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Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by fleitz on Monday June 17, 2013 @10:15PM (#5897149)
Am I under arrest?

  No? Walk away.
  Yes? Please read me my rights.
Problem solved. Don't answer half the questions, immediately ask why you are being detained, and if you are under arrest.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by joshavant on Monday June 17, 2013 @10:28PM (#5897176)
To be sure, there's such a thing called 'custodial interrogation' which is, essentially, a situation where a person's freedoms are restrained, but not fully under arrest. http://en.wikipedia.org/wiki/Custodial_interrogation

I've previously heard the suggested language of 'Am I being detained or am I free to go?', which seems good enough to make the situation a lot less ambiguous.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by pondababa on Monday June 17, 2013 @11:58PM (#5897435)
You can be detained without being under arrest. When you get pulled over for a traffic stop, you aren't under arrest, but you are being detained.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by aqme28 on Tuesday June 18, 2013 @12:28AM (#5897546)
That assumes people are smart and informed. What happens if someone less informed than you gets in a bad situation with the police? Should they be punished for it?
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by ctdonath on Tuesday June 18, 2013 @09:46AM (#5899092)
According to the courts, ignorance of the law is no excuse.

Hence the importance of keeping major legal issues as simple as the Founding Fathers instantiated them in the Constitution and Bill Of Rights: the common man is presumably incapable[1] of keeping up with voluminous manifestations of nuances of legislative and case law. If the police aren't expected to keep up with it all, in no way should prospective detainees (i.e.: all of us) be as well.

But, alas, the legal system being what it is, that's why those of us smart enough to try to keep up with such matters must do so: protect, at least, our own skins.

[1] - Not in an insulting way; there's a reason we pay lawyers big bucks to know such things.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by bobwaycott on Monday June 17, 2013 @10:17PM (#5897158)
The critical problem here is the police response to an attempt to walk away. This may lead to an arrest that is aggravated by a charge of resistance. One might be able to fight that away in the courts, but the state of policing over the last few years leaves me feeling quite uncomfortable with the prospect of walking away unscathed.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Monday June 17, 2013 @10:27PM (#5897175)
This could be nitpicking an abbreviated binary choice. The usual advice is to ask if you are free to leave. If the answer is no, then you know you're being detained and can act accordingly.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by bobwaycott on Monday June 17, 2013 @10:35PM (#5897198)
Indeed, asking if you are free to leave is the better question. Not so much an abbreviated binary choice, but more a response to the suggestion as given.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by nknighthb on Monday June 17, 2013 @10:19PM (#5897164)
How do you anticipate a charge of resisting arrest occurring when the cop isn't arresting you?
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by bobwaycott on Monday June 17, 2013 @10:31PM (#5897183)
1: Am I under arrest?

2. No.

1. Okay, I'm going to walk away now.

2. You can't do that. I'm asking you questions and you are not free to leave.

1. But you just said I am not under arrest. Are you arresting me?

2. No.

1. Okay, I'm going to walk away now.

... [a few iterations later] ...

1 starts to walk away.

2 informs 1 that s/he is not free to go.

1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, begins to walk away.

2 performs a physically or verbally threatening action to prevent 1 from leaving--e.g., blocking exit path, ordering to remain in place, etc.

1, on the basis that 2 has said s/he is not under arrest, and tired of the back and forth, continues to walk away or otherwise informs 2 s/he is going to continue to walk away (or ask 2 to leave).

... [several rapidly escalating iterations later ...]

1 attempts to walk away.

2 physically apprehends 1 in some fashion and orders 1 to stop.

1 continues to try to leave.

2 decides to arrest 1 and charge 1 with obstructing, opposing, and endeavoring to prevent (with or without force) an officer in the lawful discharge of his duty. 1 is at increased risk of physical harm from 2 in the course of being arrested as this is the kind of situation that appears many times in cases where an officer uses excessive force to apprehend a 'difficult' individual (whether s/he actually was being difficult or merely attempting to assert his/her rights and avoid being bothered by the officer).

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Monday June 17, 2013 @10:39PM (#5897209)
This is needlessly complicated; instead, I offer:

1. Am I free to leave?

2. No.

OK, now you've made it clear you are under custodial interrogation (I suppose there are safety exceptions to that), Miranda is invoked according to the Orin Kerr, and you can keep your mouth shut beyond the requirement to give your name in some states.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by ctdonath on Monday June 17, 2013 @11:04PM (#5897285)
This.

There was a video a few months ago showing someone recording in-country immigration checkpoints (dozens of miles inland, checking IDs without cause in a very unconstitutional manner). The driver reiterated "am I free to go?" until he got a "yes". Chilling, and informative that "am I free to go?" is the ONLY thing you say/ask. If they say "no", lawyer up & shut up; if "yes", leave.

Only question remaining is at what point does the LEO's refusal to say "yes" or "no" constitute one or the other.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Monday June 17, 2013 @11:27PM (#5897345)
I say the refusal to answer is an answer; since you are asking the very specific question that reveals if you're under custodial interrogation, a refusal to say "Yes" has to mean "No". I mean, unless you get that yes, you clearly can't leave, right?

Furthermore, one could hope that your refusal to answer his questions with anything other than "Am I free to go?" would not be so easy to construe as this sort of silence signaling guilt.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by ctdonath on Tuesday June 18, 2013 @09:39AM (#5899053)
I'd take it the other way. If you're not under custodial interrogation, they have no obligation to tell you anything - so a non-response to "am I free to go?" amounts to "yes". I mean, unless I get that no, they're just stalling for time to find some reason to detain where they otherwise have none. I'd be awfully tempted to include a "if you don't answer the question in 30 seconds I'll assume the answer is 'yes' and I will leave", but methinks that just complicates things. If they can't affirm arrest (however loosely defined), their delaying you is NOT for your benefit.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Tuesday June 18, 2013 @11:03AM (#5899602)
Ah, but they are still spending time on you, being there in your face. If they truly weren't interested in you, then they'd leave in search of easier prey.

Since your leaving could be spun as felony (in at least some jurisdictions) fleeing the police, you'd best not leave without their OK, explicit, or implicit by their leaving first.

Note: don't let yourself get startled by the police into running away. One of the things that reified all I've been reading about the modern police in the last decade or so was retiring and returning to my home town, and one day in 2007-8 a new, improved policeman played a game of chicken with my body and his car, that is, as soon as he noticed me, he veered it on a near collision course. I was an experienced enough pedestrian---which I think is unusual here---that I could tell his vehicle would miss me by a good foot or more and the mirror by at least half that, so I stared him down, and he then veered away. Based on my readings, I have have to assume he was trying to get me to run ("this crazy cop is trying to kill me!"), at which point the crime of fleeing the police could be claimed.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by ctdonath on Tuesday June 18, 2013 @03:06PM (#5901294)
They're checking everyone, and do not take well to anyone who questions their authority with "you have no reason to detain me, so I'll be going now."
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Tuesday June 18, 2013 @03:44PM (#5901531)
And your point is?

Nowhere am I advocating that. I'm only suggesting "Am I free to leave?" and silence in response to anything but an unequivocal "Yes" to the question. And noting their leaving is also an implicit Yes.

Now, depending on your reading of the situation and the cop(s), you could play games with an equivocal answer, i.e. follow with "OK, you are detaining me", and if they object, go back to the free to leave theme, then press them on deciding one or the other. But that's not what I think one should generally do.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by bobwaycott on Monday June 17, 2013 @10:43PM (#5897219)
Again, as specified elsewhere, I am responding to the parent's original suggestion to ask if one is under arrest, and the question of how I anticipate the situation getting out of hand.

Needlessly complicated? I suppose that's a matter of interpretation when you're on the receiving end of a power imbalance and are wanting to both go on your way and assert and protect your rights.

Yes, the shorter path is to ask if one is free to leave, and then respond accordingly. And yet still, it is not incomprehensible that an officer might respond with something more complex than a simple "No" when asked if you are free to leave. Say, something along the lines of, "Yes, as soon as you answer a couple questions." This is much closer to a "no", but still legally debatable (especially within the context of this decision) whether or not you are in a situation in which you may rightfully assert your rights.

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Monday June 17, 2013 @10:58PM (#5897266)
Sure, he could say that, but it still is a "No", you can declare it as as such, and unless he's going to ask you if you're armed or the like he's then made it crystal clear you're now in an custodial interrogation. I really doubt it would be subject to much debate, but then again I really doubt you and he would provide the same accounting of the event unless it was being recorded and he knows it.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by cynix on Monday June 17, 2013 @10:59PM (#5897268)
What if the police officer does not answer your "am I under arrest" or "am I free to go" questions?
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by warmwaffles on Monday June 17, 2013 @11:16PM (#5897313)
You need to reiterate it until you elicit an answer
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Monday June 17, 2013 @11:29PM (#5897355)
Exactly. Elsewhere in this sub-thread we discuss it, and I point out a refusal to say "Yes" to the question "Am I free to leave" is a No, you very clearly can't leave until you get a Yes.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by cynix on Monday June 17, 2013 @11:29PM (#5897354)
Are they legally required to give you an answer? If not, this could go on for hours, and if their intention was to restrict your movement then they've already succeeded.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Monday June 17, 2013 @11:38PM (#5897379)
Who knows, but if they claim their refusal to say "Yes" to the question "Am I free to leave" actually means you were free to leave, I kind of doubt they'll get very far. And the safety exceptions won't be in effect after a few minutes of such obfuscatory questioning.

For that matter, I suspect most will realize that they aren't going to get anywhere with someone who's knowledgeable and disciplined enough to only say "Am I free to leave?", and will move on for easier prey. Spending "hours" in such a game isn't going to generate the arrest statistics they need, they'd only make that sort of investment if it was a really serious felony. (Unless of course their reward was an internal one of successful harassment ... and this sounds very tedious.)

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by passwdispasswd on Tuesday June 18, 2013 @12:07AM (#5897468)
Depending on the facts they already have the right to detain you for 24 hours, or if federal agencies, kidnap you indefinitely. So why do you care so much about an answer to a question that has no power before the force of these people? Just be quiet and hope they leave you alone.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by hga on Tuesday June 18, 2013 @11:19AM (#5899729)
You care because "just stop talking altogether" and staring dumbly at the cop doesn't end the confrontation, unless he then leaves (and if you've tried for a while to get a definitive answer, you might as well quit asking for a while). If you get his OK, then he's not detaining you and you can leave.
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by passwdispasswd on Tuesday June 18, 2013 @12:06AM (#5897463)
Or just stop talking altogether.

You have the right to remain silent, remember?

Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by miles on Monday June 17, 2013 @11:43PM (#5897392)
Re:Do You Have A Right to Remain Silent? Thoughts on Salinas... by durkie on Tuesday June 18, 2013 @12:12AM (#5897484)
let's not forget https://www.youtube.com/watch?v=6wXkI4t7nuc

50 minutes long, but worth it.