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Saturday, July 18, 2015

When do I get my Miranda warnings?

A new question on a legal question board caught my attention.

My son was arrested for driving on a suspended license and taken to jail. I would like to know if he should have been read his rights before being arrested.

I haven't had a chance to answer this question before, but we see it a lot in traffic and DUI related incidents. The answer is -- did your son make a statement to the police? The "Miranda warning" (Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny) is the technical term for the "rights" you were speaking about. (Those are the rights you are speaking about -- the right to remain silent -- anything you say can and will be used against you, the right to an attorney before speaking to police, if you cannot afford an attorney one will be appointed...) A mere arrest does not require the reading of any special rights. However, if your son made a statement to the police, and the police had not warned him that a statement could be used against him, then most likely that statement can get suppressed.

The rule of thumb is this -- an arrest without interrogation = no need for special warnings. An arrest + questioning = warnings must be given, and understood, or statements can be suppressed.

Now there is an interesting exception to this that folks involved with petty theft should be aware of. We see this a lot in shoplifting cases. If you make a statement to a store detective or private investigator, no warning is necessary and suppression is not an option. This is because the constitutional protection against self-incrimination and the right to counsel only apply when you are dealing with the State. A private guard (such as a security guard, store guard or mall cop) is not a government employee, and you have no rights as to statements made to them. Rule of thumb -- no matter how bad the crime may appear, keep your mouth shut. Be polite, and courteous, but do NOT admit to anything.

If you have additional questions about criminal procedure, give us a call! We would be glad to discuss your case in more detail.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 Charles Hatley, Esq.


Bender said...

Hasn't the Supreme Court ruled that silence before right is obtruction of the investigation?

Sean Hanover said...

No -- there is nothing that requires an accused, or a person arrested, from speaking to the police. It's a dicey game, though. In petty offenses, for example DUI, cooperating with the police can have a huge impact on how the officer speaks to the prosecutor (which in turn, impacts your case). In more serious cases, though, there is nothing good that can come from saying anything to the police, detective, etc. The proper answer in anything other than a traffic stop: "I am happy to speak with you, but I need an attorney first." That is NEVER obstructing the investigation.

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