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Berke agency rejects constitutional rule to Mirandize all arrestees

David Roddy gives one of many interviews as Chattanooga’s chief of police. (Photo Newschannel9.com)

Chattanooga police department in its policy for traffic stops omits a significant element of public protection against arbitrary state power and poisons relations between Mayor Andy Berke administration and members of the public, especially those traveling on the public right-of-way.

And that significant element is the legal warning police are required to give to everyone they arrest. The relationship between the people and the police is cheapened and corroded by craft and subtlety of officers who put people under arrest without the citizen’s knowing it.

By David Tulis / Noogaradio 92.7 FM 95.3 FM HD4

The policy violates the basic rule in Tennessee law: A stop = arrest = seizure. When the blue lights come on, according to the Tennessee supreme court, an arrest is taking place. 

The cases that establish the nature of traffic stops are State v. Garcia, 2003, and State v. Raspberry, 1982, and Robertson v. State, 1947. See “Arrest,” Tennessee Jurisprudence.

If an arrest takes place, defendants are to be given their “Miranda rights.” The traffic stop policy written by Chief Fred Fletcher, who quit the department in July, does not require a reading of Miranda rights for all people arrested in traffic and transportation. The Miranda rule appears under a policy paper, “Arrest Procedures,” however.

A person arrested should be mirandized; he should thus make no statements or give no document if he intends to invoke, assert and defend constitutionally guaranteed, God-given inherent, inalienable or statutory rights or alleged privileges. A person under arrest should make no statement apart from counsell and should know that anything he says or gives to an officer will be used against him in court.

Eroded rights, callous treatment

Police departments around the country routinely pretend that people under arrest are not being arrested, but are merely being detained or are subject to an investigatory stop or wellness check. This pretense is misleading to the user of the car or truck and invites that person speak freely, in such a way that the officer can use his words to obtain probable cause or to firm up probable cause or articulable suspicion to impose a lawful arrest.

An officer cannot legally stop a person apart from probable cause or a warrant under the Tennessee bill of rights. But, as state government continues to erode God-given and constitutionally guaranteed rights, it allows for a reasonableness standard in the officer’s evaluation of a prospective encounter. Reasonable suspicion is now almost as good as a warrant or probable cause. Because the standards of constitutional protections are lower, Chattanoogans and Hamilton County residents, and people traveling through the area, should be on their guard to avoid yielding constitutionally guaranteed rights.

Most people are unaware of their rights. Because they do not know how to assert them, they effectively have no rights. Constitutional rights are not self-asserting. The widespread carelessness among Tennesseans about the rights protected under Miranda has allowed this lax state of affairs to reign for many years in Chattanooga other parts of the state.

Miranda warnings obligatory even in traffic

The traffic policy implies that a Chattanoogan alongside the road is not being arrested. However the Miranda material on Page 6 of the 13-page arrest procedures demands it.

Here is the Miranda system, lifted from the “arrest procedures” policy:

1. You have the right to remain silent. 2. Anything you say can be used against you in Court. 3. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. 4. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. 5. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time. You also have the right to stop answering questions at any time until you talk to a lawyer.

Officers are told: “Although these warnings must be given only before interrogation takes place, it is good practice to give them immediately after arrest, thereby making any offhand remarks or other voluntary comments by the offender admissible in court.”

It is common for young black men in Chattanooga to have been arrested 20 and 30 times, most often in use of their cars. City councilman Anthony Byrd, who is black, says he has been “stopped” “30, 40, 50 times,” too many to count. In the arrest of city councilwoman Demetrus Coonrod, who is black, traveling in her car downtown with hospital worker Anthony Gladden at the wheel, officer Tiffany Lentz gives no Miranda warning. She is testy when Mr. Gladden raises his voice in speaking to her after she tells him she cannot hear him.

Mr. Berke’s police department does not mirandize people, at least in traffic arrests, and thereby deprives them of their rights and due warning required by the U.S. supreme court. The Miranda system is a legal workaround of the 4th amendment barring unreasonable searches and seizures. The high court wants to allow for the police state but also to retain some elements of constitutional protections for the people, according to legal historian Roger Roots.

Traffic stops are commercial

The rules for motor vehicle stops are all commercial under title 55 of the Tennessee Code Annotated. The vocabulary of the three-page policy signed by Mr. Fletcher is entirely that of commerce. Driver. Vehicle. Motorist. Motor vehicle. Traffic. Driving techniques. Vehicle operator. Passenger. These terms are all from commerce and the public use of the public right-of-way under state regulation.

Hispanic immigrants, the illegals, free-range travelers such as Arthur Jay Hirsch (middle Tennessee) and others are likely to be targeted as if they were commercial operators and carriers, even though they are using the public right away privately in their cars and trucks. Particularly for people exercising constitutional rights, knowledge of the right to remain silent is important.

Most Tennesseans, gulled by state action since the 1940s, believe that all use of the road must be in commerce, and so most people submit themselves to regulation by voluntary admission and by application to the department of safety and homeland security for permission to use the roadway, as if they were common carriers for hire.

Despite the invasion against private travel by commercial government, the duty of officers to warn arrestees remains as a matter of law.

The commercial nature of these encounters is confirmed in a four-point discussion about “ stopping commercial vehicles,” which are referred to as vehicles having a driver or operator. The section offers pointers for the officer about a “commercial vehicle violation.” All commercial vehicles are subject to the department of transportation.

TennesseeWatchman.com

 if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and the sword comes and takes any person from among them, he is taken away in his iniquity; but his blood I will require at the watchman’s hand.

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