fourth-amendment fifth-amendment bill-of-rights civil-rights miranda-warning
Lawyer-approved statement to say to the police to unequivocally retain all rights
<p>I understand that I have the right to remain silent, and that I shouldn't need to explicitly say that in order for my rights to be in effect. But we don't live in a perfect world. And should we end up in court, I would like to be able to tell the court that I did—in fact—explicitly tell the police officer(s) at the scene that I did—in fact—retain all of my rights, lest the police use some sort of convoluted interpretation of my actions (or inactions) to falsely conclude that I have given up my rights.</p>
<p>Would love feedback on the wording. Also would love any references to relevant case law. Thanks!</p>
<p>Current statements/questions (which should be repeated as necessary):</p>
<ol>
<li>Am I free to go?</li>
<li>I want a lawyer.</li>
<li>I do no consent to any searches.</li>
</ol>
<hr />
<p>Original draft statement:
<em><strong>I retain and invoke all of my rights, including—but not limited to—my 4th amendment right against unwarranted search and seizure of my person and property, and my 5th amendment right to remain silent.</strong></em></p>
<hr />

<p>It does matter if you invoke your right to silence. First, if you do, that affects what police can do (they have to stop interrogating you). Second, it plays a role in &quot;adoptive admissions&quot;. If the police are asking you questions (you are not under arrest) and they make some statement that implies that you committed a crime, your silence can be used against you: it can be taken to be a form of admitting that you committed the crime. The premise is that if they imply that you murdered X, such an accusation if false would be so outrageous to a reasonable, innocent person that they would protest, therefore your lack of protest (denial) is tantamount to a confession. However, you can protect yourself by preemptively invoking your right to silence. See <a href="https://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf" rel="noreferrer">Salinas v. Texas</a>:</p>
<blockquote>
<p>a witness who “ ‘desires the protection of the privilege . . . must
claim it’ ” at the time he relies on it...</p>
<p>the  Fifth  Amendment  guarantees  that  no  one  may  be“compelled in
any criminal case to be a witness against himself,” not an
unqualified  “right  to  remain  silent.”</p>
</blockquote>
<p>Since any right can be waived, at any time, there is no magic expression that you can utter that nullifies a future waiver of a Constitutional right. The closest that you can come is asserting that you hereby exercise your right to an attorney and that you will not speak until you have consulted with your attorney (then you better shut up). Lawyering up only prevents them from further interrogating you. Don't hedge: say &quot;I am asserting my right to silence and refuse to speak without a lawyer&quot;. &quot;I think I should...&quot; is not a definitive assertion of your rights.</p>
<p>If you are (briefly) stopped, police may ask if they can search you or your property. If they have a warrant or probable cause, there's really no point in saying anything. In the case that consent is required, you just have to remember to not consent, and it would not be a bad idea to explicitly deny consent. Each and every time they ask. The same with their statement &quot;It would really help us if you would come to the station to answer a few questions&quot;. If you are under arrest, then you have to go with them: ask &quot;Am I free to go?&quot;. You can say &quot;I do not consent to any search&quot;.</p>
<p>Your proposed declaration of rights is pretty vague. Exactly what rights are you talking about? Your right to freedom of religion? Your right to bear arms? Your right to not have to quarter soldiers in your house? Your right to an education? Many detainee statements have been found by the courts to be ineffective because they were unclear. You could give it a shot and see if the Supreme Court accepts your &quot;universal assertion of rights&quot; as effectively invoking your specific 4th and 5th amendment rights. Unless you have something in mind (like, the 6th amendment), the most effective statement is a very specific one. Silence, lawyer, no search.</p>

<p>You do not waive your rights, but you may chose not to exercise them. Those are different concepts.</p>
<p>If you speak, you do not &quot;waive&quot; your right to remain silent. At any moment, you may decide to start using that right and stop talking. You have not &quot;waived&quot; your rights.</p>
<p>But, OTOH, it does not matter that you tell the officer that &quot;I have the right to remain silent.&quot; If you do voluntarily speak, the officer is under no obligation to ignore and forget what you voluntarily told him. &quot;Your honour, I did admit to the crime but I had told the police officer that I retained my right to remain silent.&quot; would be a very poor defense.</p>

<p>All of your proposed language is fine, but the more important thing is to say, &quot;I want a lawyer.&quot; If the police have any follow-up questions, say, &quot;I want a lawyer.&quot; If they ask if they can take a look around your car while you wait for your lawyer to show up, say, &quot;I want a lawyer.&quot; Those should be the only four words that come out of your mouth.</p>
<p>Although this generally requires them to stop asking you questions -- thus protecting your right to counsel and against self-incrimination -- it doesn't change your rights under the Fourth Amendment. They shouldn't ask you for consent to search your car, but it may be that under the circumstances, the Fourth Amendment would allow them to search your car anyway.</p>

<p>Your statement is unnecessarily elaborate.  You just need to invoke your right to remain silent and talk to a lawyer.  Retaining your rights against searches is simply a matter of not consenting to any searches.</p>
<p>Ken White, a criminal defense attorney and former federal federal prosecutor, <a href="https://www.popehat.com/2017/12/04/everybody-lies-fbi-edition/" rel="nofollow noreferrer">gives the following suggested statement</a>:</p>
<blockquote>
<p>If the FBI — or any law enforcement agency — asks to talk to you, say <strong>&quot;No, I want to talk to my lawyer, I don't want to talk to you,&quot;</strong> and repeat as necessary.</p>
</blockquote>
<p>The most important part is not to say anything other than that until you've talked to a lawyer.</p>

<p>Get a business sized card, which says &quot;My name is ______. I demand a lawyer to be present during all questioning. I do not consent to any searches.&quot; Hand it to any cop who detains you. Have spares; you'll probably need them.</p>
<p>Thanks to various SCOTUS rulings, if you have not requested a lawyer, your right to remain silent must be expressly invoked at every refusal to answer a question, and if you don't invoke your right to remain silent, they can introduce your silence against you in court. Once you have requested a lawyer, questioning must cease and not resume until the lawyer arrives. If you want to answer any of their questions, have your lawyer relay your answers; answers relayed in this manner cannot be introduced as evidence against you in court.</p>
<p>If, after handing the police this card, the police search anyway, then have the lawyer submit another card like this one at the motion to suppress. Having the statements in written form eliminates any ambiguity about the intent of your statement. The police can easily twist an oral refusal:</p>
<ul>
<li><p>The policeman asks, &quot;Do you mind if I search your car?&quot; You say &quot;Yes,&quot; meaning that you do mind and are not giving consent. On the witness stand, the policeman will testify that he asked if he could search your car and that you said yes.</p>
</li>
<li><p>The policeman asks, &quot;May I search your car?&quot; You say &quot;No,&quot; meaning no. On the witness stand the policeman will testify that he asked if you minded if he searched the car, and you said that you didn't mind.</p>
</li>
</ul>
