Must the Police Read You Your Rights?

"You have the right to remain silent..."

Upon a formal arrest, police officers generally read what is known as the Miranda warning to arrestees, informing them of their right to remain silent, their right to counsel, and their right to appointed counsel if they are unable to afford their own lawyer.  One of the most commonly misunderstood aspects of criminal law, many citizens believe that police must read this warning, and/or that a failure on their part to do so should result in a dismissal of their case. 

First, it is important to understand when Miranda warnings are even required.  Miranda warnings are required to be given before custodial interrogation may take place.  Custodial Interrogation has two parts:  (1) custody, and (2) interrogation. 

CUSTODY
A person is deemed to be "seized" and Fourth Amendment protections are invoked where a reasonable person in the suspect's shoes would not feel free to leave or terminate the encounter with police.  Being "In Custody" for Miranda purposes requires more: a person must be under formal arrest or have their freedom deprived to the extent of that associated with formal arrest.  In other words, though a person who has just been pulled over by police, or ordered to "freeze" is seized under Fourth Amendment analysis because a reasonable person in their position would not feel free to leave, they are not deemed to be "in custody" for purposes of requiring a Miranda warning.  Being handcuffed and placed in the back of a police car, on the other hand, does count as being "in custody." 

INTERROGATION
The second prerequisite to a requirement of Miranda warnings, "Interrogation" is deemed to occur when police actions or questioning are "reasonably likely to elicit an incriminating response."  When a person is both in custody and subject to interrogation, they must first be read their Miranda rights.  If, upon a reading of these rights, a person invokes their right to remain silent, questioning must cease unless re-initiated by the suspect.  It is important to note that not all conversations between police and a suspect in custody will qualify as "interrogation" and if the suspect makes voluntary statements while in custody, those statements may be used against the suspect even in cases where no Miranda warnings were given. 

WHAT HAPPENS IF POLICE DO NOT READ A SUSPECT THEIR RIGHTS?
Of course if there is no custodial interrogation, and police fail to read a suspect their Miranda rights, nothing happens, as there has not been a Miranda violation.  Similarly, if Miranda warnings are read to a suspect, and the suspect makes no statements, there is not much to analyze with regards to the admissibility of statements.  On the other hand, if a suspect is subject to custodial interrogation, but police fail to read a suspect their rights, any statement obtained during such custodial interrogation will be inadmissible in court as evidence against the suspect in the government's case in chief.  Unfortunately, this exclusionary rule is limited in that statements obtained in violation of Miranda may still be used as impeachment if a defendant takes the stand at his/her trial.  Additionally, derivative evidence obtained as a result of a Miranda violation may also be used against a defendant for any purpose (more below).  In short, statements obtained during custodial interrogation may only be admitted in the government's case in chief if Miranda warnings were properly read.  This does not mean that the government cannot obtain statements outside of the situations where Miranda warnings are triggered, or rely on evidence other than statements made during custodial interrogation to still prosecute.

RIGHT TO COUNSEL
The US Constitution has two distinct guarantees of a right to counsel, (1) the Fifth Amendment right to counsel, and (2) the Sixth Amendment right to counsel.  The Fifth Amendment right to counsel goes hand in hand with the right against self-incrimination and is implicated when a suspect is being questioned.  If a suspect is read their Miranda warnings and requests a lawyer, the questioning must stop, or will violate the suspect's rights.  The Sixth Amendment right to counsel is only implicated after a defendant has been charged with a crime.  Once a person has been criminally charged, they have a right to have their attorney present for all questioning regarding the case for which they have been charged, but not for questioning about other possible crimes still being investigated.

FRUIT OF THE POISONOUS TREE DOCTRINE
In addition to the exclusionary rule that requires suppression of evidence directly obtained in violation of a suspect or defendant's Fourth, Fifth, or Sixth Amendment rights, some derivative evidence must also be excluded if it is deemed to be "fruit" of an action that violates a person's rights.  For example, if police conduct an unlawful search of a person and find a hotel key in his/her pocket, then use the hotel key to enter a hotel room and find evidence of a crime, the subsequent search of the hotel room will be invalidated as "fruit of the poisonous tree" even if there were otherwise lawful grounds for police to search the room.

INVOLUNTARY STATEMENTS IN VIOLATION OF THE FIFTH AMENDMENT
A concept that is often misunderstood even by experienced criminal defense attorneys is that a violation of Miranda is not the only way (and not even the best way) to get a defendant's statements thrown out.  A suspect's statements to police which are deemed involuntary, regardless of whether Miranda warnings were required or read, can be thrown out for all purposes.  This means that even if a defendant takes the stand, the prosecution will not be able to use a statement against a defendant, and derivative evidence that is the "fruit" of an involuntary statement must also be suppressed.  What may seem like a minor distinction can have huge implications in your case.  This is why it is vital to have the best representation you can when dealing with criminal charges.  The prosecution and the court will not go out of their way to protect your rights, and it is on your defense to ensure your rights are properly asserted and fought for.

Many people misunderstand the concept of Miranda warnings, and one of the most common questions criminal defense attorneys get is something to the effect of "the police didn't read me my rights; does that mean my case gets thrown out?"  Unfortunately, the exclusion of evidence based on a failure of police to read a suspect their Miranda rights is rather limited. 

If you or a loved one has been arrested, charged with a crime, and has questions relating to the arrest procedures that took place, contact the Law Offices of Nicholas Loncar now for a FREE CONSULTATION  213-375-3775.

More about the Right to Remain Silent
More about Police Misconduct

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
[email protected]
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

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