Arrest and Patrol Car

All officers hear it, and it’s most likely said many, many times each and every day all across this great land of ours.

It’s a phrase that’s spoken by the wisest of the wise—the soothsayers of the legal world. The top legal minds of the entire universe..

That famous line is typically delivered in a sing-songish manner. Gently and soothingly. Almost like a lullaby.

I’ve heard it more times than I could possibly begin to count. And, I can still hear those kind, soothing words today, and they are …

“I. Know. My. Rights, you fat pig! You gotta let me go ’cause you didn’t read me my rights! Now take off these cuffs … NOW!!!!”

Miranda

When is a police officer required to advise a suspect of the Miranda warnings?

I’ll give you a hint, it’s not like we see on television. Surprised?

Television shows often have officers spouting off Miranda warnings the second they have someone in cuffs. Not so. I’ve been in plenty of situations where I chased a suspect, caught him, he resisted, and then we wound up on the ground fighting like street thugs while I struggled to apply handcuffs to his wrists. And yes, words were spoken once I managed to get to my feet, but Miranda wasn’t one of them. Too many letters, if you know what I mean. Words consisting of only four letters seemed to flow quite easily at that point.

When Is Miranda Required?

Two elements must be in place for the Miranda warning requirement to apply. The suspect must be in custody and he must be undergoing interrogation.

Writers, this is an important detail – A suspect is in police custody if he’s under formal arrest or if his freedom has been restrained or denied to the extent that he feels as if he’s no longer free to leave.

The fellow wearing the handcuffs in the photo below is not free to leave. Therefore, should the officer wish to question him he must advise him of his right to remain silent, etc. However, if the officer decides to not ask questions/interrogate, then Miranda is not required.

arrest-take-down.jpg

I’ve arrested criminals, many of them, in fact, and never advised them of their rights. Not ever. And that’s because I didn’t ask them any questions.

Sometimes officers receive a stack of outstanding arrest warrants for a variety of cases and it’s their job that day to go out and round up those folks. Those officers have no clue as to the circumstances of the crime or case details, therefore they’d not know the appropriate questions to ask. All they know is that the boss handed them a pile of warrants and told them to fetch. This, by the way, is often one of the mundane duties assigned to rookie officers, along with directing traffic and writing parking tickets.

So, the warrant-serving officers locate the person named on the warrant and haul them to jail for processing. The officer who had the warrant issued may or may not question the arrested person at a later time. But the arresting officer, the one who played hide and seek  with the crook for a few hours on a Monday morning is most likely out of the picture from that point onward. So no questioning = no Miranda.

Interrogation

Interrogation is not only asking questions, but any actions, words, or gestures used by an officer to elicit an incriminating response can be considered as an interrogation.

If these two elements are in place officers must advise a suspect of the Miranda warnings prior to questioning. If not, statements made by the suspect may not be used in court. Doesn’t mean the arrest isn’t good, just that his statements aren’t admissible.

Officers do not have to advise anyone of their rights if they’re not going to ask questions. Defendants are convicted all the time without ever hearing that sing-songy police officer’s poem,  You have the right to …

Miranda facts:

Officers should repeat the Miranda warnings during each period of questioning. For example, during questioning officers decide to take a break for the night. They come back the next day to try again. They must advise the suspect of his rights again before resuming the questioning.

If an officer takes over questioning for another officer, she should repeat the warnings before asking her questions.

If a suspect asks for an attorney, officers may not ask any questions.

If a suspect agrees to answer questions, but decides to stop during the session and asks for an attorney, officers must stop the questioning.

Suspects who are under the influence of alcohol or drugs should not be questioned. Also, anyone who exhibits signs of withdrawl symptoms should not be questioned.

Officers should not question people who are seriously injured or ill.

People who are extremely upset or hysterical should not be questioned.

Officers may not threaten or make promises to elicit a confession.

Many officers carry a pre-printed Miranda warning card in their wallets. A National Sheriff’s Association membership card (same design and feel of a credit card) has the warnings printed on the reverse side.

Fact: The Miranda warning requirement stemmed from a case involving a man named Ernesto Miranda.  Miranda killed a young woman in Arizona and was arrested for the crime. During questioning Miranda confessed to the slaying, but the police had failed to tell him he had the right to silence and that he could have an attorney present during the questioning. Miranda’s confession was ruled inadmissible; however, the court convicted him based on other evidence.

Miranda was released from prison after he served his sentence. Not long after his release he was killed during a bar fight.

His killer was advised of his rights according to the precedent setting case of Miranda v. Arizona. He chose to remain silent.

*Some individual department/location policies requires their officers to advise of Miranda at the point of arrest. However, the law does not require them to do so.


 

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0 replies
  1. Sasquatch
    Sasquatch says:

    If during the process of questioning witnesses, bystanders or “persons of interest” the millisecond they become a potential suspect,, Mirandize…period I don’t care if you are on the right coast in a southern town where the judge still thinks rubber hoses are ok or on the left [read wrong oops sorry liberal] coast everything will get tossed if the right lawyer gets hold of it…. I’ve seen that too many times to count,,,, when in doubt mirandize, {remember there is no standard warning,, what is important is informing the person}
    When I teach this and other legal in academy it’s what i teach along with how to question and stay within both the letter and spirit of the law/ruling it’s not that hard to do….. A little intelligence and lots of common sense goes a long way……

    Reply
  2. Lee Lofland
    Lee Lofland says:

    Norm – Just goes to show the differences in departmental policies. I agree with your statement that you can never advise someone of their rights too often. The question is when is doing so appropriate and/or necessary, and can doing so jeopardize an investigation?

    I’m curious. What’s your department’s policy when receiving a warrant from another jurisdiction to pick up a wanted person. I believe I’d have a problem with another officer getting involved if this was my case. It’s really not advisable to read this guy his rights or ask him any questions whatsoever. The outside officer wouldn’t know a thing about the case and could possibly ruin the entire investigation by saying anything other than, “I have a warrant for your arrest. Turn around and place your hands on the wall.”

    What do you think?

    Reply
  3. Timber Beast
    Timber Beast says:

    Great story about Sr Miranda.

    I went through the Academy during Gov Moonbeam administration. Due to CA Chief Justice Rose Elizabeth Bird and the court ((AKA “Rosie and the Supremes), suspect rights were greatly expanded. My memory tells me that my training made us Mirandize as soon as the cuffs went on (“there is no such thing as giving the rights too often”). It may be because shows are (mostly) written on the left coast that this faux pas happens.

    A well known and well-regarded crime/mystery writer often has the cops continue questioning after the guy has said, “I want to see a lawyer.” Since, he has access to the cop on the beat, and is highly thought of, I wondered how often this happens. I would think even a PD could use this to get everything tossed out as “fruit of the poisoned tree.”

    Reply
  4. Lee Lofland
    Lee Lofland says:

    Good point, Joyce. I think every department has its own pre-printed waiver form. Officers should always try to get suspects to sign a written waiver. Then there’s no question about whether or not they’d been advised of their rights. Believe it or not, suspects have been known to lie once they’re in court. I know, you’re shocked.

    Reply
  5. pabrown
    pabrown says:

    My most recent WIP is set in Bermuda and I was lucky enough to get in touch with a couple of lawyers there. They have a shorter version of ‘rights’ the Bermudian police officers read, often when they first pick up a suspect, then when more charges are laid. There is no inherent right to an attorney and no mention that one will be made available. The lawyer doesn’t even have the automatic right to see his client – he does so at the consent of the arresting senior officer. They also don’t have bail, but instead issue bonds, which in the case of a homicide can be as high as a million dollars. Two, since they ask for an extra million as a surety. Not a place you want to get in trouble with the law, especially if you’re a foreigner!

    Reply
  6. Bill Cameron
    Bill Cameron says:

    One thing that struck me on my first ride-along was the fact that when the officer I was with arrested a fellow, I never heard Miranda. After we were finished processing him into jail, I asked about it and he said, “I don’t have time to ask some idiot questions or listen to him go on and on. If I’d Mirandized him, he probably would have started jabbering left and right about who knows what and then I’d be stuck all night.”

    That arrest happened after we stopped to check on the guy sitting alone in his car under a bridge. Turned out there was a bench warrant for a failure to appear, which was why we arrested him. And, yes, the guy was an idiot.

    Reply

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