You both get muddy

March 6, 2012

One of the hardest things for a criminal defense lawyer to overcome in a trial is his clients own statements to the police.  Many people believe that anything they say to the police cannot be used against them unless the police read them the Miranda Warning.  The fact is, however, that the Miranda Warning only applies to a rather narrow group of people.  

Two conditions for Miranda

The police are required to read what is known as the Miranda Warning to you when two conditions have been met.  First, you must be under arrest. The police do not have to say any magic words in order to place you under arrest.  Instead, courts typically look at whether a reasonable person under the circumstances would have felt they were free to leave.  Freedom to leave, however, is not the only criteria.  The police can detain you for an "investigative stop" without the courts saying you were under arrest.  Typically, these are in cases where the police pull you over for a traffic or other violation of the law.  The police are allowed to detain you for a reasonable amount of time to conduct their investigation and issue you a warning or traffic ticket.  After that time period passes, however, the detention will either be deemed voluntary or compulsory.

Voluntary is always the State's strongest argument.  You are free to sit and talk with an officer as long as you and he both agree to do talk.  The police are not generally required to tell you that you are free to leave in order for a traffic stop to turn into a voluntary stop.  One typical scenario we see is that the police will stop you, write you a ticket and tell you that you are free to leave.  Then, just as you reach your door to get back in your car the officer will yell out something like, "Hey Mr. Burns, can I talk to you for a minute?"  You then walk back and talk with the officer.  This is usually considered a voluntary encounter because the reason the officer stopped you has concluded and you were released.  You then voluntarily chose to return to the officer and carry on a conversation.  Of course, on the side of the road you are likely to think that you have to comply with the officer's request to talk.  

The second condition that must be met before the officer is required to read you the Miranda Warning is that the police must ask you questions.  There are a number of cases where a suspect has been arrested and the officer has not read him the Miranda Warning.  The suspect, thinking he is smarter than the cop, will then just start blabbing all of his business on the car ride to the jail.  The suspect thinks that since he was not Mirandized the state cannot use anything he said against him in court.  WRONG!  In all of these cases the courts find that the suspect statements were voluntary and not solicited by the officer, thus they allow them into the trial as confessions.

Ask and Ye Shall Receive

If you are dealing with the police it is best to ask the officer at the beginning of the encounter if he is requiring you to stay there and talk to him, or whether he is requesting you to stay and talk.  Officers are trained to answer this question as vaguely as possible.  They will say things like, "Why don't you want to talk to me?", "You don't have anything to hide, do you?  An innocent person would not object to talking to the police."  Don't fall for this bait.  Before you know it, he will pull the bait and switch the once voluntary stop into an arrest because of the things you "voluntarily" told him.

Also, if the officer tells you that you are not free to leave, then ask him to please let you know as soon as you are free to leave.  Make you request explicit and make sure the officer acknowledges your request.  If the encounter with the officer goes further than five minutes I would recommend asking him every five minutes whether you are free to leave, and specifically tell him that you want to leave.  That way, the state will not be able to argue that your encounter with the police was voluntary at any point.

It is still best not to talk the police without an attorney.  Some people will talk the police without an attorney because they think they do not have anything to hide.  Others will talk because they think they can lie or bluff their way around the officers questions.  Still others will talk because they are under the impression that they are required to answer police questions, or due to psychological pressure.  The fact is that you will not likely know what the police officer is really investigating when he stops you.  Give him your driver's license, proof of insurance, and registration, then remain silent.  You may be smarter than the cop, but you are on his turf and whatever he does will have tons of government lawyers to back him up for free.  You have to pay for a lawyer to back you up.  He doesn't.  You may win the battle but lose the war. Finally, do not underestimate the value or intensity of psychological pressure.  In police encounters it is incredibly tough.  That is why we have false confessions, and people turning over evidence against themselves on a daily basis.  Understand that the best way to win a police encounter is to not engage in it.  You'll be ahead of the game if you do.

Do you have an example of a time when you had an encounter with the police that one of these three factors came into play during the encounter?  What were the circumstances?  How did it turn out?  Would you do it differently after reading this post?  Share with us below.