Miami Miranda Warning Attorney
Much has been written about so-called Miranda warnings. In 1966, the United States Supreme Court issued the landmark decision in the case of Miranda v. Arizona. The Court ruled that a suspect who is in custody must be advised of his right to remain silent and also of his right to be represented by counsel prior to being interrogated. Anticipating the backlash to the decision by law enforcement officials, the Supreme Court later made it clear that neither Congress nor state legislatures can get around the Miranda requirements by passing laws, since the Miranda decision was predicated upon the United States Constitution.
There isn’t a week that goes by in my criminal defense practice, when a person who has been confronted by law enforcement officers states that the police spoke with them and questioned them without giving them the “Miranda warnings.” I imagine because of TV shows and movies, the public often believes that Miranda warnings must be given immediately when a person is questioned by police officers or other law enforcement agents. Such a view is incorrect. A person is entitled to Miranda warnings when they are “in custody.” That does not mean that the person must have been formally arrested. Miranda warnings must be given when a reasonable person in the suspect’s position is restrained of his or her freedom of movement so that he or she feels that he or she is not free to leave the presence of the law enforcement officer.
Law students and lawyers spend years studying the thousands of cases citing Miranda because there are so many facts and circumstances bearing on the issue of whether Miranda and the decisions following Miranda were complied with. In this brief post, I simply want to make you aware of a few matters which are necessary for a basic understanding of Miranda compliance.
Whether the person is “in custody” is an objective test, not a subjective one. Upon the filing of a motion to suppress statements made when Miranda warnings were not given, the trial judge will assess whether the person was in custody by considering, objectively, whether the “average person” would believe that they were not free to go. There are many factors that will be considered by the trial judge. Because criminal law and procedure is so complex, please understand that there are numerous exceptions to every law and rule. For example, there are special laws that apply when a person crosses a border or enters the United States at an airport. When they are held at a certain area for secondary questioning, courts have held that that circumstance is usually not sufficient to prove that the person was “in custody.”
Traffic stops usually do not constitute being in custody when the police officer who stopped you questions you briefly.
At a crime scene, it is common for police officers to question possible witnesses. Let’s say that one of those “witnesses” is ultimately arrested, based on answers that he or she gave to the police officer. It is generally held that the person was not in custody when he or she chose to talk to the police officer at the crime scene.
Before we go further, let’s understand what a proper Miranda warning provides. The person has the right to remain silent; anything the person (suspect) says can be used against him or her in court; the person has the right to have an attorney present and that the person, if he or she cannot afford an attorney, has the right to have an attorney appointed to represent them. Generally, there are no exact words that must be given to comply with Miranda, as long as the warning is not misleading. Of course, people often waive their Miranda rights and voluntarily talk with law enforcement officers. If they do so, after proper Miranda warnings, their statements are fully admissible against them.
Few things in the law are absolute. In a terrible decision, the United States Supreme Court held that statements made in violation of Miranda may be used during cross examination to show contradictions by a defendant who testifies in his or her own trial. For example, if a person gives a statement after improper Miranda warnings were given or after no Miranda warnings were given, or after police continued to question a defendant after his invocation of his right to counsel, a person may still be cross examined about his statements given in violation of a Miranda decision.
There is another exception that is invoked by the government more frequently these days. It is called a “public safety exception.” When police officers arrive at a crime scene or are making an arrest, usually involving weapons, bombs, other explosive devices and possibly even drugs, police may, in limited circumstances, question the persons allegedly involved on matters relating to the presence of those items without giving Miranda warnings. The questioning must be brief and relating to items that may pose a threat to the officers’ safety. Federal judges are inclined to allow incriminating statements into evidence under the “public safety exception.”
Police officers and federal agents often resent it when an individual invokes their right to remain silent. Some law enforcement officers take it as a personal affront. So, when a person is being interrogated, they must make it clear that they wish to remain silent. That desire must be respected by the officer or law enforcement agent attempting to question the individual.
I remember representing a fellow in the 70’s who was charged in federal court. He was given his Miranda rights, and he clearly indicated that he did not wish to speak with the law enforcement officers who were desirous of interrogating him. His invocation of his rights was ignored. The law enforcement officers continued to try to get him to talk with them and incriminate himself by repeatedly advising my client of his Miranda rights. Finally, while my client was being held in custody, in a jail cell, and was approached by the law enforcement officers for the fourth or fifth time, each time reading him his Miranda rights, he finally gave them an incriminating statement. I filed a motion to suppress his statement in the United States District Court in the Southern District of Florida, in Miami. The trial judge, an experienced United States District judge, denied my motion, ruling (incorrectly) that the waiver by my client was certainly voluntary, since my client was advised of his Miranda rights so many times. I appealed the trial judge’s decision to the United States Court of Appeals. The then-chief judge of the Court of Appeals reversed the United States District judge, agreeing with my argument that my client’s invocation of his right to remain silent was not scrupulously honored, as was required. The court essentially held that the district judge did not understand the implication of declining to answer questions under Miranda because it is clear that the invocation was ignored when the law enforcement officers continued to read Miranda rights to my client. The court held that the waiver was not freely and voluntarily waived and ordered the statements suppressed. So, the message is clear that when a person invokes his or her right to remain silent, that invocation must be honored by the police.
I advise my clients – and students when I am invited to guest lecture at high schools and colleges around the nation – that they should always invoke their right to remain silent. I also advise never to sign a written waiver of your Miranda rights (or to sign a consent form to search) until you have had an ample opportunity to discuss the situation with your criminal defense attorney.
Don’t be amongst those who believe that invoking your right to remain silent will convince the police of your guilt. Remaining silent – at least until you speak with your criminal defense attorney – is always the smart thing to do when the police are investigating a crime.
I suggest telling the police, politely, something to this effect: “I have a lawyer and I do not wish to talk with you or anyone about this matter at this time. Please do not question me because, respectfully, I am not going to answer any questions and I am not going to reply to any accusations. My lawyer is Jeff Weiner. Please allow me to call him immediately. I do not consent to any searches or seizures and I do not and will not waive any of my constitutional rights without consulting with my lawyer first.”
I don’t remember ever seeing a situation when invoking Miranda rights has been detrimental to the person who does it.
When there is a violation of your Miranda rights, your attorney will file a “motion to suppress.” In the context of confessions or illegal searches, such a motion asks the trial court to suppress or to keep such evidence from coming before the jury during the trial, or, if it is a non-jury trial, known as a “bench trial”, to have the court decline to consider such evidence. Your criminal defense attorney will discuss the filing of a motion to suppress with you, depending on the facts and law in your case.