Substance Users Now Plead the Fifth at Their Peril - Page 2

By Matt Harvey 07/25/13

A recent ruling by the Supreme Court threatens to limit a suspect's right to remain silent. For drug users, drunk drivers, drug runners—and everyone else—this is very bad news.

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Genovevo Salinas's 1967 mugshot photo

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“The Court’s decision is a horrible ruling that emasculates the Fifth Amendment,” Cohen says. He warns that depending on how the law holds up on a state level, it may only be a matter of time before police and prosecutors begin using Salinas-like reasoning as part of their prosecution strategy.

Civil libertarians claim that the end result of Salinas will be more arrests, and convictions, of substances abusers of all stripes. The CATO Institute, which had filed an amicus brief in favor of Salinas, crystallized such worries on its blog after the decision, writing: “[T]he Supreme Court has complicated the law for persons who are the most vulnerable—persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol.” These “most vulnerable” groups—to which easily could have been added drug users—were the very ones whose rights the 1966 Court intended to protect with Miranda.

If considered at all, many will no doubt dismiss Salinas as a fluke with no bearing on their own drug-free, non-alcoholic lives. But who can say they haven’t had the anxiety of heading home after a few too many drinks, eyes glued to the road, hands gripping the wheel, concentrating on not going too slow or too fast or swerving into the yellow line—all to avoid the myriad “probable causes” used to stop potentially tipsy drivers? For that reason, many DUI defense attorneys have long advised worried would-be drunk drivers to always remain silent at checkpoints.

But after Salinas, you can throw that strategy out the window. Refusing to answer questions can now be used as probable cause that you are drunk—unless you have the nerve and wits to explicitly (and politely) tell the cop that you invoke the Fifth Amendment to not self-incriminate and that if he intends to continue to question you, you want your lawyer to be present.

Those closest to the ground in the “War on Drugs” will obviously bear the brunt of Salinas’s impact. I interviewed several drug users with long records and all agreed with Cohen about the need to zip your lips if you find yourself under scrutiny. “As soon as they find anything, or claim they have evidence against you, plead the Fifth, lawyer up,” says Seth L., who has been arrested for drug offenses in three states. In his experience, the one wild card is a “cool cop,” but even then—and here another consensus arises—that officer, even if he wants to give you a break, is constrained by bureaucracy. Once you’re taken down to the station, it’s out of the cop’s hands.

Asked if he was read his Miranda rights by the police who were busting him, drug runner-user Joe Diaz says, “No, no, no, none of that shit.” 

Seth also cautions not to trust officers who try to ease your fears by telling you that information can be kept “off the record,” and similar gambits.

To those frequently targeted by New York City’s “Stop and Frisk” policies, the question of whether or not you are actually “in custody” can be academic. (Other cities across the country have similar policies; even without a stated policy, profiling is a common police practice.) A few low-level drug offenders from different local neighborhoods painted a picture of being handcuffed at whim by cops who descend on them for perceived offenses like “trespassing,” then haul them down to the station to be strip-searched for drugs and finally book them. Whether it’s for “trespassing,” “observed sale” or even "observed possession," Joe Diaz says with a laugh, “Never, ever, do they read you your rights. They just lock you up and put you through the system.”

Just in the last month, Diaz was arrested for “trespassing”—in his own building—which led to a drug possession charge, and briefly being handcuffed in a park for “observed sale,” but then let go after the subsequent search turned up nothing. Asked if he was read his rights in either instance, Diaz says, “No, no, no, none of that shit.” The fact that he wasn’t technically under arrest didn’t stop the officer in the park incident from trying to trick Diaz into confessing to have passed money to another suspect using several seemingly innocent ruses in both Spanish and English. (John T. says that he wasn’t read his rights when arrested in Maryland.) 

But if you try to bring that up in court, Ricky says, “They just lie.” This harsh assessment is echoed by a serving city Court Officer, who withheld his name so as not to offend his employers. “I see cops lie every day about what they see and the reasons they arrest people,” he says, singling out seemingly improbable observations that narcotic officers present to judges as the rationale for searching a suspect. 

Ricky R. proposes a simple but practical solution for the criminal justice system to consider: a card, dated and signed by a suspect that he has been notified about Miranda at the time of arrest. Good luck with that.

As the Salinas decision suggests, there is a thinning line between “answering a few questions” and being arrested. That line is the Fifth Amendment. It may be wise to carry a copy of it in your wallet, along with your driver’s license and the number of a good lawyer who will take your call.

Matt Harvey is an award-winning freelance journalist whose writing has appeared on AnimalNY.comBlack Book, the New York Post and the New York Press, among other publications. He lives in Manhattan. 

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Matt Harvey is an award-winning freelance journalist whose writing has appeared on AnimalNY.com, Black Book, the New York Post and the New York Press, among other publications. He lives in Manhattan. You can follow Matt on Twitter.