Tag: 5th amendment

Appeals Court Upholds Police Right to Compel Biometric Device Unlocking

The US Court of Appeals for the Ninth Circuit has issued an opinion in a case involving the police forcing a suspect to unlock their phone via a biometric feature on the device.

The court said this practice, at least in the case it considered, is not unconstitutional.

The appeal was lodged by Jeremy Payne, a defendant in a drug distribution case, who was forced (“compelled”) by the police to unlock his phone with his thumbprint.

We obtained a copy of the opinion for you here.

Payne was hoping to have his motion to suppress evidence accepted – after this was previously denied by a district court – but the Court of Appeals found that obtaining evidence in this way does not mean that the police violated his Fifth Amendment protection against self-incrimination.

And while the appellate court said that other circuits and the Supreme Court are yet to rule if the forced use of a biometric to unlock a device is “testimonial” – in this case, the forcible use of the suspect’s thumb “required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking.”

The three-judge panel was satisfied that the police could have accomplished the same task “even if Payne had been unconscious” – so they saw no evidence of the suspect and later defendant being driven to engage in self-incrimination.

Namely, the physical action of forcibly pressing the thumb onto the device “did not intrude on the contents of Payne’s mind.”

Another reason the judges sided with the police is that Payne was not made to “acknowledge the existence of any incriminating information” – he was “merely” forced to provide access “to a source of potential information.”

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Dismantling the Constitution: Police No Longer Have to Honor the Right to Remain Silent

We are witnessing the gradual dismantling of every constitutional principle that serves as a bulwark against government tyranny, overreach and abuse.

As usual, the latest assault comes from the U.S. Supreme Court.

In a 6-3 ruling in Vega v. Tekoh, the Supreme Court took aim at the Miranda warnings, which require that police inform suspects that they have a right against self-incrimination when in police custody: namely, that they have a right to remain silent, to have an attorney present, and that anything they say and do can and will be used against them in a court of law.

Although the Supreme Court stopped short of overturning its 1966 ruling in Miranda v. Arizona, the conservative majority declared that individuals cannot hold police accountable for violating their Fifth Amendment right to remain silent.

By shielding police from lawsuits arising from their failure to Mirandize suspects, the Supreme Court has sent a message to police that they no longer have to respect a suspect’s right to remain silent.

In other words, concludes legal analyst Nick Sibilla, “the Supreme Court has effectively created a new legal immunity for cops accused of infringing on the Fifth Amendment’s protection against self-incrimination.”

Why is this important?

In totality, the rights enshrined in the Fifth Amendment speak to the Founders’ determination to protect the rights of the individual against a government with a natural inclination towards corruption, tyranny and thuggery.

The Founders were especially concerned with balancing the scales of justice in such a way that the innocent and the accused were not railroaded and browbeaten by government agents into coerced confessions, false convictions, or sham trials.

Indeed, so determined were the Founders to safeguard the rights of the innocent, even if it meant allowing a guilty person to go free, that Benjamin Franklin insisted, “It is better a hundred guilty persons should escape than one innocent person should suffer.”

Two hundred-plus years later, the Supreme Court (aided and abetted by the police state, Congress and Corporate America) has flipped that longstanding presumption of innocence on its head.

In our present suspect society, “we the people” are all presumed guilty until proven innocent.

With the Vega ruling, we have even fewer defenses for warding off government chicanery, abuse, threats and entrapment.

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Supreme Court Issues Ruling, Gutting Miranda Rights And Threatening The Fifth Amendment

On Thursday, the Supreme Court issued a ruling in Vega V Tekoh, a case involving the administration of Miranda rights, with the court ruling that a suspect’s words or statements can be used in court regardless of their Miranda rights. 

For background, these are the facts of the case in question:

Terence Tekoh worked as a patient transporter in a hospital in Los Angeles. After a patient accused him of sexual assault, hospital staff reported the allegation to the Los Angeles Sheriff’s Department. Deputy Carlos Vega went to the hospital to ask Tekoh questions and take Tekoh’s statement. Although the parties described vastly different accounts of the nature of the interaction between Tekoh and Vega, it is undisputed that Vega did not advise Tekoh of his Miranda rights before questioning him or taking his statement.

Tekoh was arrested and charged in California state court, but a jury returned a verdict of not guilty. Following the acquittal on the criminal charge, Tekoh sued Vega, alleging that Vega violated Tekoh’s Fifth Amendment right against self-incrimination by taking his statement without first advising him of his Miranda rights.

Justice Samuel Alito issued his ruling, a count of 6-3, deciding that using such statements outside of Miranda rights is not a violation of a defendant’s rights and does not give them the right to sue the court for such use. 

Miranda prescribed a specific and protective set of warnings to ensure that criminally accused suspects were made aware of the Fifth Amendment’s decree that no person “shall be compelled in any criminal case to be a witness against himself.”  

Miranda is also one of the court’s most culturally famous decisions. Americans know Miranda. More accurately: Americans know their Miranda warnings. Even if they cannot recite the lyrics to the national anthem or the Pledge of Allegiance, they likely can recite Miranda’s warnings: 

  • You have the right to remain silent;
  • Anything you say can and will be used against you in a court of law;
  • You have the right to a lawyer;
  • If you cannot afford a lawyer, one will be appointed for you.

Generally, if the police obtain a suspect’s statement violating Miranda, the government cannot use that statement against the defendant in court. 

But can the defendant later sue the police for violating the defendant’s constitutional rights? 

The Supreme Court now says, No. 

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Jan 6 Chairman Bennie Thompson says using the 5th Amendment implies guilt

Representative Bennie Thompson, who is the chairman of the January 6 committee in the US House of Representatives, said on Thursday that when a defendant uses their right to remain silent under the 5th Amendment, “in some instances, that says you are part and parcel guilty to what occurred.”

Thompson made the remarks to Rachel Maddow, who said it was “a fascinating pivot point in this investigation.” Thompson’s belief that a defendant’s use of their 5th Amendment rights infers guilt upon that person is not upheld by the Supreme Court.

In Griffin v. California in 1965, the Supreme Court upheld that if a defendant uses their 5th Amendment right to not incriminate themselves, neither the state, nor judge, may use the use of that right to tell the jury that silence is evidence of guilt.

Thompson, from his position as chairman of the House Speaker Nancy Pelosi’s special committee on the events of January 6th, has no basis to make this claim and this claim could indicate that the committee is already biased against those they have subpoenaed in their case. Pelosi alone appointed all members of the committee without input from the minority leader Kevin McCarthy.

Thompson made the remarks as the committee has issued subpoenas to more and more people who the committee believes is responsible for what they have termed an “insurrection” on January 6, when some Trump supporters left a rally at the ellipse in Washington, DC, and went to the Capitol.

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This Forfeiture Victim Waited 2 Years Without a Hearing. Is That Due Process?

Civil asset forfeiture laws, which allow the government to seize property allegedly tainted by crime without ever charging the owner, are fundamentally rigged in favor of the law enforcement agencies that get a cut of the proceeds. Even when an owner manages to challenge a forfeiture by arguing that he was not involved in any criminal activity, he has the burden of proving his innocence, and the process often costs more than the property is worth. Adding insult to injury, the government can drag out the process for so long that even innocent owners feel compelled to surrender. The Institute for Justice (I.J.) challenges that aspect of civil forfeiture in an appeal it filed this week, asking the Supreme Court to rule that due process requires a prompt post-seizure hearing.

Early civil forfeiture laws in the United States recognized the importance of that safeguard. The Collections Act of 1789, I.J. notes, required a hearing within 14 days after the government filed its forfeiture complaint, which was supposed to happen shortly after the seizure. A decade later, Congress amended the law to emphasize that forfeiture suits must be commenced “without delay.” Nowadays, by contrast, property owners routinely wait months or years before they get a chance to challenge a seizure before a neutral adjudicator.

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