About a month ago, I got a letter from some people in Arizona. Inside were a couple of grainy black and white pictures of a woman, driving my husband's car through what looked like a red light. The letter was not from the police department or the district attorney. It was from a private company, the kind of company that wants you to get in touch with them to lower your mortgage. Pulling the pictures out of this envelope was disturbing. It was vaguely reminiscent of the film noir moment when a manila envelope is slid under the door of someone you've been watching do something terribly wrong. In black and white, in a city where it's always foggy. Inside the manila envelope are bad quality photos and a request for payment.
Here, there was no request for payment. Not yet. What they wanted was for me to say that woman was me.
I thought about it for a few days. I did indeed remember that flash of light and that very street where the picture was taken. What I remembered was going through a yellow light on a rainy evening. I was not speeding. I continued through the intersection when the light turned yellow, not wanting the car that was tailgating me to slam into me if I stopped. And there was no one at the intersection to my left or right. That's my defense. It was what I would have told a cop who'd pulled me over.
What irritated me was not that I'd been caught doing something I was trying to get away with. What bothered me was the assumption by the people who sent me this letter that I'd just confess to running a red light. And, more, that I wouldn't know that I don't actually have to do that. You can't ask people to confess to crimes. Actually, you can ask them to, but they don't have to answer. That notion is enshrined in the Fifth Amendment to the United States Constitution. In my work as a lawyer, I have seen an amazing number of people who were apparently not aware of this basic principle: you don't have to answer when a cop says, "Did you do it?" All those people who answered when asked that question? They all went to jail.
The letter I got probably generates a lot of revenue for the City of Emeryville. It does so by relying on a simple fact of human nature: we all want to answer questions. In fact, we love to answer questions. Even, apparently, questions like "where did you put the knife you used to murder your husband?" And so, when people are asked to admit something, they almost always do. Even though they don't have to and it is not in their interest to do so.
Me, I'm not going to answer that letter. The state is responsible for proving that I ran a red light. It is okay to make them jump through all the hoops to do that. It's what keeps innocent people out of jail. It's what keeps us from turning into a police state. I'll let you know what happens.
Thinking about the Fifth Amendment got me to thinking about the Fourth. I've also noticed how often the police say things like, "Mind if I have a look around, ma'am?" People give their permission to these searches at an astonishingly high rate, a rate so high that it makes me think many people might not know that the answer does not have to be "sure, go ahead." You can say, if you wish, "Yes, I do mind. No, you cannot search my house/my purse/my car without a warrant." There are times when you might be fine with letting the officer look around. There are times when you aren't. The important thing is that you know you can say no. It is also the case that many times people give their consent to searches because they are intimidated by the police, afraid to exercise their right to say no. That is why it is all the more incumbent on those among us who are not vulnerable to that kind of intimidation to speak up.
The same rule applies when a police officer asks you questions about what you've been doing, or what you've recently done. You don't have to answer those questions. If you don't want to, you can tell the officer you're not comfortable answering those kinds of questions — and then don't. Think of it as a way to remind our government of the existence of the Fourth Amendment, the one that talks about our right to be free from searches without probable cause.
They need to be reminded, because apparently they don't think we care very much about it. That's why they have our phone records.
I don't say this because I want you to hide the harm you might have done. You should make amends for the things you do wrong. I say this because if we don't understand and exercise our constitutional protections in small matters, they might not be there when we want them in big matters — which, come to think of it, is right now.