California is notorious for their perplexing and convoluted firearm laws, each of which must be read in conjunction with the federal and local laws. Often, active members of the firearms community know more about the details of these laws than their law enforcment counterparts. As we have seen on many occasions, law enforcement officers often decide to err on the side of seizing firearms and arresting the individuals where they are unsure of these laws.
I have encountered many situations where the client has exercised their right to remain silent, only to be coerced into talking or accused of being unresponsive to police requests – but somehow they almost always “consent” to a law enforcement officers request to search their vehicle and/or person. In these situations, exercising your civil right to remain silent and be free from unlawful searches and seizures often becomes a “he said/she said” situation in court.
To top this off, the United States Supreme Court ruled that suspects must: 1) affirmatively state their intent to remain silent and 2) request a lawyer when being questioned by police in order for statements they make to be suppressed. The court was divided 5 to 4. Justice Sotomayor, in a dissent wrote:
“Criminal suspects must now unambiguously invoke their right to remain silent – which counterintuitively, requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.
The case is Berghuis v. Thompkins, 08-1470 and the opinion is here.
In times of an emergency, having an attorney’s business card is good, but insufficient in light of the Berghuis case. So, we thought we provide a little assistance. Davis & Associates is proud to provide their Tear Away Card.
With simple to follow instructions, users can simply “tear in case of emergency.” Underneath the tear-away strip are three simple instructions: 1) Remain calm; 2) Don’t talk; and 3) Call an attorney. Follow those instructions and hand the law enforcement officer the tear-away strip, which puts a piece of physical evidence into the officer’s hand, clearly stating on the backside of the strip that you are exercising your right to remain silent, that you want to call your attorney, and that you do not consent to a search without a warrant. Not only does the tear-away place you in compliance with the Berghuis case, but the physical existence reduces the chances of any “he said/she said” challenge in court.
To request a card, simply request one via e-mail or send a self addressed stamped envelope to:
Davis & Associates
Tear-Away Card Request
30021 Las Ramblas, Suite 300
Rancho Santa Margarita, CA 92688