The primary purpose of Court.rchp.com is providing free information so people can learn to represent themselves in court and act as their own attorney. However, when you're charged with a criminal offense and facing jail time, we recommend using this site to educate yourself so that you can evaluate the recommendations made by your lawyer. Because of heavy case loads, a public defender may suggest a plea deal, even when the prosecution has a weak case. Having the ability to have a productive meeting with your attorney could mean the difference between jail and freedom.
Just because the arresting officer didn’t read you your rights doesn’t mean you can beat your case. Law enforcement agents are only required to read you your rights if both:
(1) you’re under arrest, and
(2) they want to ask you questions
So if the officers haven’t arrested you yet, they can ask you questions without reading you your rights, and your statements will still be used against you in court. For example, during a conversation or a detention, the police don’t have to read you your rights. As you can guess, a smart cop may try to get all his questions answered before officially arresting the suspect.
Sometimes, officers don’t bother to read the Miranda rights, because they don’t really need to question the suspect. There may be good eye witnesses or surveillance tapes. Or the suspect may just be babbling, as Kaitlin did in Five Finger Discount. After all, why would an officer interrupt with questions if the suspect keeps on making stupid statements without any prompting?
The moral of the story is, don’t wait for the police to read you your rights. They may not do it at all, or they may at least wait until you’ve already made lots of damaging statements.
When the police are conducting an investigation, but don’t have enough evidence to detain or arrest you, they’ll try to get you to chat with them. They may call this a “casual encounter” or a “friendly conversation,” etc. If you cooperate, you’re likely to give them the very facts they need to arrest you. If an officer tries to start a conversation with you, find out whether you’re free to go. If you are, then you should leave immediately, without saying anything else.
Sometimes, an officer will ask you to come to the police station “to answer a few questions.” 1 Don’t do it. There’s a good chance you’ll leave the station in handcuffs. Just tell the officer no. If you’re outside, walk away; if you’re inside, close the door; if you’re on the phone, hang up. Then contact a criminal defense lawyer right away.
1. "Will you walk into my parlor?" said the spider to the fly. The Spider and the Fly, line 1, by Howitt, Mary.
Detention is a short period of custody, often occurring while the police are deciding whether or not to arrest you. In order to detain you, the police are supposed to have a reasonable suspicion that you’re involved in a crime. This suspicion must be more than a mere hunch, and the police must be able to put their reasonable suspicion into words. That’s why it’s sometimes called an “articulable suspicion.” For example, if an officer stops an individual, it would not be enough for the officer to be thinking, “He looked like he was up to something.” The officer’s thoughts would have to be more specific, such as, “He kept looking in the window of the jewelry store, then walking away, then coming back and peering into the store again. And he wasn’t from the neighborhood. He seemed nervous and agitated, so I thought he might be planning a burglary.”
Usually, a reasonable suspicion is based on multiple factors, such as: the suspect matches the description of a wanted criminal; the suspect drops an object after seeing the police; the suspect runs away after seeing the police; etc.
Detention is supposed to last only a short time and should not involve changing location, such as going to the local police station.
It may be useful later on, when you’re fighting the case in court, to have asked the officer why you’re being held. If the officer cannot articulate his suspicion, you may be able to show that your detention was unlawful. Obviously, this tactic will work better if you have witnesses who will testify that the officer made an inadequate reply. (Without witnesses, it’s just your word against the police officer’s, if the officer lies about what he said.)
During a detention, the police are entitled to pat the outer surface of your clothing, to check for guns, knives or other weapons. If you’re detained while driving, the officers can look inside the car for weapons (but not in the trunk). A detention search is conducted only to ensure that the detainee has no weapon. While detaining you, once the police have patted you down and haven’t felt anything that could be a weapon, they cannot then examine the contents of your pockets. However, they may try to trick you into “voluntarily” allowing them to search further than they’re entitled during a detention. The officer will ask you to show him the contents of your pockets, bags, trunk, etc. The request will usually sound like a casual order, especially when the officer uses a commanding tone of voice:
• Let’s see what’s in your bag.
• Want to pop open the trunk for me?
• How about showing me what you’ve got
in your pockets?
Never give permission to law enforcement officers to search. It’s important to state your refusal clearly (rather than just shaking your head), so that the police can’t misunderstand.
You can be arrested by an officer or a citizen who sees you commit a crime. And even if they didn’t see you, the police can arrest you if they have probable cause to believe that you’re involved in a felony (or sometimes a misdemeanor, depending on the type of crime and the jurisdiction). The facts adding up to probable cause vary, according to the nature of the case. Say, for example, the police received a call from a store owner that someone matching your description had just spray-painted lots of graffiti all over the front of his store. The police drive to the area and notice you running down the street, about a block from the store, holding a can of spray paint in your hand. Under these circumstances, the police would have probable cause to arrest you. They don’t need an arrest warrant as long as they have enough facts for probable cause. Probable cause is more than a reasonable suspicion, but less than the level of proof required to convict you at trial (proof beyond a reasonable doubt).
Once you’re under arrest, the police can search your clothes, your body, your bags, your car, etc. In addition, after arresting you, the police can search your “wingspan,” the area within your immediate control. Your wingspan could include a whole room, if the room is small enough that you could lunge to any part of it.
A detention frequently turns into an arrest, particularly if you answer the officer’s questions. Physically resisting the police will almost always turn a detention into an arrest—even gently touching a police officer can result in charges of assault or battery on an officer. If the police find a weapon or see drugs while detaining you, that’s likely to provide the probable cause necessary to arrest you. For instance, the police might detain you to see whether you match the description of a particular crime suspect, and then discover an illegal knife while pat-searching you. Or the police might pull you over when you’re driving and detain you to write a ticket, and then spot an open alcoholic beverage container in your car. Once you’re under arrest, the police are allowed to search your clothes and body and to go through your bag and/or vehicle.1
Basic Responses to Detention and Arrest
As soon as you perceive that you’re not free to go, say the Magic Words: I’m going to remain silent. I would like to see a lawyer. By invoking your rights at the very outset, you make it much harder for the police to trick you into saying things that can be used against you in court.
Of course, remaining silent is hard to do. It’s human nature to try to talk your way out of trouble. Nervousness makes people want to talk, too. Naturally, the cops are aware of these tendencies and use them to manipulate you into answering questions. It takes real self-control to exercise your right to remain silent, but it’s the best possible thing you can do for yourself, in terms of criminal defense strategy.
The biggest mistake that people make is waiting for the police to prompt them. Since the cops’ goal is to get you to provide information, they will carefully avoid giving you a cue that reminds you to be quiet. So as soon as you confirm that you’re not free to go (by asking or by trying to leave), say the Magic Words: I’m going to remain silent. I would like to see a lawyer.
Do not wait for the police to say “You’re under arrest.” They do not always say it and they’re not required to do so.
Do not wait for the police to read you your rights. They may not bother to do it (and they’re not required to read you your rights unless you’re under arrest and they want to question you).
Remember that the best defense is a good offense. Say I’m going to remain silent. I would like to see a lawyer, early and often: Don’t worry if the police make fun of you for saying the Magic Words before they’ve formally announced that you’re under arrest or before they’ve read you your rights. This teasing is merely another trick, to make you unsure of yourself.
Training yourself is critical. It’s hard to have the right moves in an emergency—like an arrest situation—if you haven’t practiced. Soldiers, during their training, are drilled so that they automatically give only their name, rank and serial number when they’re being interrogated. You need to develop the same reflexes, because if you’ve been taken into police custody, you’re definitely in enemy hands. Your job is to give only your name and address, then say the Magic Words and stop talking. Because in this situation, the police are not on your side. The officers may just be trying to find a reasonable suspect (if not the actual suspect), or they may dislike your ethnicity or attitude. Whatever the circumstances, once you’ve become a suspect, the smart thing to do is to say: I’m going to remain silent. I would like to see a lawyer.
1. If you're arrested in your car, the police are allowed to search the passenger compartment, but not the trunk (unless they impound the car).
Who Must Read the Miranda Rights to a Suspect
Both state and federal law enforcement agents have to read you your rights before they can question you in custody. This includes:
• Police and highway patrol officers
• Sheriffs and U.S. marshals
• FBI, DEA, ATF, and other federal agents
• Park rangers
• Probation and parole officers
The only people likely to have you in custody who don’t have to say the Miranda warnings are private security staff (security guards, rent-a-cops). These security guards sometimes have fancy uniforms and badges, and carry guns, so it’s not always easy to tell them from real police.
You should always invoke your rights, whether or not you’re dealing with a real law enforcement agent. It won’t hurt you if you say the Magic Words to a private security guard. The worst that can happen is that he’ll make fun of you. And you’ll at least have reminded yourself of your own best strategy, by saying: I’m going to remain silent. I would like to see a lawyer.
Private Security Staff
Private security guards, “loss prevention agents,” and “asset protection agents,” are making a citizen’s arrest when they bust you, since they aren’t really police. They typically keep you in custody and call the police to come pick you up. They’re allowed to restrain you physically, while they wait for the police to arrive. They can grab you, handcuff you, lock you in a room, etc. Like police, security staff are not supposed to use more force than is necessary to ensure that you don’t escape.
Naturally, private security staff are not required to read you your rights, since they’re not really police. However, anything you say to private security can and will be used against you in a court of law. Some businesses instruct their security staff to note, in particular, the “subject’s first words at time of detention” (because such statements won’t have been well thought out). But all statements, from first to last, made to private security staff are dangerous and likely to be quoted or misquoted in their reports. And it’s so very tempting to try to explain everything to the security staff. After all, once in a while this works. Some people have been caught engaging in some minor crime, and then talked and cried their way out of trouble. Obviously, this is more effective while you’re still young and cute; and it may work better for girls than for boys.1 Unfortunately, on the occasions it doesn’t work, you’ll have sabotaged any hope of a legal defense, because what you’ve said will certainly be used against you court. That’s what happened to Kaitlin in the Five Finger Discount. Not surprisingly, for those who take this gamble, the odds always seem better than they really are. Both cops and casinos win big, betting on the gambler’s optimism.
In addition to getting you to make damaging remarks, security staff may also persuade you to give a statement in writing or sign a statement they’ve prepared for you (see Merchant Confession Forms).
Most businesses with professional security staff also have clear policies about when and whom to arrest. For example, a store may have rules such as: the security staff must not arrest a suspect unless the agent has had an uninterrupted view of her; or juveniles and first-time shoplifters are let go with a warning. But most businesses that employ security staff have a policy of arresting every valid suspect. And if the suspect runs or fights, or doesn’t have i.d., the security staff is virtually certain to arrest him. Security guards nearly always follow the store’s policy in deciding whom to arrest—it’s just not worth it to the guard to risk getting reprimanded or fired for taking pity on a suspect. Besides, after a few weeks on the job, security staff find that they’ve heard all the excuses over and over. So when suspects talk to security staff, they only make things worse for themselves.
In a case involving theft, it doesn’t matter whether or not the suspect leaves the premises. Once you’ve picked up someone else’s property and taken it to keep, without being entitled to it, that’s larceny. Usually, store security staff wait for shoplifters to leave before they grab them, so the suspects can’t claim that they were intending to pay for the goods before exiting. But security staff may also arrest shoplifting suspects before they’ve left the store, since concealing the merchandise indicates that there was no intent to pay.
1. One drawback to the winsome approach is that occassionally a corrupt security guard or cop will demand sexual services for letting you go, which many people find distasteful.
Click graphics to enlarge
See other Miranda Rights related pages:
- The Miranda Rights
- How to Invoke your Miranda Rights
- Don't Talk to the Police
- Police Officer Tricks
- Watch out when remaining silent
©2007 Katya Komisaruk
Republished by permission from the Just Cause Law Collective