Mimesis Law
22 November 2017

You Have the Right to Remain Silent – Except in New Jersey

May 6, 2016 (Mimesis Law) — On October 16, 2015, Rebecca Musarra was stopped on suspicion of speeding in Warren County, New Jersey by New Jersey state police officers. The troopers made a passenger side approach to the vehicle and asked for her driver’s license, registration, and proof of insurance. Musarra handed the trooper her license and registration and was trying to pull her insurance up on her cell phone when Trooper Matthew Stazzone asked her if she knew why she had been stopped.

This is a standard part of a traffic stop, and is taught to officers in the academy. It is tied into what is known as the “Seven-step Violator Contact” that most officers use. The procedure is:

  • Greeting and Introduction of the Officer and Agency
  • Statement of the Violation
  • Identification of the Driver
  • Statement of action to be taken
  • Take the action stated
  • Explain to Driver
  • Closing and leave

In the second step, officers are taught to ask the driver if they know why they are being stopped. Officers do this so that they can get the driver to admit that they committed the violation. It makes their job easier, and most people will answer the question. They want to cooperate and they do not realize that they are basically confessing to an offense if they admit that they were speeding, or that they ran a stop sign, or whatever.

Musarra did not answer or respond to Trooper Stazzone and he didn’t much like it, so he walked around to the driver’s side of the car. Stazzone then rapped on the window with his flashlight, allegedly chipping the window and told Musarra that if she did not answer his questions, she would be arrested for “obstruction.”

In New Jersey, obstructing administration of law or other governmental function[i] is a crime. The problem is that the statute requires that the offender obstruct the officer “by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.”[ii] Merely refusing to answer a trooper’s question, much less a question designed to incriminate oneself, is not obstruction.

You see, there’s this pesky little thing called the Fifth Amendment. It states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added.)

This is really not rocket science, nor does it take a great deal of intellect. It means that one does not have to answer police questions that would incriminate them. This was decided a long time ago, in Miranda v. Arizona. Pretty much everyone (except, apparently, New Jersey State Police) is aware that people have the right to remain silent.

We know that Musarra was aware of this fact; she is an attorney.[iii] So when she refused to answer the trooper’s incriminating questions, she was arrested for “obstruction” and placed in the squad car. Musarra asked if she was being arrested for refusing to speak and Stazzone replied “yeah, obstruction.” She was then patted down and put in the squad car.

The trooper immediately read Musarra her Miranda rights. Including the right to remain silent.

Wait, what?

Okay, so before she’s arrested she has to answer your questions, but now that you’ve arrested her, she doesn’t?

It’s all okay though, because according to the trooper’s attorneys, they “acted in good faith and without fraud or malice.” The attorneys are involved because Musarra has filed a federal lawsuit.

That’s outrageous! The supervisor at the station ordered her to be released with no charges. He even got her car out of impound with no charges or fees due. Really, what’s this world coming to if an officer can’t just get away with a mere constitutional right violation with an apology.

Fortunately, PoliceOne.com comments can sum it up for us.

Way to make us all look bad dummies. The fifth amendment [sic] doesn’t just apply after arrest, basic constitutional right.

It’s mind boggling these Troopers do not know the basics of constitutional law.  After a lawful stop a person is required to identify themselves not speak to you.

Ugh. That’s a payday….. they don’t have to talk to us.

Read. The. Fricking. Constitution.  Listen folks, we have a tough job, but when one of us makes a mistake like this, we deserve to be spanked.

Nothing else needs to be said.

[i] N.J. Stat. § 2C:29-1

[ii] Id., see also State v. Camillo, 887 A.2d 1151 (N.J. Super. Ct. App. Div. 2005)

[iii] In California, Delaware, and New York.

6 Comments on this post.

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  • CLS
    6 May 2016 at 10:56 am - Reply

    I do so love PoliceOne. It’s a font of material for Fault Lines.

  • REvers
    6 May 2016 at 11:30 am - Reply

    If the cretins at PoliceOne recognize it, it really is a simple concept.

    • Greg Prickett
      6 May 2016 at 12:59 pm - Reply

      Perhaps I spoke too soon. Although the vast majority of officers at PoliceOne have criticized the officers, one officer has stepped up to defend them. Everyone else is jumping on him though, so it is not hopeless.

  • Tom G
    7 May 2016 at 10:22 am - Reply

    It is a shame a citizen’s only defense in a case like this is to first surrender to an unlawful arrest, then “grieve” in the form of a civil suit against such blatant stupidity. As legal spectators, we will now see the effectiveness of all the named officers qualified immunity.

    • Greg Prickett
      7 May 2016 at 12:37 pm - Reply

      Qualified immunity should not help them. While I am not a NJ lawyer, it appears to me that the law is clearly established. There is no question that there was an unreasonable seizure of her. QI does not protect “the plainly incompetent or those who knowingly violate the law.”

  • Brad
    8 May 2016 at 5:47 am - Reply

    There is a good chance she will lose because, as far as the Constitution is concerned, there was probable cause to arrest her for speeding (presumably).

    This case actually points up the emerging (but not yet firmly established doctrine of retaliatory arrest). While most retaliatory arrest claims are based on 1A, this one would seem better based on 5A. The alternative ground to arrest (here, speeding) takes away the 4A claim fr false arrest, but a retaliatory arrest claim under 1A or 5A might still work.