MIRANDA: Can Your Case be Thrown Out if You Were Not Read Your Rights?

LOS ANGELES - July 17, 2014 - PRLog -- “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

As most people know from TV, this is the MIRANDA warning that the police always give when they are arresting someone. Because so many people are familiar with it, we at McDowell & Associates, Attorneys receive phone calls similar to this one at least five times per week: “The police arrested me, but they didn’t give me my MIRANDA warning.  So they have to dismiss the case, right?”  Wrong.

First, when are you actually under arrest?  It may be before you are in handcuffed.  The Supreme Court has ruled that a person is under arrest when a reasonable person would not feel free to leave.  A quick example would be: you are jaywalking and a police officer sees you, he calls you over and asks for your I.D. and begins writing you a ticket.  You are not under arrest at this stage (see Terry Stop below). However, after writing you the ticket, he asks you to walk with him across the street while still holding onto your I.D.  He then begins asking you questions about a recent burglary in the area.  At this stage you are probably under arrest as a reasonable person would not feel free to leave.  The best way to find out is to simple ask the officer if you are free to leave, if he says yes, kindly ask for your I.D. back and go on your way.  If he says no, STOP TALKING and ASK TO SPEAK TO AN ATTORNEY.

Okay, back to MIRANDA.

It is true that the MIRANDA warning is mandatory in California, as well as the other 49 States, and that police officers are required to explain your rights to you ifthey are going to question you after you are arrested.  However, police do not have to read you your rights unless they are going to question you about the incident that lead to your arrest.  If they just arrest you, and take you to the station for booking and then onto jail, they do not have to read you your rights.

However, there are a few exception to this: yes, there are always exceptions.

Police Officers are allowed to ask you general information questions such as your name, address, where you were going, etc., without reading you your rights. (See Jaywalking example above)

The police are also allowed to stop you briefly, called a Terry Stop, and question you if they have “reasonable suspicion” that a person may have been engaged in criminal activity.  When a police officer observes unusual conduct which leads him or her to reasonably suspect criminal activity may be occurring and that the person with whom he/she is dealing may be armed and presently dangerous, or is about to commit a crime,  the officer might approach and briefly detain the person for the purpose of conducting a limited investigation.

One of the best examples of this is at a DUI stop, when a person is not necessarily free to leave but is not under arrest yet either – just detained under “Terry.”  He may not give you the MIRANDA warring yet, because he plans to question you first and then decide if he has enough probably cause to arrest you.

During this limited “detention” period, anything you tell the officer will not be excluded as evidence just because you were not given MIRANDA.   Likewise, if an officer is about to or has placed you under arrest and hasn’t given you MIRANDA yet, but you get nervous and start to confess to a crime, that confession will probably not be excluded because you made that statement without any prompting from the officer.

Even many police officers, do not understand the point at which a person is truly under arrest according to the law.  That is why many times officers violate a person’s rights and it’s possible for your attorney to get evidence suppressed.

Finally, even if the officer violated your rights and failed to give you the MIRANDA warning when he/she was required to do so, your case may not necessarily be dismissed.   The evidence the officer obtained in violation of MIRANA and any evidence subsequently obtained as a direct result of that evidence may be excluded, but any evidence that officers obtain independently can still be used against you.

An example would be:   You are arrested for assault.  The officer fails to give you the MIRANDA warning and starts questioning you.  You confess to hitting the other guy.  Your attorney files a motion and gets the evidence thrown out.  However, your case probably still will not be dismissed.  Why, because the other guy or other witnesses may have identified you as the assailant.  This independent evidence can still be used at trial, even though your confession was thrown out.  Of course, getting your confession thrown out is great since the prosecution may not have a credible witness or it may be a “he said / he said” case, and your case might get dismissed.

Bottom line.  Before you speak with police officers simply ask if you are free to leave. If so, GO.  If not, STOP SPEAKING and ask to speak with an attorney.  Once you have asked for your attorney, all questioning by police must stop.

MIRANDA is a very complex, complicated, fact specific area of law.  Some evidence and even some cases can be dismissed because officers didn’t follow the law and give you the MIRANDA warning at the proper time. We at McDowell & Associates, Attorneys are experienced at using failure to give MIRANDA to help our clients fight their cases.  If you have any further questions, or would like to speak with an attorney about your case, please feel free to contact us at 213-401-2322.