[conspire] More about police encounters: Oregon Supreme Court decision

[Rick Moen]

[Yes, this is a little off-topic for a LUG mailing list.  I've
occasionally posted here about searches and seisures, and about how to
protect your legal rights, because of new issues affecting where CABAL
meets, i.e., my house, in relation to the 100-mile and 25-mile 'border
zones', etc.  This will be in the same spirit, i.e., I'm hoping I'm
staying at least loosely topical.]

In the middle to late 2000s, when I was working in large EDA-industry firm
Cadence Design Systems's Linux Management department, we had some truly
excellent mandatory corporate training -- in particular, some well-made
video training about compliance with the Federal Sarbanes-Oxley ('SOX') 
statute.  SOX is a far-reaching Congressional measure imposing extra
transparency and legal-compliance requirements on large, publicly traded
corporations.  Cadence wanted to make very sure all employees were
prepared if they suddenly found themselves caught up in a
law-enforcement investigation of part or all of the company, to make
sure the employees were prepared in advance to do The Right Thing to
protect themselves and the company.

Flash forward (for a momment one decade to a different employer, where
my fellow Senior Sysadmin, my friend Colin, wrote at the top of my
Operations Department whiteboard this saying:  

   In time of crisis, people do not rise to the occasion.  They fall to
   the level of their training.

(I've subsequently tracked down where this wise observation came from.
If interested, there's more here:
http://linuxmafia.com/~rick/lexicon.html#grossman )

Relevance to Cadence:  When put on the spot by something that comes up
at an awkward (or just random) time, it's all too human to just
improvise and not stop to think -- even when it's a dangerous situation
that _requires_ acting carefully.  And the antidote is to prepare in
advance for such situations, just in _case_ something like them happens
in the future, so that you fall to the level of (good) training.
Example:  One of Cadence's SOX training videos wanted you to picture
this happening to you:

You're arriving home at the end of a tiring day.  As you're about to
open your front door, a stranger flashes a badge and ID at you,
identifying him/herself as an officer of the US Marshal Service, and 
asks you whether you had a conversation at Cadence (while at work) with
a specific named colleague yesterday about a specific named Cadence
business partner.

You're tired and frazzled, and you vaguely recall that you probably did
have such a conversation, but aren't totally sure, and you mostly just
want the annoying person gone from your porch so you can bring in the
groceries and lie down.  You might thus:

(a) Say 'No, I didn't have such a discussion.'   Just so he/she will go
away.  Because, dammit, you're on your own time and shouldn't be
bothered by such things at home.

This turns out to be a dreadfully wrong, worst-choice option, because of
18 U.S. Code § 1001, a Federal law making it a serious crime carrying up
to a 5-year prison sentence, to make materially false statements to
Federal officers in the conduct of their investigatory duties.  Section
1001 is one of the Feds' big hammers to coerce witnesses who've fallen
afoul of it, and to pry into target organisations.  You don't want to be
that guy.  Heck, you don't even know what this is all about.

(b) Say 'Yes, I think I might have.'  This at least isn't an outright
violation of Federal law, but now you are starting to lead a very
complicated life and will have a lot of follow-up questions, and you
don't have legal counsel to protect your interests.  Also, your boss and 
corporate legal counsel don't have a heads-up about this (possibly
brand-new) investigation, and cannot advise or help you because you
didn't let them know.  So, this is also a very bad move.

(c) Say you will not be answering questions at this time, but take the
officer's business card and say you or an attorney will call to make
appropriate arrangements.  Then, go inside and telephone your boss, and 
describe what happened.  Next morning, upon going to work, have a brief
meeting with corporate counsel, going over what happened on your porch,
and letting them advise you about next steps.

Option (c) would always, always, always be the right choice, and that's
the point:  Unless you've been trained and have pictured in advance your
being suddenly accosted by a Federal investigator on your porch while
carrying in groceries, you are rather likely to make a bad move, and not
'rise to the occasion', but rather blurt out stuff you later will come
to regret.  Training, advance preparation, can really matter.


Case in point:  Some time around 2002, I was driving up from VA Linux
Systems in Fremont to go to where my stepfather Bill Dalton was in the
hospital, coincidentally drove past a major police action in San
Lorenzo, and to my amazement found myself stopped by a large squad of
well-armed Alameda County Sheriff Dept. deputies, who held me for an
hour or so and seemed particularly interested in my ratty old 1995
Saturn SL sedan.  At one point, they asked if I minded if they searched
the interior of my car.  My car was messy inside, and I was feeling a
bit peevish about the unexplained police stop, so I thought 'Fine, let
them suffer by having to plow through my mess' and said 'OK, go ahead.'

As it happened, they found no contraband of any kind (as I lead a
boringly law-abiding life), just a lot of person mess, but afterwards I 
realised that by saying 'OK, go ahead' I'd taken an unnecessary legal
risk.  E.g., sometimes I'd driven friends or acquaintances in the
passenger or back seats of my car.  Suppose _they_ had some sort of
contraband, e.g., their bags of marijuana, and some of that had fallen
and gone under my seats.  I could have created legal trouble for myself
by consenting to a search that the police could not otherwise have found
a lawful basis for conducting without my voluntary permission.  So, the 
better answer would have been 'No, officer, I'll not be consenting to
any searches today' and when the officer invitably said 'Why not?',
reply 'I'll not be answering questions today.'


And this gets to one of the recurring themes:  Talking to the police,
particularly if there is any chance whatsoever of them being interested
in investigating you, without talking to a lawyer first, is a bad idea.
Don't do it.  If detained by the police, stick to the magic words:
'I'll not be answering questions today' and 'I'll not be consenting to
any searches today, and deciding you're fine with long silences without
feeling any obligation to fill them by speaking.

Also remember:  The police are allowed and even encouraged to lie to
you, if they are trying to get a damaging admission from your lips.  
This is part of their actual professional skill.  If being questioned, 
you should always remember that they are doing what they are skilled at
doing, which is badgering and getting damaging statements from suspects,
and you are an off-balance amateur.  So:  Shut up.  And, just as in the
Cadence training video, ask for the officer's card and say 'My lawyer
(or 'a lawyer') will call you, and we'll see what can be arranged.'


Which brings us to the Oregon Supreme COurt:
https://www.cnn.com/2019/12/14/us/traffic-stop-disparities-oregon-supreme-court-ruling/index.html

  In Arreola-Botell's case, the Oregon Court of Appeals said an officer
  was free to question a driver during an "unavoidable lull" in the
  traffic stop, "such as while awaiting the results of a records check."

  The state's Supreme Court disagreed.

  "That's what the importance of this decision is," Crowther says. That
  "unavoidable lull" is no longer justification for random questions in
  Oregon, he says.

Beaverton, OR PD officer Erik Faulkner had pulled over Mario
Arreola-Botello for failing to signal a turn and a lane change,
While Officer Faulkner had Arreola-Botello stopped at the curb, he asked
his usual battery of unrelated questions unrelated to the reason for the
traffic stop:  'Do you have anything illegal in the car?  Would you
consent to a search for guns, drugs, knives, bombs, illegal documents, or
anything else that you're not allowed to possess?'  

Arreola-Botello, who was not very English-fluent, wsa a bit confused and
(like me) gave consent for a search of his car.  This turned the
situation into one where Officer Faulkner had the right to search
(because of _consent_), and found a controlled substance, leading to
arrest and conviction.

On apeal, the OR Supreme Court found that the officer had unlawfully
expanded the permissible scope of the traffic stop when he asked about
the contents of the vehicle and requested permission to search it
because those inquiries were not related to the purpose of the stop.
(Under the new policy, Oregon police can still investigate possible crimes 
unrelated to the purpose of a traffic stop if there is probable cause, 
e.g., the driver has bloodshot watery eyes, flushed looks, and other
signs of driving under the influence of alcohol or other drugs.)

But that's only in Oregon -- and is a result Arreola-Botello arrived at
after years of long and expensive legal proceedings.

Note in particular what the OR Supreme Court said about the lure of the
'unavoidable lull':  It's a common interrogation technique to leave an
awkward silence and hope that the suspect starts chatting to fill the
void.  They do this because it works quite often.  

Silence is OK.  Ask the officer 'Am I free to go?'  If you hear 'yes',
leave and say nothing more to the police.  If you hear anything but
'yes', haul out your book and wait, resisting the urge to hold any type
of conversation.

Anyway, if you haven't yet, watch this classic, all 46 minutes of it:
https://www.youtube.com/watch?v=d-7o9xYp7eE