Substance Users Now Plead the Fifth at Their Peril

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

John T. was 22—still in college, no police record—when the police pulled him over on the highway one night. He had just copped heroin in Baltimore, where white kids in minority neighborhoods often arouse law-enforcement suspicion. “I was young, I was the lead in my school play, and I didn’t want my parents to find out,” he recalls. Before the cop could bang on his window and shine a flashlight in his eyes, John managed to swallow the five bags of heroin he had scored and proceeded to “talk his way out of it” by telling the arresting officer that he had been to the ghetto area to buy “a special type of seltzer.”

The effectiveness of his desperate maneuver was foiled, however, when the cop found an eighth of weed on John’s friend in the passenger seat. Panicking, his buddy quickly admitted that they had in fact been copping smack. Because they couldn’t find his drugs, John T. lucked out: He was charged with a misdemeanor and only spent a couple of days in the system. All the while, the beginning use was at serious risk as his body metabolized the huge dose of narcotics.

For many serious substance abusers, who carry the onus of low-level illegal activity, at least one such encounter with police before getting sober is almost inevitable. Knowing your rights—and knowing them well enough to retrieve the knowledge even when hammered or high—can make the difference between a sentence of community service and jail time.

If you’re like John T., before you can even think twice, you find yourself cooperating—answering (or fabricating answers) to the cop's interrogation—and hoping for the best. Not to cooperate means remaining silent, a risky strategy. A police officer may view that as a challenge to his authority—or a sign of guilt—and double your trouble.

John T. was too green to ever imagine doing that. Luckily, the bags didn’t burst in his stomach and John didn’t serve any time, but he would act differently now. Reminded of his right to an attorney—and to invoke the Fifth Amendment so as not to incriminate himself—he says that if he was ever busted again, he would hope to be wise enough to go that route. “I didn’t know what I was doing and I was more terrified of my parents than the law,” he says. “I was a mess, but it could have been much worse.”

People who run into problems running their mouth like John T. and his friend tend to be first-time offenders, says Irving Cohen, a noted New York state–based criminal defense attorney who made his bones with a 40-year record of clearing defendants on draconian Rockefeller drug charges. Suddenly confronted by The Law, he says, their reflex is to please authority: “They’re scared not to talk to the police because otherwise it looks like they have something to hide. The average person intuits that invoking the Fifth will make things even worse because it suggests guilt."

The reality, however, is the reverse. If you believe you’ve done something illegal, or even if you haven’t and the cops think you have, nothing you say is likely to help your cause, so the best thing to say is, “very politely,” in Cohen’s words, “I don’t like the way you’re treating me—you act like I’m a criminal. I want to talk to a lawyer.” Even better is to also have a name and number of an attorney handy to refer the police to. 

“[The cops] will respect you more if you do that. They laugh when they get over on people,” Cohen adds.

The key to a successful strategy is the good old Fifth Amendment—and knowing how and when to “invoke” it. The Fifth secures your fundamental right to silence when being questioned by the cops. Equally significant, it also guarantees that your silence cannot be used against you in a court of law. Joe Diaz, a 47-year-old cocaine and heroin runner and user—who has been picked up twice in the last month, adding to his long trail of busts in New York City—echoes the common understanding of the "professional criminal": “The cops try to make you talk, but it's best just to say nothing.”

But Diaz, like most Americans, hasn’t yet gotten word that thanks to a brand-new Supreme Court ruling, that time-tested strategy is outdated: Simply remaining silent can now be viewed as an admission of guilt.

Most Americans haven't yet gotten word that this time-tested strategy is outdated: Simply remaining silent can now be viewed as an admission of guilt.

Last month, in a slim 5-4 majority, the Supreme Court handed down a decision that is an essential FYI for anyone at risk of driving drunk, carrying drugs or sometimes just being in the wrong place at the wrong time. Unfortunately, the ruling was not widely publicized because other, historic Court decisions about gay rights and voting rights grabbed all the media attention.

The Court was considering whether the Fifth Amendment right to silence applied not only to trials and police interrogations after arrests but also before a suspect is arrested and given Miranda warnings.

As anyone who has ever watched Law and Order knows, Miranda rights advise a suspect that “anything [he] says can and will be used against [him] in court.” On TV that is typically the cue for the character to call for his lawyer. In real life, however, many of us are not so calm under pressure.

The case—Salinas v. Texas—dated back to 1985, when Genovevo Salinas, the prime suspect in a double murder investigation, had agreed to go down to the station house to surrender his shotgun and “clear things up.” Because he was not technically "in custody," he was not read his Miranda rights.

After volunteering answers to questions for an hour, Salinas fell silent when prodded by a specific question about his gun's shell casing. Prosecutors used Salinas’s “uncomfortable silence”—during which he “bit his lip and shuffled his feet,” according to the police report—as an admission of guilt. Salinas was soon found guilty in court. Salinas appealed his conviction, claiming that his silence should have been understood to include invoking the Fifth.

In its decision, the Court ruled that remaining silent before arrest is an admission of guilt—or, at least, can be used as such at the trial. In a nutshell, Salinas had to expressly invoke his Fifth Amendment right to silence in order to benefit from it: “So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation,” the majority read in part. “[The Fifth Amendment] does not establish an unqualified ‘right to remain silent’”—it only protects a suspect from being compelled to testify against himself in court.

In their dissent, the minority voiced their alarm that the "radical" decision “undermines the basic protection that the Fifth Amendment provides."

“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.