From [HERE] This week while working, I was driving my regular routing schedule around the Las Vegas area in Nevada. I moved to Las Vegas three months ago to pursue a job in the healthcare industry. Nothing out of the ordinary seemed to be going on this day, other than the hundred and ten degree summer heat throughout the Las Vegas area.
I came to a stop light and knew that I had to take my regular U-Turn at the stop light to turn around and go back to a Dr.’s office on the other side of the street. When the light turned green, I pulled a U-Turn and began driving about three tenths of a mile to where I needed to turn into the Dr.’s office. And that’s when suddenly I looked in my rear view mirror and saw a police officer on a motorcycle with his lights on. I abruptly pulled over thinking that maybe U Turns weren’t allowed at that stop light, or that I unexpectedly somehow got a little pedal heavy and was speeding down the road.
While on the side of the street, I got out my wallet to find my drivers license. I am driving a black Dodge Avenger rental car still as my company still hasn’t fully moved me to Las Vegas. I roll down my window and a wait for the officer to approach. Inside of my car, I have my iPhone in a cup holder to my right, my briefcase on the passenger seat with a laptop on top of the briefcase. There are also papers scattered throughout my car with free samples of pens and magnets in the back seat.
The officer was probably in his mid-thirties, white male, with a buzz haircut. It looked as though he was previously riding a horse before he got on his motorcycle as he was wearing a hat and knee high boots like all officers that you see on horses. When he made it to my window he said that he needed my license and registration. I handed the officer my license and the registration that was located inside of the glove compartment inside of the rental car. He walked away and went back to his motorcycle for a minute.
When he came back, he said that he was citing me for a violation of looking at my cell phone. I paused for a second and said, "What, looking at my cell phone?" I knew that it was illegal to talk and text on your phone in the state of Nevada as my work place predecessor warned me that he had received a ticket for texting and driving. Also, I am from Indiana and my state just passed a law banning texting and driving.
I. WHAT RIGHTS DOES THE FIFTH AMENDMENT GIVE YOU? A. WHAT IT SAYS
The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself.”
B. WHEN MAY YOU REFUSE TO TALK?
Kastigar v. United States, 406 U.S. 441, 445 (1972): The Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”
Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177 (2004): There is no Fifth Amendment right to refuse to tell the police your name. “Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.”
C. IS IT ONLY FOR THE GUILTY?
Ullmann v. United States, 350 U.S. 422, 426 (1956): “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.”
Ohio v. Reiner, 532 U.S. 17, 20 (2001): “One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth.”
What to say:
On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which--according to the United States Supreme Court--protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.
The Supreme Court has never held, and has in fact rejected the suggestion, "that the privilege is unavailable to those who claim innocence." (Ohio v. Reiner, 532 U.S. 17, 21 (2001).) The Court has emphasized that one of the Fifth Amendment's "basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances," and has repeatedly affirmed that "truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth." (Id.) (citations omitted). When [*59] the Court claims that the Fifth Amendment only applies to testimony that is "incriminating," therefore, it is not using that word in the same sense in which it is likely to sound to any ordinary juror. On the contrary, the Court is describing any evidence that could be used to help obtain the conviction of any individual, including the false conviction of an innocent person. (That is, of course, correct. The Fifth Amendment would be essentially worthless if it gave you the right to refuse to answer questions only when you are willing to concede on the record that the truth would prove your guilt.)