I got 99 problems but the Fourth Ammendment ain't one
July 11, 2012 4:48 PM Subscribe
A line-by-line legal analysis of verse 2 of Jay-Z's 99 Problems [PDF], published in the law review of St. Louis University, is a surprisingly enlightening take on Fourth Amendment rights during a traffic stop. Jay-Z is right in submitting to a show of authority and refusing to consent to a search, but he is wrong in assuming that a warrant is needed to search a locked trunk or glovebox. However, Jay-Z would probably be able to suppress evidence of the drugs in his car, even if they are found, because he had to wait while the K-9 comes. He's got 99 problems but a female sniffer dog isn't one. Hit me.
I never really cared for Jay-Z's version because Ice-T made this song in 1993. But I did learn something from this:
posted by cashman at 5:18 PM on July 11, 2012 [1 favorite]
I got 99 problems but a bitch ain’t one . . . Jay-Z says that the “bitch” in this line, which recurs in the chorus, refers to the late-arriving drug dog, not to a woman.Since Ice's version is completely the opposite, I never knew this. Hov & Bey also remade Tupac's girlfriend. And neither one should have happened, but anyway.
posted by cashman at 5:18 PM on July 11, 2012 [1 favorite]
That was a great read.
Related (and possibly previously on the blue) for anyone with 40 minutes to kill:
Why you should never talk to police.
posted by braksandwich at 5:18 PM on July 11, 2012 [12 favorites]
Related (and possibly previously on the blue) for anyone with 40 minutes to kill:
Why you should never talk to police.
posted by braksandwich at 5:18 PM on July 11, 2012 [12 favorites]
cashman, I'ma let you finish, but LL made this song in 1990.
posted by nicwolff at 5:27 PM on July 11, 2012 [6 favorites]
posted by nicwolff at 5:27 PM on July 11, 2012 [6 favorites]
Yeah, but Ice's version includes the line 'A bitch that's a man because they're bitches too.'
posted by box at 5:33 PM on July 11, 2012
posted by box at 5:33 PM on July 11, 2012
The only thing I will ever say to police again is "Here's my lawyer's card."
posted by cjorgensen at 5:35 PM on July 11, 2012
posted by cjorgensen at 5:35 PM on July 11, 2012
Here's another good video on how to handle a traffic stop.
"I do not consent to a search" and "Are you detaining me or am I free to go?" - The importance and use of these phrases cannot be overestimated.
posted by Dr. Zira at 5:40 PM on July 11, 2012 [3 favorites]
"I do not consent to a search" and "Are you detaining me or am I free to go?" - The importance and use of these phrases cannot be overestimated.
posted by Dr. Zira at 5:40 PM on July 11, 2012 [3 favorites]
Am I free to go?
posted by cthuljew at 5:46 PM on July 11, 2012 [1 favorite]
posted by cthuljew at 5:46 PM on July 11, 2012 [1 favorite]
"I do not consent to a search" and "Are you detaining me or am I free to go?" - The importance and use of these phrases cannot be overestimated.
It's incredibly sad that people have to know the magic incantations to avoid their rights being violated. I complained about the traffic stop stuff once elsewhere and a cop who commented said "But refusal to get out of the car is a no go. That's a lawful order as laid down by the Supreme Court over 30 years ago in Pennsylvania vs. Mimms. The refusal in and of itself could be grounds for an arrest."
But who the fuck knows what of what a police officer tells/requests you to do (if the cop said "would you mind stepping out of the car?" you might reasonably think he wasn't really asking, but telling with the form of a question) is something you actually have to do, or something you can refuse to do? I have no idea if an officer is required to reply truthfully if I ask "do I really have to do that?", so if he says "yes", maybe I really don't. I know officers can lie in other situations no problem.
posted by kenko at 5:49 PM on July 11, 2012 [5 favorites]
It's incredibly sad that people have to know the magic incantations to avoid their rights being violated. I complained about the traffic stop stuff once elsewhere and a cop who commented said "But refusal to get out of the car is a no go. That's a lawful order as laid down by the Supreme Court over 30 years ago in Pennsylvania vs. Mimms. The refusal in and of itself could be grounds for an arrest."
But who the fuck knows what of what a police officer tells/requests you to do (if the cop said "would you mind stepping out of the car?" you might reasonably think he wasn't really asking, but telling with the form of a question) is something you actually have to do, or something you can refuse to do? I have no idea if an officer is required to reply truthfully if I ask "do I really have to do that?", so if he says "yes", maybe I really don't. I know officers can lie in other situations no problem.
posted by kenko at 5:49 PM on July 11, 2012 [5 favorites]
I got 99 problems but a bitch ain’t one . . . Jay-Z says that the “bitch” in this line, which recurs in the chorus, refers to the late-arriving drug dog, not to a woman.
Actually, he's never referring to a woman with the word "bitch" in the song, which is kind of the "joke." In verse 1, it's a "bitch" as in complaints from critics and industry insiders, in verse 2 it's about the K-9, and in verse 3 he's saying that he won't back down from a fight.
Anyway, I actually used this song to illustrate 4th Amendment rights in my Criminal Justice Clinic a few years back. I brought the video to my supervisor, who watched it and decided it was "too rough" to show in class, but was glad to see Mark Romanek was doing well, as he was apparently a close childhood friend of her's who she'd lost contact with.
posted by Navelgazer at 5:51 PM on July 11, 2012 [5 favorites]
Actually, he's never referring to a woman with the word "bitch" in the song, which is kind of the "joke." In verse 1, it's a "bitch" as in complaints from critics and industry insiders, in verse 2 it's about the K-9, and in verse 3 he's saying that he won't back down from a fight.
Anyway, I actually used this song to illustrate 4th Amendment rights in my Criminal Justice Clinic a few years back. I brought the video to my supervisor, who watched it and decided it was "too rough" to show in class, but was glad to see Mark Romanek was doing well, as he was apparently a close childhood friend of her's who she'd lost contact with.
posted by Navelgazer at 5:51 PM on July 11, 2012 [5 favorites]
Third verse same as the first?
posted by cjorgensen at 5:52 PM on July 11, 2012
posted by cjorgensen at 5:52 PM on July 11, 2012
Where was this when I and my friends got stopped for automatic weapons while on a blind date?!
posted by jadepearl at 5:59 PM on July 11, 2012 [2 favorites]
posted by jadepearl at 5:59 PM on July 11, 2012 [2 favorites]
cashman, I'ma let you finish, but LL made this song in 1990.
Well I was talking about "99 Problems", not illegal search songs. I'm sure bdp or somebody else beat LL to illegal search. But I don't know of a 99 problems song before Ice-T's, though I assume he took the title from Dolemite or something anyway.
posted by cashman at 6:00 PM on July 11, 2012
Well I was talking about "99 Problems", not illegal search songs. I'm sure bdp or somebody else beat LL to illegal search. But I don't know of a 99 problems song before Ice-T's, though I assume he took the title from Dolemite or something anyway.
posted by cashman at 6:00 PM on July 11, 2012
I and my friends got stopped for automatic weapons while on a blind date?!
I... I think I love you.
posted by mrbill at 6:02 PM on July 11, 2012
I... I think I love you.
posted by mrbill at 6:02 PM on July 11, 2012
you mean to tell me that songs, specifically rap songs, take lines and ideas from previous works and re-purpose them in their own lyrics?? this is brand new information! what's next, people taking music from songs by other people and remixing them into new material?
posted by nadawi at 6:13 PM on July 11, 2012 [3 favorites]
posted by nadawi at 6:13 PM on July 11, 2012 [3 favorites]
Lightnin' Rod - Four Bitches Is What I Got (it's about cards)
posted by box at 6:26 PM on July 11, 2012
posted by box at 6:26 PM on July 11, 2012
I think the final footnote is the lawyer equivalent of dropping the mic.
posted by Holy Zarquon's Singing Fish at 6:32 PM on July 11, 2012 [1 favorite]
posted by Holy Zarquon's Singing Fish at 6:32 PM on July 11, 2012 [1 favorite]
I just need to link this because it's awesome
I also want to find the stretch of road with a 54 mph speed limit
posted by Lucinda at 6:39 PM on July 11, 2012 [5 favorites]
I also want to find the stretch of road with a 54 mph speed limit
posted by Lucinda at 6:39 PM on July 11, 2012 [5 favorites]
you mean to tell me that songs, specifically rap songs, take lines and ideas from previous works and re-purpose them in their own lyrics?? this is brand new information! what's next, people taking music from songs by other people and remixing them into new material?
Yeah but it's not supposed to suck when you do it. You're supposed to make whatever the new product is, better, or at least worthy. But I guess I'm just not a big Jay-Z fan for the most part. "Girlfriend" just upset me, because what him and Bey did to it was just weak, compared to how Pac spit it.
posted by cashman at 6:42 PM on July 11, 2012
Yeah but it's not supposed to suck when you do it. You're supposed to make whatever the new product is, better, or at least worthy. But I guess I'm just not a big Jay-Z fan for the most part. "Girlfriend" just upset me, because what him and Bey did to it was just weak, compared to how Pac spit it.
posted by cashman at 6:42 PM on July 11, 2012
This is nothing, have you heard the Killer Mike track where he breaks down the Rule of Perpetuities?
posted by naju at 6:52 PM on July 11, 2012 [3 favorites]
posted by naju at 6:52 PM on July 11, 2012 [3 favorites]
Yeah, what the hell? And Miller seems totally cool about it. Finesse - oh it's like that now?
posted by cashman at 6:52 PM on July 11, 2012
posted by cashman at 6:52 PM on July 11, 2012
Staying cool is easier to do, of course, if you have a few dollars to hire a good attorney. If you’re going to get an overworked public defender or a bottom-feeding court lurker who’ll just try to get you to take a quick plea, then bouncing on the double starts to look more attractive, even given the considerations discussed above. Jay-Z had money, he could get a good lawyer, he made the right choice.I'm both giggling over the word choice here and weeping in sorrow for the state of American "justice." Good job, Dr. Mason.
posted by SMPA at 7:00 PM on July 11, 2012
This paper is why I love pop culture analysis. I also love that last footnote.
Now since this is gonna drive me nuts but isn't worth hitting AskMefi: can someone please hit me up with the song (linked on the blue? maybe in an Occupy thread?) about "this is what you do when arrested (at a protest or whatever"? Or any other useful legal info in song form. It's always easier to remember stuff set to music, and this paper persuades me that constitutional rights are worthy additions to my personal catalog of Song Lyrics To Get Earwormed In My Head Forever.
posted by nicebookrack at 7:05 PM on July 11, 2012
Now since this is gonna drive me nuts but isn't worth hitting AskMefi: can someone please hit me up with the song (linked on the blue? maybe in an Occupy thread?) about "this is what you do when arrested (at a protest or whatever"? Or any other useful legal info in song form. It's always easier to remember stuff set to music, and this paper persuades me that constitutional rights are worthy additions to my personal catalog of Song Lyrics To Get Earwormed In My Head Forever.
posted by nicebookrack at 7:05 PM on July 11, 2012
I just love footnotes.
(Although my favorite was the "Whren vs US - again!" note.)
posted by maryr at 7:13 PM on July 11, 2012
(Although my favorite was the "Whren vs US - again!" note.)
posted by maryr at 7:13 PM on July 11, 2012
But who the fuck knows what of what a police officer tells/requests you to do is something you actually have to do, or something you can refuse to do?
Could you just ask, "Do I have the right to refuse?" I'd that would clear up the issue or, if they lie or are wrong, provide the basis for suppression.
posted by VTX at 7:32 PM on July 11, 2012
Could you just ask, "Do I have the right to refuse?" I'd that would clear up the issue or, if they lie or are wrong, provide the basis for suppression.
posted by VTX at 7:32 PM on July 11, 2012
So you guys are saying that when Jay-Z goes "If you're having girl problems I feel bad for you son, I got 99 problems but a bitch ain't one", we are incorrect in concluding that he's referring to women as bitches?
posted by Flashman at 7:44 PM on July 11, 2012
posted by Flashman at 7:44 PM on July 11, 2012
Read the article - it's directly from hov. I never paid enough attention to know that, but that's what he says.
posted by cashman at 7:55 PM on July 11, 2012
posted by cashman at 7:55 PM on July 11, 2012
I got curious about the Oregon 2-party law and apparently loudly announcing you're recording the conversation is likely enough. Unless you're just a bystander. The point is, they have to know, not give consent. How strange...
posted by fiercekitten at 8:00 PM on July 11, 2012
posted by fiercekitten at 8:00 PM on July 11, 2012
I also want to find the stretch of road with a 54 mph speed limit
It's Poetic License Blvd. in Bed-Stuy.
posted by axiom at 8:12 PM on July 11, 2012 [4 favorites]
It's Poetic License Blvd. in Bed-Stuy.
posted by axiom at 8:12 PM on July 11, 2012 [4 favorites]
Could you just ask, "Do I have the right to refuse?" I'd that would clear up the issue or, if they lie or are wrong, provide the basis for suppression.
Raymond Smullyan took care of this one ages ago. What you say is, "Are you the sort of person who, if asked whether I had the right to refuse, would say 'yes'?"
posted by nebulawindphone at 8:16 PM on July 11, 2012 [3 favorites]
Raymond Smullyan took care of this one ages ago. What you say is, "Are you the sort of person who, if asked whether I had the right to refuse, would say 'yes'?"
posted by nebulawindphone at 8:16 PM on July 11, 2012 [3 favorites]
Flashman: Jay-Z borrowed the line from Ice-T, who's definitely rapping about women. Jay cleverly twists the meaning so that he never quite refers to women, as explained upthread. So when Jay raps it, the girl problems line becomes a bit of a non-sequitur.
posted by fitnr at 8:37 PM on July 11, 2012 [3 favorites]
posted by fitnr at 8:37 PM on July 11, 2012 [3 favorites]
Lucinda: "I just need to link this because it's awesome
I also want to find the stretch of road with a 54 mph speed limit"
Eh, this one is better.
posted by wierdo at 8:44 PM on July 11, 2012 [1 favorite]
I also want to find the stretch of road with a 54 mph speed limit"
Eh, this one is better.
posted by wierdo at 8:44 PM on July 11, 2012 [1 favorite]
It seems to me that the point of the 54 limit is that it isn't real. The drug courier is abiding the limit - doing 55 - but because he is doing it while black, the cop pulls him over on a bullshit traffic stop.
posted by jacquilynne at 8:46 PM on July 11, 2012 [5 favorites]
posted by jacquilynne at 8:46 PM on July 11, 2012 [5 favorites]
Could you just ask, "Do I have the right to refuse?" I'd that would clear up the issue or, if they lie or are wrong, provide the basis for suppression.
Unless, of course, they're allowed to lie. As I mentioned in the comment you reply to, I know that the police can lie sometimes, so maybe they can lie here, too. And you can't just ask them—these aren't Smullyan's Knights and Knaves.
And suppose you can have the evidence (or whatever) suppressed later—you might still have trouble getting your property back if it's taken from you. And you've also been deprived of liberty while sitting in a holding cell or whatever. Yay!
posted by kenko at 8:50 PM on July 11, 2012
Unless, of course, they're allowed to lie. As I mentioned in the comment you reply to, I know that the police can lie sometimes, so maybe they can lie here, too. And you can't just ask them—these aren't Smullyan's Knights and Knaves.
And suppose you can have the evidence (or whatever) suppressed later—you might still have trouble getting your property back if it's taken from you. And you've also been deprived of liberty while sitting in a holding cell or whatever. Yay!
posted by kenko at 8:50 PM on July 11, 2012
And of course you might also be found to actually have consented to a search, without your even knowing you were doing so!
posted by kenko at 8:50 PM on July 11, 2012
posted by kenko at 8:50 PM on July 11, 2012
Straight from the source:
91. JAY-Z, supra note 3, at 61 (“In this verse, the bitch is a female dog, the K-9 cop coming to sniff the ride.”); Id. at 56 (“At no point in the song am I talking about a girl.”).
See the footnotes.
posted by DarlingBri at 9:01 PM on July 11, 2012
91. JAY-Z, supra note 3, at 61 (“In this verse, the bitch is a female dog, the K-9 cop coming to sniff the ride.”); Id. at 56 (“At no point in the song am I talking about a girl.”).
See the footnotes.
posted by DarlingBri at 9:01 PM on July 11, 2012
I also want to find the stretch of road with a 54 mph speed limit
It's Poetic License Blvd. in Bed-Stuy.
Fool. HOV is from Marcy.
I actually don't know much about hip-hop or Jay-Z, really. But I love this song for some reason (okay, the reason is the great Danger Mouse mash-up with "Helter Skelter") But for anyone who doesn't know, verse 2 is in fact based on a real incident that happened to him, where he eventually got out of it because it was taking too long for the K-9 unit to arrive and the cops couldn't justify holding him any longer on the street.
posted by Navelgazer at 9:54 PM on July 11, 2012
It's Poetic License Blvd. in Bed-Stuy.
Fool. HOV is from Marcy.
I actually don't know much about hip-hop or Jay-Z, really. But I love this song for some reason (okay, the reason is the great Danger Mouse mash-up with "Helter Skelter") But for anyone who doesn't know, verse 2 is in fact based on a real incident that happened to him, where he eventually got out of it because it was taking too long for the K-9 unit to arrive and the cops couldn't justify holding him any longer on the street.
posted by Navelgazer at 9:54 PM on July 11, 2012
And here's my mea culpa. I just looked it up a minute too late and discovered that apparently the Marcy Projects are in Bed-Stuy. Despite living in walking distance from them for literally years, I'd never considered Marcy to be in Bed-Stuy.
I am shamed. SHAMED!
axiom, consider this a "fool" revocation with deep penance and regret. You are, in fact, no fool.
posted by Navelgazer at 9:59 PM on July 11, 2012
I am shamed. SHAMED!
axiom, consider this a "fool" revocation with deep penance and regret. You are, in fact, no fool.
posted by Navelgazer at 9:59 PM on July 11, 2012
62. Query whether the presence of Rick Rubin in the passenger seat—in the video—is a plus or a minus on the reasonable suspicion scorecard.Brilliant.
posted by brokkr at 2:44 AM on July 12, 2012 [1 favorite]
This is perfect. I love it.
posted by rachaelfaith at 7:03 AM on July 12, 2012
posted by rachaelfaith at 7:03 AM on July 12, 2012
I did not realize until looking Rick Rubin up after reading the essay that he is a) white and b) terrifying. That picture in Wikipedia looks like it belongs on the Programming Language Inventor or Serial Killer quiz.
posted by maryr at 8:22 AM on July 12, 2012 [2 favorites]
posted by maryr at 8:22 AM on July 12, 2012 [2 favorites]
I did not realize until looking Rick Rubin up after reading the essay that he is a) white and b) terrifying.
There's a great part in Fade to Black where they're recording 99 problems at Rubin's home studio and one of Jay-Z's entourage comes down from the upstairs after going to the bathroom or something and, shocked, is like "do you know Rick has a Best Country Album Grammy up there"? (I guess for the Johnny Cash stuff he produced).
The clip is worth a watch if you have 10 minutes. It's also really interesting to watch him write and record what became such a gigantic song.
posted by nathancaswell at 9:45 AM on July 12, 2012
There's a great part in Fade to Black where they're recording 99 problems at Rubin's home studio and one of Jay-Z's entourage comes down from the upstairs after going to the bathroom or something and, shocked, is like "do you know Rick has a Best Country Album Grammy up there"? (I guess for the Johnny Cash stuff he produced).
The clip is worth a watch if you have 10 minutes. It's also really interesting to watch him write and record what became such a gigantic song.
posted by nathancaswell at 9:45 AM on July 12, 2012
Actually just watched it again it's Jayz who discovers it
posted by nathancaswell at 9:48 AM on July 12, 2012
posted by nathancaswell at 9:48 AM on July 12, 2012
Unchained did win a Best Country Album Grammy, as did another country album Rubin produced -- The Dixie Chicks' "Taking the Long Way".
posted by jacquilynne at 10:15 AM on July 12, 2012
posted by jacquilynne at 10:15 AM on July 12, 2012
But for anyone who doesn't know, verse 2 is in fact based on a real incident that happened to him, where he eventually got out of it because it was taking too long for the K-9 unit to arrive and the cops couldn't justify holding him any longer on the street.
Navelgazer
Thanks for this. I was having trouble understanding what Jay-Z meant when he said he was never referring to a girl, because at the end of verse 2 with the drug dog coming to inspect his drug-filled car it sure seemed like the dog ("bitch") was a problem. That it was based on an incident where the dog wasn't a problem because it took too long explains it.
posted by Sangermaine at 12:09 PM on July 12, 2012
Navelgazer
Thanks for this. I was having trouble understanding what Jay-Z meant when he said he was never referring to a girl, because at the end of verse 2 with the drug dog coming to inspect his drug-filled car it sure seemed like the dog ("bitch") was a problem. That it was based on an incident where the dog wasn't a problem because it took too long explains it.
posted by Sangermaine at 12:09 PM on July 12, 2012
nicebookrack: The only thing that comes to mind is this song (Film The Police). I think it might have appeared in an occupy thread at one point or another.
posted by broadway bill at 3:36 PM on July 12, 2012
posted by broadway bill at 3:36 PM on July 12, 2012
This is excellent, and actually a fairly clear articulation of complicated legal doctrine. And an interesting approach to legal scholarship that could probably use a healthy dose of relevancy more often.
It's definitely pedantic to point out that the defendant in Scott v. Harris didn't in fact die (just paralyzed), as referenced on page 573, right? I'm sorry; I can't help it .
posted by likeatoaster at 7:45 PM on July 12, 2012
It's definitely pedantic to point out that the defendant in Scott v. Harris didn't in fact die (just paralyzed), as referenced on page 573, right? I'm sorry; I can't help it .
posted by likeatoaster at 7:45 PM on July 12, 2012
Man, this article is really poorly edited, though. Another example, from footnote 48: "Also, if you’re arrested, your Miranda rights kick in—but there are no Miranda rights during a traffic stop. Berkemer v. McCarty, 468 U.S. 420, 440 (1984)." Not only is this a tremendously un-nuanced and misleading summary of the major holding in the case, it is patently incorrect. (Miranda protections extend during traffic stops if the individual has been formally arrested or "deprivation of freedom to an extent associated with formal arrest".) If the author's goal is to elucidate search/confession doctrine to laypeople, then he (and more importantly, his editors) should at least get it right! (Wikipedia managed to!).
posted by likeatoaster at 8:13 PM on July 12, 2012
posted by likeatoaster at 8:13 PM on July 12, 2012
The way I read it, the distinction was between "just stopped in traffic (and not actually arrested)" and "under arrest." But there probably woulda been a clearer way to put that, yeah.
posted by nebulawindphone at 8:36 PM on July 12, 2012
posted by nebulawindphone at 8:36 PM on July 12, 2012
In re:
Also, can you please explain the concept of informal arrests?
posted by brokkr at 12:42 AM on July 13, 2012
likeatoaster: "Another example, from footnote 48: "Also, if you’re arrested, your Miranda rights kick in—but there are no Miranda rights during a traffic stop.and
Miranda protections extend during traffic stops if the individual has been formally arrested [...]"I don't see any contradiction between the article and your statement. The author says Miranda rights apply when you're arrested, but not at a traffic stop per se. You're saying Miranda rights apply during traffic stops, nightclub visits, sailing your yacht, karate training - as long as you're arrested doing it.
Also, can you please explain the concept of informal arrests?
posted by brokkr at 12:42 AM on July 13, 2012
The author of this article was a counselor at my summer camp when I was a kid. Glad to see what a success he's become.
posted by Cash4Lead at 8:44 AM on July 13, 2012
posted by Cash4Lead at 8:44 AM on July 13, 2012
brokkr: "Also, can you please explain the concept of informal arrests?"
Miranda rights kick in upon custodial interrogation. A defendant must be in "custody" or otherwise deprived of freedom in a significant way, i.e., a restraint upon freedom to a degree usually associated with arrest. People - especially those law abiding citizens who don't have much experience with being stopped and whose only knowledge of police procedure may be TV cop shows - may wrongfully assume that an arrest doesn't occur until the cop says "You're under arrest," slaps the cuffs on and rattles off the Miranda warnings and hauls the suspect down to the station. Remember, the game here for cops is to get a suspect to volunteer incriminating evidence, either by answering a question or consenting to search. It's to their advantage to make the suspect to believe they're not free to go if they actually are free to go, so they can keep the authoritarian pressure on to elicit the "voluntary" confession or consent. Cops can and will lie to a suspect to make this happen ("You're in a lot of trouble here, why don't you just tell me your side of the story so you get off lightly"). The cop's goal is to place the maximum amount of pressure on the subject without triggering a custodial interrogation (or, to detain the stop long enough to get the dogs or find some other "probable cause" to trigger a search). At some point, there's only so much they can do without crossing the line into deprivation of freedom/custody. That ties back into the part of the article discussing the problems for cops if they don't have the K-9 unit at the ready. What constitutes an "informal arrest" is more of a fact based query than a bright line rule, so you have to think about circumstances e.g., cop's pointing a gun at you and yelling "Hands up! Don't move!" or cop disappears with your license and registration/insurance verification and won't give it back to you, or there's an officer in your house without a warrant* who refuses to leave upon demand.
That's one of the reasons it's important to ask "are you detaining me or am I free to go?" when stopped by an officer; you're not only asserting your rights, you're also establishing an evidentiary record of whether or not the arrest has happened yet (especially important if there are others with you who can testify as witnesses).
posted by Dr. Zira at 4:20 AM on July 14, 2012 [2 favorites]
Miranda rights kick in upon custodial interrogation. A defendant must be in "custody" or otherwise deprived of freedom in a significant way, i.e., a restraint upon freedom to a degree usually associated with arrest. People - especially those law abiding citizens who don't have much experience with being stopped and whose only knowledge of police procedure may be TV cop shows - may wrongfully assume that an arrest doesn't occur until the cop says "You're under arrest," slaps the cuffs on and rattles off the Miranda warnings and hauls the suspect down to the station. Remember, the game here for cops is to get a suspect to volunteer incriminating evidence, either by answering a question or consenting to search. It's to their advantage to make the suspect to believe they're not free to go if they actually are free to go, so they can keep the authoritarian pressure on to elicit the "voluntary" confession or consent. Cops can and will lie to a suspect to make this happen ("You're in a lot of trouble here, why don't you just tell me your side of the story so you get off lightly"). The cop's goal is to place the maximum amount of pressure on the subject without triggering a custodial interrogation (or, to detain the stop long enough to get the dogs or find some other "probable cause" to trigger a search). At some point, there's only so much they can do without crossing the line into deprivation of freedom/custody. That ties back into the part of the article discussing the problems for cops if they don't have the K-9 unit at the ready. What constitutes an "informal arrest" is more of a fact based query than a bright line rule, so you have to think about circumstances e.g., cop's pointing a gun at you and yelling "Hands up! Don't move!" or cop disappears with your license and registration/insurance verification and won't give it back to you, or there's an officer in your house without a warrant* who refuses to leave upon demand.
That's one of the reasons it's important to ask "are you detaining me or am I free to go?" when stopped by an officer; you're not only asserting your rights, you're also establishing an evidentiary record of whether or not the arrest has happened yet (especially important if there are others with you who can testify as witnesses).
posted by Dr. Zira at 4:20 AM on July 14, 2012 [2 favorites]
Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason is now available on SSRN. Written by Emir Crowne of the University of Windsor Faculty of Law, its abstract reads as follows:
This paper is a response to Professor Mason’s novel article, "Jay-Z's '99 Problems,' Verse 2: A Close Reading With Fourth Amendment Guidance for Cops and Perps," published in the St. Louis University Law Journal. In that article he engagingly dissects Jay-Z’s song “99 Problems” from an American criminal law perspective. In this article, I offer the Canadian response.posted by prefpara at 6:32 AM on July 17, 2012 [2 favorites]
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posted by Kid Charlemagne at 4:57 PM on July 11, 2012 [1 favorite]