, such as regulatory enforcement or an encounter with an executive agency supervising some ostensibly licenseable act or privilege. A privilege is some special permission, given for such things as hunting, fishing, driving, earning a living. In sum, Billy’s encounter teaches us to require the state actor to state or show his authority.
‘Is it warranted?’
Billy’s day is going to get even better. He’s working as a subcontractor for a builder whose office is on the other side of town. The owner of the house, in other words, is absent.
Billy is working on laying carpeting on a staircase near rising from the front door foyer. A rap at the front door. A helmeted worker opens and standing on the front step are two officers.
They are there to conduct a search. “I’m sorry, sir,” interjects Billy. “Do you have a warrant? *** I am sorry, officer, no one here is able to give you consent to the search. This property is not ours, and we do not have authority to grant consent. The owner is John Doe at ABC Properties over on Stanford Boulevard. *** Officer, do you have a warrant? For whom are you searching? Your warrant has to identify the person or thing sought, and be signed by a judge under penalty of perjury. If you don’t have that, you’ll have to go talk to a judge about it.”
Under the 4th amendment to the U.S. constitution and in Article 1 of the Tennessee constitution, section 7, searches of person or property are forbidden unless they have warrant. They must have a reason, in other words — a suspicion of a crime, evidence of a crime, report of a crime. People are secure in their persons, houses, papers and possessions from unreasonable searches and seizures. Searches are forbidden “without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence.” These are “dangerous to liberty and ought not to be granted.”
LESSON LEARNED: An informed citizen brings inefficiency to government. A stickler for his rights, he forces state actors to mind every P and Q that are part of the defense of the free man. No warrant, no search. A defective warrant for a search that yields incriminating property that could be the basis of a criminal charge will be challenged in court; the poisoned fruit of an illegal search will be tossed, and the state will be unable to prosecute.
Close your yap
What about Billy’s pistol? The danger in carrying it is that he will be tempted to be honest with a cop or an official, and spill the beans to his own injury.
Billy’s biggest potential enemy in a confrontation with the state are his lips. By flapping gums at a roadside chat with an officer he gives the officer probable cause to conduct a search without his permission. By conversation with a federal investigator he is later trapped in an inconsistency and charged with false statement. In an interview with FBI agents, he is trapped by FD-302, a report of his interview by one of two agents who visit him.
Billy knows that if he is a suspect in a crime, or is interviewed by officials in any investigation, his words may be used against him. There is no harm in saying nothing.
“Sir, I make no statement. I have nothing to say unless I am in the presence of my attorney.” It doesn’t matter that he doesn’t have an attorney on retainer, or even know one personally. Billy doesn’t have to answer questions such as, “Do you have anything illegal in this car?” Answering “no” is an answer he shouldn’t give. Of course if he says “yes” he is giving probable cause to the officer to search his house, his storage unit, his office, his worksite or his parked pickup.
Belligerent claimant in person
Confronting a search party or a cop on the side of the highway makes for a bad day, at least initially. It becomes truly a bad day if he doesn’t insist on his rights in person, at the moment they are challenged, and that he demands his rights be honored and that he not be subject to arbitrary state action.
Maybe Billy shouldn’t be carrying a .380-caliber pistol in his ratty briefcase. But because he could be charged for carrying a weapon concealed without a permit (carrying a weapon with the intent to go armed), he has every interest to be scrupulous in defending the external border of his property and person. He does that by saying “No, sir” to anyone who demands to search his car, his briefcase or his house.
He is acting that most essential part of anyone living in a free state and intending to keep it free — and himself within it.
That is the belligerent claimant in person.
LESSON TO LEARN: Warrant for being a “belligerent” claimant comes from a U.S. district judge James Alger Fee, writing in United States v. Johnson, 76 F. Supp. 538, 539 (D. Pa. 1947), a case that centers on an alleged violation of defendant John Memolo’s “constitutional right that he be not compelled in this criminal case to bear witness against himself.”
The privilege against self-incrimination is neither accorded to the passive resistant, nor to the person who is ignorant of his rights, nor to one indifferent thereto. It is a FIGHTING clause. It’s benefits can be retained only by sustained COMBAT. It cannot be claimed by attorney or solicitor. It is valid only when insisted upon by a BELLIGERENT claimant in person.” McAlister vs. Henkel, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671; Commonwealth vs. Shaw, 4 Cush. 594, 50 Am.Dec. 813; Orum vs. State, 38 Ohio App. 171, 175 N.E. 876.
The one who is persuaded by honeyed words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. Once he testifies as to part, he has waived his right and must on cross examination or otherwise, testify as to the whole transaction.
He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus. The holdings in the cases of this type cited by defendant are sound, but they do not apply here because Memolo did not resist, he acquiesced. Likewise, he did not have himself held in contempt or arrested for refusal. Furthermore, he had the documents in his possession and returned them. Finally, he did testify as to such matters many times before this grand jury and now expressly waives the privilege against self-incrimination as to this testimony. (emphasis added).