Question: When police or federal agents spoke with me before arresting me, they did not advise me of my Miranda rights, specifically including the right to remain silent. Does this mean that anything I told them will be inadmissible in court?
Short answer is probably “no”. Miranda warnings must be given when a person is arrested and in the custody of local or state police officers, or Federal law enforcement agents (such as the FBI, DEA, Homeland Security, etc.).
Our best advice when you are approached by law enforcement is not to say anything other than your name and that you want a lawyer. Be polite, but firm in making clear that you do not wish to make a statement. It is important to understand that any statements you make to law enforcement officers when you are not in their custody (or after Miranda rights have been given and waived by you) can be used against you – even comments that you think are not important or are “off the record”. Nothing you say to police or Federal agents is “off the record.”
We strongly advise that you never sign a written waiver of your Miranda rights and that you do not give a statement – written or recorded – without the benefit of experienced criminal defense counsel.
There are many technical legal issues regarding whether a person is actually in custody. These issues involve the Rules of Criminal Procedure, Constitutional Law, and precedent from prior case decisions. For example, courts have held that a person who has been detained for questioning or during a police investigation is in custody for the purposes of Miranda.
To support a valid arrest, the police need probable cause. To support detaining a person, police officers need to have an articulable suspicion. If the police approach you and you agree to talk with them, it is typically considered a consensual, voluntary encounter. In that situation, Miranda warnings need not be given because you would not be detained or under arrest at that time.
Our best advice, even if you are 100% certain that you have not committed a crime, is to not speak with the police under any circumstances other than if you need the police in an emergency situation in which you are clearly the victim.
Please don’t think that the police or Federal agents will think you are guilty of something if you don’t speak with them. Quite the contrary: they will respect you for intelligently handling the situation by being courteous and by respectfully declining to speak with them without an attorney.
And, if you have committed a crime, remember this: a fish that doesn’t open its mouth, doesn’t get caught. You may get arrested and charged with a crime, but the statements you did not make, will not be used against you.
Our experienced criminal defense team is dedicated to providing the guidance and representation you need during these challenging times. Contact us today at 305-670-9919 to learn more about how we can assist you.
