Clifton cop faces probe after brake-checking motorist (VIDEO)
A man identified as a Clifton resident posted the video of a cop brake-checking him to YouTube last week.
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Title: N.J. troopers arrest woman for remaining silent during traffic stop
Source:
NJ.com
URL Source: https://www.yahoo.com/news/woman-ar ... affic-stop-sues-143925452.html
Published: May 5, 2016
Author: S.P. Sullivan
Post Date: 2016-05-06 11:08:50 by Deckard
Keywords: None
Views: 15863
Comments: 71
TRENTON — Two New Jersey state troopers cuffed a woman along a Warren County roadway and hauled her in on an obstruction charge because she refused to answer questions during a routine traffic stop, according to dashboard camera footage obtained by NJ Advance Media. The Oct. 16 incident, which happened near the New Jersey-Pennsylvania border on Route 519, is now the subject of a federal civil rights lawsuit filed by the woman, Rebecca Musarra, an attorney from Philadelphia. Musarra claims in the suit the troopers violated basic rules familiar to anybody who's ever watched a police show on TV, including the right to remain silent. She claims at least three troopers insisted during the ordeal that her refusal to answer questions was a criminal act. Spokesmen for the State Police and the Attorney General's Office, which is representing the troopers in the lawsuit, declined to comment on the allegations. But, State Police spokesman Capt. Stephen Jones said in an e-mail, "in every instance where misconduct is alleged against a trooper or troopers, as is the case here, (the division's internal affairs office) will review the allegations and investigate the facts. "In the event that problems are identified, training and/or disciplinary measures are implemented where appropriate." Attorneys for the state have sought in federal filings to have the civil case dismissed, claiming the troopers "acted in good faith and without fraud or malice." They have not yet addressed the specific charges in court papers. NJ Advance Media obtained the footage, along with a dispatch log from that evening, through an Open Public Records Act request filed in April. The documents show Trooper Matthew Stazzone pulled Musarra over just before 9:30 p.m., suspecting her of speeding. He was quickly joined by a second trooper, Demetric Gosa, records show. The dashboard camera footage shows Stazzone approached the vehicle on the passenger side and asked Musarra for her license, registration and insurance. "While you're looking for that, do you know why you're being pulled over tonight?" the trooper asked her, according to the tape. She claims she provided the documents but didn't respond. After asking her several more times, Stazzone walked to the other side of her car, rapping on the window with his flashlight and again demanding a response. "You're going to be placed under arrest if you don't answer my questions," he told her. Musarra claims the force of the flashlight chipped her window. The footage shows she eventually told the trooper she was an attorney and that she did not have to answer questions. Stazzone then ordered her out of the vehicle. As the two troopers cuffed her and walked her toward a troop car, Musarra asked them, "Are you detaining me because I refused to speak?" "Yeah," Stazzone replied, according to the video. "Yeah, obstruction," Gosa added. The troopers placed her in the back of the car and Stazzone read Musarra her Miranda rights including "you have a right to remain silent" — before taking her to the nearby State Police barracks in Washington. State Police did not provide any video from inside the station in response to NJ Advance Media's records request. In her lawsuit, Musarra claims she was patted down twice and cuffed to a bench inside a holding cell. She also claims the troopers denied her request to call her parents, promising to call on her behalf but never doing so. She claims a supervisor, Trooper James Butler, later entered the cell to ask her what had happened. "I said, 'Well, the trooper arrested me for not answering his questions,'" Musarra told NJ Advance Media. "And the supervisor indicated (to me) that was obstruction." New Jersey's obstruction statute defines the criminal act as impeding law enforcement through "flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act." Musarra said Butler then left to review the dashboard camera footage. After about 30 minutes, she claims, he returned and told her "a mistake was made, and to chalk it up to training, and that (Stazzone) was just a rookie." Both Stazzone and Gosa joined the division in 2014, public payroll records show. Reached by phone, Stazzone declined to comment. Gosa and Butler could not be reached. Musarra claims Butler then offered to get her car, which had been towed from the scene, out of impoundment for free as "a favor" and apologized for the incident. She was never formally charged with obstruction or issued a summons as a result of the stop, records show. The whole ordeal lasted about two hours. Musarra, a private attorney for a Delaware firm who sometimes represents immigrant children in legal matters pro bono, said she comes from "a law enforcement family." Her father is a former prosecutor in Warren County and her mother is a former probation officer, she said, and she understands "cops have a difficult job to do." But, she added, "there has to be some sort of accountability." "Who knows what will happen to the next person who comes down the road who decides they have these constitutional rights they want to assert?" Musarra said.
"What happens to them when they don't have the sort of privileges I have?"
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Begin Trace Mode for Comment # 55.
#1. To: Deckard (#0)
You can remain silent but the right to remain silent kicks in after you're arrested.
Correction: You can remain silent but the right to remain silent is only protected after you're arrested.
Wrong again. Any "rights" not protected are not rights. Okay? And the 5th Amendment says nothing about any requirement of arrest or detainment.
Sure they are. They're unprotected rights. Otherwise, by protecting a right you're establishing that right. And our government doesn't establish rights.
Miranda rights were created by the government.
The rights always existed, but most people were unaware of them. As a result of the court case by the same name, law enforcement is now required to tell you about these rights after your arrest and before they question you. You can then claim those rights or waive them.
The Miranda Rule had no existence until the Supreme Court created it in Miranda v. Arizona. It is one example of the vast body of court made law. It operates as a sanction against government authorities rendering any information gained during an interrogation absent a warning in compliance with specific guidelines stated for the first time in the Miranda opinion, inadmissable against the accused. It created a rule of criminal procedure regarding admissibility which did not previously exist. Prior to the announcement of the rule in Miranda, no such rule existed. Under your interpretation, the right to Miranda warnings always existed, and could have been used to overturn every conviction wrongfully obtained through the use of statements obtained without a Miranda warning which nobody had ever heard of. https://supreme.justia.com/cases/federal/us/384/436/ U.S. Supreme Court Miranda v. Arizona, 384 U.S. 436 (1966) At 445: At 478-79: At 481:
That was the penalty for not advising the suspect of his rights. As I said before, those rights already existed. Miranda simply required law enforcement to remind the suspect of those rights. Miranda did not create any rights.
As I said before, those rights already existed. The right to remain silent existed. The mandatory warning or advisory of rights (Miranda rights) did not exist, and the automatic exclusion of evidence absent such Miranda warning did not exist. Prior to Miranda, the right to a warning did not exist. Failure to provide a warning invoked no penalty. The FBI policy was voluntary, did not include all the advisories required by Miranda, and was a voluntary FBI policy not applicable outside the FBI. Quite obviously, I never said that Miranda created the right to remain silent.
As did the right to consult an attorney. As did the right to have an attorney present during questioning. As did the right to have an attorney appointed to you if you cannot afford one. As did the right to stop answering questions at any time until you talk to an attorney.
#57. To: misterwhite (#55)
Bullshit. Look at the FBI advisory. It says nothing of appointing an attorney if you cannot afford one. http://law.justia.com/cases/federal/appellate-courts/F2/337/136/227932/ Danaher, Circuit Judge [...] We conclude that no rule of law required the exclusion of this appellant's confession, voluntarily made, after he had been warned by the F.B.I., the police and the United States Commissioner acting pursuant to Rule 40(b). He had not requested that counsel be appointed; he had retained no lawyer; that one was not then appointed for him denied him no right; and as the law now stands, there is no automatic rule of exclusion which will bar use of such a confession by an accused who has no lawyer, under circumstances such as appear on the record before us. [...] Appellant argues that the police officers may not testify to a voluntary confession given by one in lawful custody without an attorney, although the accused had been advised of his rights. The agents of the F.B.I., the United States Commissioner, and finally, the Metropolitan Police, had advised the appellant of his rights in language substantially as set forth in Rule 5 as incorporated into Rule 40(b) (2) of the Federal Rules of Criminal Procedure. This court has expressly held that the Sixth Amendment does not require that counsel be appointed at the preliminary hearing.2 2 Council v. Clemmer, 85 U.S.App.D.C. 74, 177 F.2d 22, cert. denied, 338 U.S. 880, 70 S. Ct. 150, 94 L. Ed. 540 (1949); and such is the general rule, Price v. Johnston, 144 F.2d 260 (9 Cir.), cert. denied, 323 U.S. 789, 65 S. Ct. 312, 89 L. Ed. 629 (1944), rehearing denied, 323 U.S. 819, 65 S. Ct. 558, 89 L. Ed. 650 (1945) http://digitalcommons.law.yale.edu/fss_papers/4352 The New Federal Rules of Criminal Procedure: I George H. Dession Yale Law School At 702: __________ 25. McNabb v. U. S., 318 U. S. 332 (1943). The Federal Rules of Criminal Procedure Lester B. Orfield California Law Review At 546-47: The time within which a prisoner must be brought before a committing magistrate is defined differently in different statutes. The rule supersedes all statutory provisions and fixes a single standard, namely, "without unnecessary delay." What constitutes "unnecessary delay" will have to be determined in the light of all the facts and circumstances of the case. The commissioner is to inform the defendant of the complaint against him, of his right to retain counsel, of his right to a preliminary examination, and that he is not required to make a statement and that any statement made by him may be used against him.16 He shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in those rules. __________ 15. Rule 5(a). The First Preliminary Draft had provided an effective sanction in its Rule 5(b): "No statement made by a defendant in response to interrogation by an officer or agent of the government shall be admissible in evidence against him if the interrogation occurs while the defendant is held in custody in violation of this rule". Much criticism from the bench and the bar resulted in the deletion of this rule in all subsequent drafts. But see A STATEMENT BY THE COMMITTEE ON THE BILL OF RIGHTS OF THE AMERICAN BAR ASSOCIATION ON H.R. 3690 (1944). 16 Rule 5 (b). http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2761&context=lalrev Arraignment In Federal Criminal Procedure Lester B. Orfield Louisiana Law Review At 20-22 In 1938 the Supreme Court took the position that failure to comply with the provision in the Sixth Amendment guaranteeing the right to counsel meant that the district court lost jurisdiction over the case.74 Following this decision, a court of appeals with one judge disagreeing was willing to concede arguendo that an arraignment was void when a defendant pleading not guilty was unable to obtain counsel and had not intelligently waived his right to counsel.75 But the court could proceed after the defendant obtained counsel, withdrew his plea of not guilty, and entered a plea of guilty. Habeas corpus would not lie. But Circuit Judge Sibley was not willing to concede even for the sake of argument "that a court cannot arraign one not represented by counsel without an express waiver of counsel." Defendant had a right to counsel at arraignment only if he provided himself counsel,76 and at common law he did not even have the right to retain counsel. Another court of appeals held a short time later that when a defendant is arraigned and forced to plead to an indictment __________ 72. Garland v. State of Washington, 232 U.S. 642 (1914). Rearraignment was required in a homicide case after reversal on appeal and a second prosecution in Corbett v. State, 91 So.2d 509 (Ala. 1959), noted 31 TUL. L. Rev. 682 (1957). 73. Muncy v. United States, 289 Fed. 780, 781 (4th Cir. 1923). 74. Johnson v. Zerbst, 304 U.S. 458 (1938). 75. Saylor v. Sanford, 99 F.2d 605, 606 (5th Cir. 1938), cert. denied, 306 U.S. 630 (1939). 76. Until 1938 the right to counsel was generally understood as meaning merely the right of the defendant to be represented by counsel retained by him. Holtzoff, The Right of Counsel Under the Sizth Amendment, 20 N.Y.U.L.Q. Rev. 1, 7 (1944). - - - - - - - - - without counsel, there is no denial of due process and no right to habeas corpus where the defendant pleaded not guilty and was thereafter represented by an attorney on the trial."77 The defendant is not prejudiced when he pleads not guilty. Even where without counsel the defendant pleads guilty and the court appoints counsel immediately after arraignment, and the defendant elected with advice of counsel to stand on his plea of guilty, which was subject to change, the constitutional rights of the defendant were not violated and he was not prejudiced.78 Habeas corpus would not lie. The Supreme Court laid down a similar rule in a state court case.79 As Professor Fellman points out: "It has been held that an accused is entitled to the assistance of a lawyer upon arraignment whether he pleads guilty or not, but the weight of opinion seems to be otherwise."80 But one case has said that the right to counsel accrues as soon as the grand jury returns an indictment into court.81 And a leading case has said that there is a right even at the preliminary examination.82 At his arraignment the district court should advise the defendant of his right to counsel and of his right, if indigent, to have counsel appointed for him.83 This is true even though the defendant pleads guilty.84 "The constitutional guarantee makes no distinction between the arraignment and other stages of crim- __________ 77. DeMaurez v. Swope, 104 F.2d 758, 759 (9th Cir. 1939). See in accord Thompson v. King, 107 F.2d 307, 308 (8th Cir. 1939) ; Dorsey v. Gill, 148 F.2d 857, 875 (D.C. Cir. 1945), cert. denied, 325 U.S. 890 (1945) ; Wilfong v. Johnston, 156 F.2d 507, 508 (9th Cir. 1946). 78. MeJordan v. Huff, 133 F.2d 408, 409 (D.C. Cir. 1943), Justice Edgerton dissenting; Alexander v. United States, 136 F.2d 783, 784 (D.C. Cir. 1943).79. Can'izio v. New York, 327 U.S. 82, 85 (1946). Justices Murphy and Rutledge dissented. This case was followed as to a federal criminal defendant in Hiatt v. Gann, 170 F.2d 473 (5th Cir. 1948). 80. Fellman, The Constitutional Right to Counsel in Federal Courts, 30 NEB. L. Rev. 599, 588 (1951). 81. Gilmore v. United States, 129 F.2d 199, 203 (10th Cir. 1942), cert. denied, 317 U.S. 631 (1942). 82. Wood v. United States, 128 F.2d 265, 271, 141 A.L.R. 1318 (D.C. Cir. 1942). But the great weight of authority is contrary. Orfield, Proceedings Before the Commissioner in Federal Criminal Procedure, 19 U. PITT. L. REV. 489, 527-528 (1958). "A federal right to assigned counsel does not exist prior to arraignment in the trial court." MORELAND, MODERN CRIMINAL PROCEDURE 177 (1959). 83. Evans v. Rives, 126 F.2d 633, 641 (D.C. Cir. 1942) ; McJordan v. Huff, 133 F.2d 408, 409 (D.C. Cir. 1943); Michener v. Johnston, 141 F.2d 171, 174 (9th Cir. 1944); Holtzoff, The Right of Counsel Under the Sixth Amendment, 20 N.Y.U.L.Q. REv. 1, 10, 14 (1944). This practice was followed in United States v. Gibert, 25 Fed. Cas. 1287, 1303, Case No. 15,204 (C.C.D. Mass. 1834). 84. Evans v. Rives, 126 F.2d 633, 637 (D.C. Cir. 1942) ; Holtzoff, The Right of Counsel Under the Sixth Amendment, 20 N.Y.U.L.Q. REv. 1, 11-13 (1944). - - - - - - - - - - inal proceedings in respect of the application of the guarantee."85 The "right to the assistance of counsel exists at the time of arraignment as well as at the trial."86 On the whole the federal cases have been in conflict as to whether the defendant has been deprived of his constitutional rights if he was unadvised at the time of arraignment."87 One court has pointed out that the time from arraignment up to trial is "the most critical period of the proceedings" as "investigation and preparation" are vitally important and the defendant should have counsel during that period.88 Delay Between Arraignment and Trial What about delay between arraignment and trial? In a case coming up from the Philippine Islands, Justice Lamar in a dissenting opinion objected to a trial commencing eleven months after arraignment.89 https://en.wikipedia.org/wiki/Miranda_warning The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona (1966), the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth Amendment and the Sixth Amendment right to counsel, through the incorporation of these rights into state law.[Note 1] Thus, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may interrogate that person and act upon the knowledge gained, but may not use that person's statements as evidence against him or her in a criminal trial. It is not the interrogation that was held to be a violation of rights, but the admission into evidence of the information gained thereby to be used against the subject of the interrogation in a criminal proceeding. The information may be used against others.
Top • Page Up • Full Thread • Page Down • Bottom/Latest"including the right to remain silent ..."
#8. To: All (#1)
You can remain silent but the right to remain silent kicks in after you're arrested.
#14. To: misterwhite (#8)
Correction: You can remain silent but the right to remain silent is only protected after you're arrested.
#16. To: Pinguinite (#14)
"Any "rights" not protected are not rights. Okay? "
#19. To: misterwhite, Pinguinite (#16)
And our government doesn't establish rights.
#27. To: nolu chan (#19)
"Miranda rights were created by the government."
#34. To: misterwhite (#27)
The rights always existed, but most people were unaware of them.
The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features -- incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.
To summarize, we hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the "need" for confessions. In each case, authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant.
#53. To: nolu chan (#34)
"It created a rule of criminal procedure regarding admissibility which did not previously exist."
#54. To: misterwhite (#53)
That was the penalty for not advising the suspect of his rights.
#55. To: nolu chan (#54)
"The right to remain silent existed."
Replies to Comment # 55. As did the right to consult an attorney. As did the right to have an attorney present during questioning. As did the right to have an attorney appointed to you if you cannot afford one.
Jackson v. U.S., 337 F.2d 136 (1964)
On September 8, 1961, the United States Commissioner issued a warrant for the arrest of the appellant on a felony-murder charge. On September 15, 1961, at 3:20 A.M., an agent of the F.B.I. arrested the appellant at Staten Island, New York. The F.B.I. agent immediately advised the appellant "that he did not have to make any statement, that any statement he did make would be used against him in a court of law, and that he was entitled to an attorney."
Yale Law School
1-1-1946
Yale Law School Legal Scholarship Repository
Faculty Scholarship Series Yale Law School Faculty Scholarship Quite recently, for example, the Supreme Court has had before it such unresolved basic questions as that of the limits on the detention and interrogation of arrested persons prior to arraignment,25 of the meaning and scope of the right to counsel,26 and of the power of courts to correct various types of errors after the time within which a motion for new trial may be made has elapsed.27
26. Adams v. U. S. ex. rel. McCann, 317 U. S. 269 (1943).
27. Wells v. U. S., 318 U. S. 257 (1943).
Volume 33 | Issue 4 Article 4
December 1945 Proceedings before the Commissioner. Rule 5 deals with procedure immediately following apprehension of the defendant. A person arresting, whether with or without warrant, "shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States."15
Volume 20 | Number 1
December 1959 Right to Counsel
The Miranda warning, which can also be referred to as the Miranda rights, is a right to silence warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.
End Trace Mode for Comment # 55.
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