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  1. #1

    Default To Confuse the Miranda Warning Even More: Lesson for Law Enforcement/Citizens

    Almost two years ago LawDog put out an excellent article titled "Warrior Law School." Please see the link here: http://www.warriortalk.com/showthrea...hlight=Miranda

    If you havent read the article I would certainly recommend you take the time to sit down, read it thoroughly, and if there's a question that comes to mind you take the opportunity to ask LawDog. If you've thought of a question I'm sure there are others who have as well, and there are some incredible resources available here on Warrior Talk.

    We've been having issues at work with the Miranda Warnings as to when they're needed versus when they're not. While I guess I'm from a different generation of law enforcement than the new guys on the street, and even their direct first-line supervisors, I've always been extremely pro-knowledge and making sure the citizen knows the "why" behind what's happening. LawDog's article can shed light on what Miranda is and when it is used to be sure, but it is the grey area that most of us live and work in that I want to discuss today? Why discuss it? Well, for the law enforcement officer Miranda had grown to be much more than a "in custody and ask questions" issue and for the citizen I think you just need to know where you stand and what you can do and how you can know what's happening.

    These grey areas I'm talking about for law enforcement revolve around when Miranda is read. I reviewed our polices again and they aticulate Miranda is read when there is a "physical" custody of the suspect and we wish to ask questions about criminal acts believed to be committed by the suspect. This is a generic way of putting the policy, but I want you to key in on the word "physical" custody. This means in handcuffs, in the back of a patrol car with locked doors, or handcuffed to a table in an interview room.

    "Physical" is the word policy teaches; however, experience with the courts, the ACLU, and looking at best law enforcement practices shows Miranda might, and I rather is, applicable in other circumstances where the "physical" is more up for question. So, for what it is worth to new law enforcement officers, and for the value to citizen rights [which I hold far more dear], experience with the courts and on the street would have me kindly request you consider giving the Miranda Advisement in the following circumstances:

    1. The time of contact with the case suspect is unusual and not consistent with normal "I'm awake and up for the day" hours. An example would be when three officers contact a person at 2 AM reference the damaged vehicle he parked in his front driveway that is suspected in an accident down the road. At 2 AM the contact would not be a traditional event and the citizen/suspect might feel obliged to discuss the issue with officers and therefore not free to leave and go back inside his house to return to sleep. I would argue timing is everything and how timing affects the citizen/suspect's belief he's not free to return his normal life requires consideration of Miranda.

    2. The number of law enforcement officers on-scene is believed to be unusual and not consistent with normal "just ask me some questions" contact. Let me set a scene for you: One officer knocks on your door at 5 PM to ask you about a criminal act in the area and you invite him in side your house to discuss the matter - VERSUS - Five officers know of your door at 5PM to ask you questions about a criminal act in the area, you invite them in, and they stand in the doorway asking you questions. We're seeing Miranda issues brought up by courts and other entities reference this second type of event. I would argue having three to five uniformed officers, all armed, standing inside your house and blocking the doorway or hallway, even inadvertently, would make the average citizen feel obligated to stay and answer their questions. I would argue numbers of officers at the interview affect the citizen's/suspect's belief he's not free to return to his normal life requires consideration of Miranda.

    These are just two of several we've been hitting on at work recently. Now, I'll be absolutely forthcoming, agency policy says "physical control" but not one detective I've ever worked with sees it that way. The important thing to remember is what you as the citizen think and feel. If you feel you aren't free to leave due to circumstances, then inquire about what is going on.

    Two things to get out of this If I may: 1. If you're a LEO be cognizent of how you do something, with how many friends you do something, when you do something, and what return to normal life you're blocking, might be perceived by the citizen/suspect you're out with. 1. If you're a citizen you need to understand what's happening and be cognizent of what's transpiring around you. Use that feeling and knowledge to ask pertinent questions that'll help you know which way the future goes.

    Nothing here is secret, just experience from the street and courtroom. Your experience may vary, but I see no reason to re-learn hard fought lessons of life.

    LEO or citizen, start looking into the grey areas with wide and open eyes.

    Take advantage of LawDog's knowlege and read the article.

  2. #2
    Join Date
    Aug 2010
    Location
    Third Coast
    Posts
    4,180
    Double edged sword.

    Miranda applied incorrectly can make an interview harder BUT

    it is usually better to do than not in most circumstances.

    From the citizens view, watch CAREFULLY how it is applied, this is where you are "reading" the officer. With a badguy I know is a badguy, it gets slipped into the conversation along with "policy says we gotta", " I dont want to, I know youre a good guy, but Capt. says I must", " The lead detective is being a dick so i gotta read this card" (where I will be doing the questioning under the guise of conversation, probably 10 minutes after I have read and you have forgotten the warnings) etc. This is to advise Miranda without tripping alarm bells.

    Being advised of Miranda isnt always a bad thing, if we are on a scene with a body it will probably come out, thats us just checking the boxes .

    Also be mindful that the courts usually favor LE when it comes to the "knowingly waived" or "Requested a lawyer" part. (check your fed district for caselaw applicable to you 5th and 9th circuit see most things differently) so if you DO decide to lawyer up, be decisive.

    People have the RIGHT to remain silent, they just usually lack the ABILITY. This is another area where micro statements are helpful in that it codifies your natural inclination to speak and justify yourself
    NEVER CONFUSE GETTING LUCKY WITH GOOD TACTICS (unless you are at the bar)

    I'm not in the business of Losing

    A stab to the taint beats most of the mystical bullshit, most of the time

  3. #3
    Join Date
    May 2018
    Location
    Maine
    Posts
    95
    If you are just learning about your rights as the police are investigating you, it’s too late. It seems like reading Miranda rights is more a formality than anything else. Also seems like most people end up pleading guilty anyway. Most stuff never makes it to trial.

  4. #4
    Join Date
    Aug 2014
    Posts
    2,749
    Random thoughts while I think this one over:

    1. I occasionally advise involved persons, not in physical custody, of their rights in an excess of caution, in situations as described above. It helps defuse the "Was my client free to leave?" line of inquiry at the pretrial.

    2. Circumstances indicating custody or "seizure" here include where you park your patrol vehicle, whether the door to the interview room is open, how long you hold onto someone's ID while running him, and the language you use.

    3. I'm not big on ruses to gain information. In the absence of PC or reasonable suspicion, if the person I'm talking to asks, "Can I go?" the answer will be: "Absolutely." But I may add: "Before you go, is there anything you can tell me that will shed light on this (whatever)."
    Warrior for the working day.

    Es una cosa muy seria. --Robert Capa

    "...I ride the range in a Ford V8...Yippy Yi Yo Ki Yay." --Johnny Mercer

    "Can I move?...I'm better when I move."

    1, 6, 7. And a wakeup.

  5. #5
    Join Date
    May 2000
    Location
    Beyond The Wall
    Posts
    43,964
    There is a tendency, through fear-programming, to always want to remain silent. In my opinion, that guarantees suspect status. If the officers have nothing to go by except what is visible and evident, they really have no choice but to treat you as a suspect. So, yes...you have the right to remain silent...but using that card as the default also means arrest, suspect status on the report, bail (which in the course of our study means bail for a homicide), and a great deal of drama that is not necessary and easily avoidable. "hashing it out in court" is great for attorneys as that is how they get paid. By the time you are acquitted, you will likely have spent close to $500K on bail and lawyer fees (assuming a jury trial). Go for it if you have the time and the coin.

    LE do not make statements unless they are compelled because it affords them a degree of protection (they invoke rights and then are ordered to speak by a supervisor, thus their statement is made under duress, etc.). As a private citizen you don't have that available to you. A general rule of thumb is that suspects tend to receive the Miranda advisement, whereas victims do not. I expect most guys here will tend to not get into questionable shootings, so the degree of Victim Status Assignment should be high. In nearly 30 years of teaching, both LE and private citizens, and dozens of victorious gunfights by my students, none have ever been charged or imprisoned as a result of their actions.

    Some will recall the "bouncing balls of shit" analogy.

    Officer - Mr. Suarez we have to advise you of your rights by policy, etc., etc., etc.

    Mr. Suarez - I understand guys, but let me ask you...I have been clear and up front about everything that happened. What part of my statement don't you believe? And am I being considered a suspect now?

    Their response and body language will let you know more or less where you stand.
    Gabriel Suarez

    Turning Lambs into Lions Since 1995

    Suarez International USA Headquarters

  6. #6
    Yet another reason why I come here. Great insights from you guys.

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