Miranda Invocation [Archive] - Glock Talk

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i8547
08-05-2011, 11:37
Has anyone ever had someone invoke Miranda (e.g. "I'm not answering your questions without a lawyer") right as you began to read them their Miranda rights?

If so, what did you do. Had a somewhat interesting situation last night where two of our guys were interviewing someone and about to read Miranda, when the subject said the above. In result of it, they didn't finish reading him Miranda and just stopped the interview. They were apparently caught off guard by the guy not waiting until they were done and overlooked they had never actually read the rights. I personally think this was a tactic the guy purposely used to avoid being Mirandized, banking on the inexperience of the two and am curious to know if anyone else has experienced something along those lines.

golls17
08-05-2011, 11:41
Just keep reading.

cowboywannabe
08-05-2011, 11:43
Just keep reading.

this.

Sam Spade
08-05-2011, 11:45
As soon as they use the L-word, you're done. Right to counsel can be invoked at any time, and it applies even if you haven't read him the notification that he has a right to counsel.

collim1
08-05-2011, 12:06
As soon as they use the L-word, you're done. Right to counsel can be invoked at any time, and it applies even if you haven't read him the notification that he has a right to counsel.


I go by this.

I work patrol for a municipal dept, so 99% of what I do is misdemeanors that I witnessed. I rarely need a confession to have cause for an arrest.

i8547
08-05-2011, 12:10
Just keep reading.

This is the correct move, but has anyone ever had this done to them as a means to make statements inadmissible?

OXCOPS
08-05-2011, 12:14
I've seen it tried, but it didn't work. Of course, this was in a very conservative court where the judge didn't tolerate these antics. He saw something like this as being along the same lines of "ticket isn't legal cause he wasn't wearing his hat".

MeefZah
08-05-2011, 12:55
This is the correct move, but has anyone ever had this done to them as a means to make statements inadmissible?

No, because once they invoke, they generally don't say anything more that would be considered to be a statement, or incriminating; so it's kind of a non-issue.

Lack of reading Miranda by itself is not the issue. Lack of reading Miranda and then proceeding with custodial interrogation is.

teleblaster
08-05-2011, 12:57
This is the correct move, but has anyone ever had this done to them as a means to make statements inadmissible?

If the person is in custody and has invoked right to counsel, if you keep asking questions, the answers will be inadmissible. But it is pretty rare that someone would then keep answering questions after invoking, or that you would keep asking questions. He invokes, you stop questioning unless he initiates further contact.

merlynusn
08-05-2011, 13:27
Once I start reading Miranda and he invokes, I stop and the interrogation is terminated. He is in custody and I've begun the interrogation. Miranda is just the first step in the interrogation before I get to the other questions. Once he invokes, game over.

What would be the point in continuing to read the Miranda Rights form after he has invoked? It is an unequivocal declaration that he wants a lawyer before answering any questions.

ETA: Your Miranda Rights don't attach once the form is completely read to the suspect. They attach once a custodial interrogation begins. Therefore, if you are still reading the Miranda Rights to him and he invokes, then he has invoked his right to counsel.

cowboywannabe
08-05-2011, 13:29
i agree, and interviews or interogations will not follow. but the fact is that schiet bag interupted me and i will GD finish what i started.....LOL. oh, and he doesnt have to answer "do you understand these rights"?

ateamer
08-05-2011, 14:25
If he invokes, then stop reading Miranda and don't ask any questions. You don't have to put him right into a holding cell or transport immediately, though. Just sit there for a couple minutes without saying anything. Pretty good chance that he'll start to talk on his own and give you something useful without you saying a word.

txleapd
08-05-2011, 14:32
this.

Yep. Just keep finish reading them their rights.

On a side note, I've had people in an interview room who lawyered up as soon as I asked them their name (even though I know who they are). I still read them their rights. Then I just give them one of my business cards, the case number, and tell them what they're going to be charged.

Have a nice day.

Dragoon44
08-05-2011, 14:55
Only once did I have a guy refuse to talk. He wouldn't with or without a lawyer, in his case though we had more than enough eyewitness testimony and evidence to send him to prison.

I always took the salesman approach to interrogations, ( just don't tell them what you are selling is prison cells) Before ever reading them their rights I would tell them we were going to do a formal interview and this was their opportunity to tell their side of the story and get it on record.

BL33D 4 M3
08-05-2011, 15:14
If he invokes, then stop reading Miranda and don't ask any questions. You don't have to put him right into a holding cell or transport immediately, though. Just sit there for a couple minutes without saying anything. Pretty good chance that he'll start to talk on his own and give you something useful without you saying a word.

This is good. Also wait for him to ask a question. Reply by saying you want to have a conversation, but you can't because he invoked. He is desperate to learn what you know. Exploit this.

Trigger Finger
08-05-2011, 15:37
Once I start reading Miranda and he invokes, I stop and the interrogation is terminated. He is in custody and I've begun the interrogation. Miranda is just the first step in the interrogation before I get to the other questions. Once he invokes, game over.

What would be the point in continuing to read the Miranda Rights form after he has invoked? It is an unequivocal declaration that he wants a lawyer before answering any questions.

ETA: Your Miranda Rights don't attach once the form is completely read to the suspect. They attach once a custodial interrogation begins. Therefore, if you are still reading the Miranda Rights to him and he invokes, then he has invoked his right to counsel.

I have always gone by this. Granted, we did not do allot of interrogation on the Surveillance Unit but I was a detective long before that.

I might add custodial accusatory questioning. And In that case we were advised by the LADA NOT to ask him if he would talk to the interviewer without an attorney. That can be asked later, but once asked then invoked a lawyer has to be there for him from then on. If your opinion is that he wanted an attorney for everything from then on then move on without questioning him!

Taykaim
08-05-2011, 16:12
I've seen it tried, but it didn't work. Of course, this was in a very conservative court where the judge didn't tolerate these antics. He saw something like this as being along the same lines of "ticket isn't legal cause he wasn't wearing his hat".


So, not meant to thread hijack, but I see these "not valid due to not wearing hat" comments all the time. What does this mean? The inference seems to be that if a patrol officer isn't wearing his hat he isn't "fully" in uniform and thus LE related work is not fully valid or some such.

Is this bull**** for real?

I am all for controls on police behavior that are meant to enhance the safety of them and those they come in contact with, as well as controls meant to preserve those rights guaranteed in the constitution.

But a fricking hat? Really? I'd be pissed as hell if I knew someone who was a genuine threat on the roads got off due to this.

And to be clear, I'm not heavily in the anti or pro cop crowd.

If I felt a traffic citation or arrest was in the wrong I'd fight it with everything I had to get that dropped. And whether by luck or just making choices that don't include actions that bring me into contact with police in their professional capacity, I lead a life that does not include frequent police interaction.

ray9898
08-05-2011, 16:21
You stop reading and end the interview. They have invoked their right to counsel so there is no reason to read a Miranda warning to advise them of a right they have already invoked.

ray9898
08-05-2011, 16:23
So, not meant to thread hijack, but I see these "not valid due to not wearing hat" comments all the time. What does this mean? The inference seems to be that if a patrol officer isn't wearing his hat he isn't "fully" in uniform and thus LE related work is not fully valid or some such.

Is this bull**** for real?



According to some internet 'lawyers' it is.

OLY-M4gery
08-05-2011, 16:28
As soon as they use the L-word, you're done. Right to counsel can be invoked at any time, and it applies even if you haven't read him the notification that he has a right to counsel.

This is the correct answer.

collim1
08-05-2011, 16:36
According to some internet 'lawyers' it is.

A feeble attempt to discredit the officer when there is nothing else to go with. If a attorney knows it is the dept's SOP to wear cover when outdoors and the officer wasn't wearing his cover he will argue the officer was not following directives.

Heard bout it, never really seen it first hand. Its more of a inside joke around here.

Sharkey
08-05-2011, 16:57
Geez, where the heck are you'll policing? Once they lawyer up, my partner blind sides them up the head with a phone book. They usually change their mind after that. :tongueout:


Only read Miranda a couple times on patrol and my CID days were spent with the D.A. and we didn't have that issue. if you have the evidence and testimony, no worries, cuff him up and send him to book in.

I would stop reading, explain how he blew his chance to explain, and tell him how the prosecutor will break it off at trial.

CAcop
08-05-2011, 17:18
Once people invoke either silence or lawyer I stop and take them to jail. What would finishing the Miranda warnings do? They clearly already know their rights by invoking them. If anyone comes back in later they should read my report and notice they invoked one or bothe rights and plan accordingly. If they don't read my report before requestioning they better have a standard practice of re-Mirandizing anyway.

i8547
08-05-2011, 18:37
Seeing as to how we have different opinions amongst the members here on stopping vs. continuing to read Miranda is exactly the reason I posted this.

Just to give a bit more backstory, I work on a plain clothes human intelligence unit. Last night me and my partner rolled out to interview a guy that had been arrested earlier in the evening with burglary tools along the border. We suspected he was involved in bandit activity.

After he was processed it was determined that he was an aggravated felon (full gambit of rapes, controlled substance possession, CS w/ intent to distribute, burglary) who had a previous deportation. Based on this, our prosecutions unit was going to set him up for criminal prosecution for re-entering after deportation.

The two uniforms who were processing him initiated the casework and began to get a sworn statement from him on videotape. The first question they asked, as per our agency policy, before reading Miranda was "Are you under the influence of any mind altering substances, drugs, or alcohol?"

As soon as he was asked this, he said "I'm not answering any questions without a lawyer present." They stated "Subject has invoked his right to counsel at XXXX hours..." and stopped the tape and ended the interview.

The end result was two-fold: 1) Prosecutions is saying "Oh, no! We can't go on him now because he was never read Miranda" and then 2) The AUSA is saying "No, it's fine because no questioning relating to the charged crime had been asked."

I'm of the belief that Miranda should have still been read, but in reality it did not matter because no questioning commenced. Some are saying though that he still *MUST* be read Miranda regardless simply so that he "knows his rights."

Also, judging by the guys visits to various "temporary vacation institutions" around the country, I think his invoking prior to Miranda fully being read was intentional so that anything he said (purposely or accidentally) at a later time could not be used against him.

Unfortunately (as it was brought up in another post of mine a few weeks ago), our "units" are very segregated from our patrol/uniformed guys. So we are not always on the same page and it is very likely and possible that someone in custody can be interviewed/questioned by three separate entities after their initial arrest unbeknownst to each entity.

PinkoCommie
08-05-2011, 18:57
Miranda only matters if there is testimonial evidence. If no questions were asked, and no answers resulted, the fact that the suspect was not provided with a Miranda warning is immaterial. Miranda is not an absolute requirement. In order for Miranda to matter you must not only have custody, but also interrogation. Since the suspect invoked his right to have counsel present during questioning, and patrol guys did the right thing and ceased questioning, it does not matter if the suspect was read the Miranda warning, "Goodnight Moon" or the latest thread from GNG.

This might, of course, be different based on state statute, state constitution or state case law. As a matter of fourth amendment jurisprudence, it does not matter whether you continue to read the warning or stop. What matters is that you do not ask any questions that might be construed as "interrogation" within the Miranda framework (i.e. it would still be OK to ask the suspect if he would like to have a cup of water, and if he ended up spilling his guts because you were so kind as to ask if he wanted water the statements would be perfectly admissible).

Sharky7
08-05-2011, 19:11
If you PM me your email address, I can forward you over a real good 4 page law review on Miranda issues I just got a few weeks back. Covers both the 5th and 6th amendment portion of Miranda and a lot of "what if's"......It's a good read!

Also- I am hesitant to put too much on here....any wackjobs from the other subforums may stumble on it.

Sam Spade
08-05-2011, 19:23
The end result was two-fold: 1) Prosecutions is saying "Oh, no! We can't go on him now because he was never read Miranda" and then 2) The AUSA is saying "No, it's fine because no questioning relating to the charged crime had been asked."

I'm of the belief that Miranda should have still been read, but in reality it did not matter because no questioning commenced. Some are saying though that he still *MUST* be read Miranda regardless simply so that he "knows his rights."


Prosecutions is wrong, as are the "some are saying" crew.

The people who've been jailed, prosecuted and imprisoned without ever have been read Miranda are legion. As said above, Miranda only applies if you're conducting an in-custody interrogation. Even if he doesn't know his rights, so what? You aren't asking him any questions to incriminate him, and his 6th Amendment right to counsel will be taken care of upon appearance. Same deal if he demands a lawyer---are you going to go get him one? Of course not; you're just not going to question him.

And if he invokes without Miranda, excited utterances and unsolicited statements are in.
******: "What am I being charged with?"
Cop: "Pre-meditated murder."
******: "I didn't mean to kill him."

Sounds like a confession to me, wholly admissible even if he had demanded a lawyer...because it wasn't an interrogation and protections against self-incrimination don't kick in.

OLY-M4gery
08-05-2011, 21:22
I read your response, I'm not sure what the DA or AUSA mean.

You don't need to read people their Rights as a public service.

You read people their Rights when they are in custody, and you are about to interogate them. In this case, when he invoked his Right to Counsel, that ended the interogation. No interogation no need to continue with reading Rights.

If I read your response correctly your DA is an idiot, and you should listen to the AUSA.

i8547
08-05-2011, 21:34
If you PM me your email address, I can forward you over a real good 4 page law review on Miranda issues I just got a few weeks back. Covers both the 5th and 6th amendment portion of Miranda and a lot of "what if's"......It's a good read!

Also- I am hesitant to put too much on here....any wackjobs from the other subforums may stumble on it.

PM Sent.

ALCON-

The particular AUSA is on the ball. The problem in my particular agency is you have too many people, supervisors specifically, who think they are lawyers or legal scholars. Very few stay up on case law let alone know what case law even is, sadly. When trying to argue with (correct) them, they simply do the "see these bars... I'm right" deal.

opelwasp
08-05-2011, 23:22
I can't count how many POS's I've arrested without giving a Miranda warning to. I didn't need to. Either I saw them do it or it was a felony that there was enough PC to believe they committed it.

I had a guy all giddy as hell cause he thought he was going to get off cause I didn't read him his rights. I told him I didn't need to and why. I told him, "Enjoy your stay." He was not amused.

I always like to try to get spontaneous statements when I can, they think we can't use them for some reason. It's always fun when they try to argue that I didn't read him his right when he said , such and such. When it comes out that they were never questioned and they fell on their own sword by themselves, I get happy thoughts. If DB has diarrhea of the mouth, let him finish, it just makes my job easier.

slama683
08-05-2011, 23:44
Having a feeling about our judges, I would say once someone invokes in anyway, then the conversation stops and the processing begins.

scottydl
08-06-2011, 00:44
I read your response, I'm not sure what the DA or AUSA mean.

DA = District Attorney, i.e. the local prosecutor's office
AUSA = Assistant U.S. Attorney, i.e. the federal prosecutor's office

In most jurisdictions, the two rarely agree and often have different opinions on how things should be legally and procedurally done from a law enforcement standpoint.

OLY-M4gery
08-06-2011, 00:46
DA = District Attorney, i.e. the local prosecutor's office
AUSA = Assistant U.S. Attorney, i.e. the federal prosecutor's office

In most jurisdictions, the two rarely agree and often have different opinions on how things should be legally and procedurally done from a law enforcement standpoint.

Thanx, I knew that, I meant I wasn't sure what their responses meant.

steveksux
08-06-2011, 09:02
Also, judging by the guys visits to various "temporary vacation institutions" around the country, I think his invoking prior to Miranda fully being read was intentional so that anything he said (purposely or accidentally) at a later time could not be used against him. .This is what I was going to suggest. Just in case he gets stupid or gets tricked into saying something later, he can get it thrown out, at least that's his plan.

If you cannot afford an attorney, one will be provided for you, but they're not very good, and anything they say will probably end up being used against you in court of law too... :)

Randy

DaBigBR
08-06-2011, 20:01
Wow...

I can't believe Miranda is still this difficult. I'm completely with Sam Spade and the others on this that say that he can invoke at any time and once he does so, there is ABSOLUTELY NO NEED to read the advisory, finish the advisory, or anything. That's it. Rights unequivocally and affirmatively invoked. There can no longer be any custodial interrogation, so whether they "know their rights" (by having them read to them), it does not matter. You can read them, and they can decide, after hearing them, to talk, and YOU STILL CAN'T DO IT!

And I think you would be fine with the under the influence question even if it was potentially related to your charge as a booking information exception.

merlynusn
08-07-2011, 11:06
I don't understand the why there is this much of a difference either.

Dexters
08-07-2011, 11:33
Slightly different question.
You are not arresting a person but just investigating a crime.
You ask a citizen and show your ID and say "I'm investigating X, may I ask you a few questions?"
Citizen says "I really don't want to talk with you." (not mentioning the "L" word.) or "I don't want to be bothered (involved)."
Is there a law preventing the officer from continuing to press the questions?

scottydl
08-07-2011, 11:41
Slightly different question.
You are not arresting a person but just investigating a crime.
You ask a citizen and show your ID and say "I'm investigating X, may I ask you a few questions?"
Citizen says "I really don't want to talk with you." (not mentioning the "L" word.) or "I don't want to be bothered (involved)."
Is there a law preventing the officer from continuing to press the questions?

That's called a Terry Stop (from the Supreme Court case Terry v. Ohio). The required "burden of proof" is less than that required for an arrest, reasonable suspicion instead of probable cause. If an officer reasonably suspects that a person may be part of criminal activity, the person can be stopped and ID'd. They don't necessarily have to answer any specific questions and Miranda doesn't apply since they are not legally "in custody" but the officer can hold them as long as it takes to verify their identification. So no, you don't have to say anything but that means you probably won't be going anywhere soon. There's more to it, but that's the nuts and bolts.

larry_minn
08-07-2011, 11:51
Minor thread hijack/question. If a person is being questioned can they request audio tape copy of questioning? My "concern" is being a suspect and the Officer remembering what he wants instead of what is said.

MeefZah
08-07-2011, 12:41
Minor thread hijack/question. If a person is being questioned can they request audio tape copy of questioning? My "concern" is being a suspect and the Officer remembering what he wants instead of what is said.

If the person is ultimately charged his attorney can request it in discovery; if the person is not charged and the investigation is not considered to be "ongoing" then a public records request would most likely cover the audio.

Obviously this will vary some state-to-state, and the public records thing hinges on the investigation being closed / finished.

MB-G26
08-07-2011, 14:44
I always took the salesman approach to interrogations, ( just don't tell them what you are selling is prison cells) Before ever reading them their rights I would tell them we were going to do a formal interview and this was their opportunity to tell their side of the story and get it on record.

Just a light note (vs. pooping on the thread) I guess I would fail BG101 because I would SO fall for this - :embarassed: (And I'll guess that Sam would agree *snarfle* )