Miranda Tricks

May 29, 2012

If you get stopped for a traffic violation do you know what to say and do to protect yourself against being searched or arrested?  Do you know what rights you have to travel freely? 

The truth is that while many people think they know what their rights are, many of us are uninformed.  Many people still believe that anything they say cannot be used against them if the officer did not read them the Miranda Warning.  The truth is, the Miranda Warning only applies to a very narrow situation. 

Generally, the police only have to read you the Miranda Warning after they have taken you into custody, but before they ask you questions meant to get you to make statements against yourself.  Police are sometimes taught not to Mirandize you in hopes you will just blurt out incriminating statements on the car ride to jail.  There have been many cases where that exact thing has happened.

The Miranda Protection does not protect you from incriminating yourself voluntarily.  It only seeks to advise you that you have a constitutional right to remain silent.  The lack of a Miranda Warning is not a defense if you start telling the police things that implicate you in criminal activity when they have not both arrested you, and questioned you.

Where this comes into play more and more is in traffic stops.  The police stops you, issues you a ticket, and let's you go.  He then strikes up a conversation with you before you actually leave.  Since he has released you, if you answer any of his questions then you do so voluntarily.  This compulsive stop has now turned into a voluntary police encounter.  The courts will say that you voluntarily stood on the side of the road talking to the cop.  Of course, the courts are failing to recognize the level of intimidation that comes with a uniform, badge, and gun.  Since you are not in custody, the officer can ask you anything he wishes without reading you the Miranda Warning without violating the Court's holding in Miranda v. Arizona.

Lawyers are taught in law school that they must evaluate every step of a police encounter in order to determine what type of encounter it is, and what Constitutional protections exist at each step.  It is a good idea for you to do the same when you are talking to the police.

Always ask the officer whether you are free to leave.  If he says no, then ask him to tell you the first moment you are free to leave, and ask him to agree to do so.  If he will not agree to do so, then you can bet he is planning on developing evidence against you for some crime, and wants to keep you with him as long as he can.  When the officer tells you that you are free to leave, then do so.  If he is trying to investigate you further he will continue to talk to you.  Tell him you are not interested and leave.  If he stops you, then you are not free to leave and should continue to remain silent.

A lot of people are in jail because they thought they knew their rights and tried to outsmart the police.  But, police are well trained at how to get information from you that you don't even know they are collecting.  Anything you say or do will be evaluated by police supervisors, prosecutors and judges.  The best thing you can do is remain silent until the officer tells you that you may leave, and then do so immediately.