The Right to Remain Silent

The Right to Remain Silent

--Knowing the when and how of Miranda rights can keep you from losing a suspect.

By Dave Grossi

After my retirement from both operational law enforcement and Calibre Press, I taught college CJ for a few years. One of the courses I taught was Police Constitutional Law. Of course, that curriculum addressed not only 4th Amendment issues, such as use of force, but also 5th and 6th Amendment issues, such as confessions and right to counsel.

As for this column, I’m going to focus on interrogations and Miranda from two standpoints: when it’s done and how it’s done.

First, let me make one thing clear. While my second career as a private trainer and consultant has found me inside a courtroom on more than a few occasions, I’m not an attorney, and I don’t play one on TV. This piece of information is going out cop-to-cop. Please don’t construe any of this information as legal advice. (disclaimer)

Every cop knows about Miranda v. Arizona, the 1966 Supreme Court case that dealt with the admissibility of statements obtained from individuals who are subjected to interrogation while in police custody. And most “Average Joes” know about Miranda rights, thanks to the multitude of cop shows on TV these days.

There’s an old acronym we once used in the academy – I.D.I. O.T.—which stands for Idiots Do It on Television. There’s no doubt that TV has had an influence on police procedure, not just from a civilian standpoint, but for cops as well. Society, including TVpundits and jurors, expects every cop to to be a scientist, MMA champion and street corner shrink. And if cops spent as much time in academy classrooms studying Police Con Law as they do watching TV cop shows at home, my guess is the number of Supreme Court decisions dealing with police procedure would decrease by about 20%.

One of the biggest errors cops make is giving suspects their Miranda rights while simultaneously putting on the handcuffs. Not only have I seen TV cops do this, but I’ve seen real cops do it on the street. Contrary to popular belief, not all questioning by law enforcement officers needs to be preceded by a recitation of the Miranda warnings. A defendant must be “in custody” and “under interrogation” by an officer before Miranda is required.

Miranda is required only when “custodial interrogation” is taking place. I can’t tell you how many uniformed officers screwed up a detective’s subsequent planned interrogation because they mirandized an arrestee too early. Skilled investigators have a method to interrogation. Most detectives will try to build some rapport before they begin their questioning. But manytimes that door may already be closed because the patrol officer prematurely mirandized the suspect while the arrest was taking place.

Detective: “Hi, I’m Detective Grossi. Do you know why you’re here?”

Suspect: “F**k you. I want my lawyer.

Cops certainly don’t learn that at the police academy. More than likely, it came from watching someone like Det. Lupo do it on “Law and Order.” Think about it: DUI/DWI officers don’t mirandize suspected drunk drivers during the course of a T-stop. But there’s no doubt that the driver isn’t free to leave, and there’s no doubt that some questioning is taking place. The courts have held that although traffic stops are seizures for 4th Amendment purposes, they’re not custodial for 5th Amendment purposes. Before the arrest is made, the stop is governed under *Terryguidelines.

Alternatively, when there’s imminent danger to law enforcement or the pubic, officers are allowed to extinguish that threat and need not bother with Miranda. In other words asking, “Where’s the gun (or the bomb or the injured victim)?” may be perfectly acceptable in certain situations. Similarly, routine questions that are purely informational normally don’t lead to incriminating responses and usually don’t require Miranda. So there are some exceptions to when Miranda is required during custodial questionings.

So, when does “custody” occur? Of course, questioning that’s taking place in a police interrogation room willmost likely be construed as occurring while the suspect is in custody, as will the questioning of a suspect in the back seat of a police squad car in most cases. Conversely, questioning a person in their own home would normally not constitute custody. The presence of six officers standing over a suspect, though, might present what the courts have determined to be a “police-dominated atmosphere” where Miranda might be required. It’s a flexible situation that requires a good working knowledge of the Miranda decision and a little common sense.

I recall during my narc-cop days a vigorous cross-examination by a very skilled criminal defense attorney. The setting was a trial in the Criminal Division of the New York Supreme Court, and the case was a major drug bust. A year or so earlier, we had a major dealer in custody. Even though the questioning was taking place in his own house, the cuffs on his wrists and the presence of a half-dozen other narcs screamed “in custody.” When Joe Dusthead, the suspect, wouldn’t reveal the location of his substantial stash of pot, phencyclidine and methamphetamine, three uniformed cops entered the room with 20-lb. sledgehammers slung over their shoulders. Joe finally gave up the information. He had been mirandized shortly after the arrest and search warrant execution. When our team only turned up what we concluded was Joe’s personal stash, we figured he might want to share where the rest of his pharmaceuticals were. Fearing a cloud of dust from plasterboard and sheetrock filling the room, Joe told us precisely where his “business product” was located.

During direct examination, I testified that we had mirandized Joe within 10 minutes after he was taken into custody and that he eventually told us where the dope was hidden. Both the ADA and I were somewhat surprised that the defense attorney was focusing so hard on the wording of the Miranda warnings because we had a search warrant and there was no doubt the dope would have been found pursuantto that warrant, albeit in a much messier manner. Needless to say, this prominent attorney was being given a lot of leeway by His Honor over the words I used to mirandize the suspect.

My custom and practice over the years, both in uniform and plainclothes, was to run through the four warnings—“You have the right to remain silent, blah, blah, blah, etc.” (See sidebar p. 27). I would then ask the question, “Do you understand these rights?” Well, it seemed that Joe’s learned counsel was really upset that I didn’t ask the “do-you-understand?” question after each and every sentence rather than at the end of the entire warning. It turned out to be a moot point because the jury convicted Joe and the judge sent him to prison for the better part of his life. Still, the issue generated quite a bit of dialogue between the ADA and our task force team afterward. The drug ADA told us that he had no problem with how we advised our arrestees of their Miranda rights during questioning.

Years later, several court decisions came down the pike that addressed the issue of how the warnings should be given. Your local ADAs can give you the cites for those cases. The bottom line: The Supreme Court has held that as long as the four specific warnings are given, the order in which they are given is irrelevant. It also doesn’t make any difference if you ask the “do you understand?” question after each warning or at the end as long as the waiver was obtained voluntarily and knowingly.

Law enforcement agencies should check with their local prosecutors regarding the language they want used during the recitation of the standard Miranda warnings. This is particularly important when there are several agencies situated within a single county; it’s a good idea to ensure that everyone is working from the same sheet of music when they sing “Miranda.” For all intents and purposes, the real issues are these: 1) There must be both “custody” and “interrogation” for Miranda to apply and 2) any confessions you get must be obtained knowingly and voluntarilyand only after the four warnings have been given, are understood and waived.

Oh, by the way, unless your jurisdiction requires it, there’s no mandate that the defendant sign away [his/her] rights. A simple verbal acknowledgement to the waiver is all that the Miranda decision requires.

Author’s Note: The author would like to thank Doug Mitchell, a Washinton-based attorney, deputy county prosecutor and reserve deputy sheriff for his help in reviewing this article.

Dave Grossi is retired police lieutenant from upstate New York now residing in southwest Florida. A member of the Force Science Research Center, he is a combat veteran of Vietnam and a credentialed force trainer.

From Law Officer: Tactics/Technology/Training, September 2011