Breaking News...FAR right wing Supreme Court strikes down Miranda rights 5-4

[Tech_Esq]

So, it seems to me that you can detain me, for your "investigation," for as long as I allow you to detain me. If, however, I say that I'm not going to sit here anymore, I'm leaving, you must either arrest me, or let me go. Otherwise, the state has no authority to just "hold me" without probable cause. That's what makes it an "illegal detention."

OK - now I think I see. There is a thing called a "Terry stop," which gives officers the right to detain people to investigate a possible crime short of probable cause to arrest. A suspect held during a Terry stop is NOT free to go, even though he is not under arrest. Consensual interviews, on the other hand, can be terminated at any time by the suspect.

I suspect you are presupposing a consensual encounter with the police to begin with in the example you give. That's fine - but if the police are detaining you involuntarily because they have probable cause to think you may be involved in a crime (an "investigative detention" as per the Terry case), then they most certainly DO have the authority to hold you (i.e., detain you) short of probable cause to arrest.

But keep in mind - there has to be SOME probable cause for a Terry stop to take place. It is not as much as that required for arrest, but there still has to be something.

Ah, yes. That's precisely where I was going. So, let's look at Terry. Mr. Chief Justice Warren wrote for the court:

The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person, and between a "frisk" and a "search" is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation.

Now all Terry says (it's good to actually read it every 20 years or so), is that the police, having a "reasonable articulable suspicion" that a crime is being committed or about to be committed, may make a stop. It is also permissible for the police consequent to that stop to make a brief search for any weapons secreted on the person of the person being stopped for the sake of public safety and safety of the officer. (Remember in Terry the officer found revolvers on two of the subjects).

Other cases have added additional gloss to Terry. You must answer when asked your name for identification, for instance. However, I think the point I'm trying to get to is, under Terry, you don't have hours to do your investigation. This is "stop and frisk" not, as Chief Justice Warren said, "a full blown search." So, at some point, after the officer stops me for his "reasonable articulable suspicion" (less than probable cause) and after he asks me my name and makes sure I'm not carrying weapons with a quick frisk, we move out of the Terry stop and into something else.

My contention is that "something else" is consensual detention. Not that the police will let you know that. You were stopped legitimately. A Terry search reveals no reason for additional "arrest procedures" but the police want to "investigate" further. It's this time period I'm talking about.

 

[RadiomanATL]

They had the guy in the room for hours and he refused to talk. If the cops didn't realize he was using his right to remain silent then they're fucking morons who shouldn't be on the force.

They were looking for a loophole to continue grilling the guy and now they have one.

Who wants to bet they'll conveniently forget to tell suspects they have to assert their right to remain silent?

Incorrect.

He said things. He did not engage fully in a conversation, but he did NOT remain silent. Saying "yes", "no", "I don't know" etc. is not staying silent.

 

[George Costanza]

So, it seems to me that you can detain me, for your "investigation," for as long as I allow you to detain me. If, however, I say that I'm not going to sit here anymore, I'm leaving, you must either arrest me, or let me go. Otherwise, the state has no authority to just "hold me" without probable cause. That's what makes it an "illegal detention."

OK - now I think I see. There is a thing called a "Terry stop," which gives officers the right to detain people to investigate a possible crime short of probable cause to arrest. A suspect held during a Terry stop is NOT free to go, even though he is not under arrest. Consensual interviews, on the other hand, can be terminated at any time by the suspect.

I suspect you are presupposing a consensual encounter with the police to begin with in the example you give. That's fine - but if the police are detaining you involuntarily because they have probable cause to think you may be involved in a crime (an "investigative detention" as per the Terry case), then they most certainly DO have the authority to hold you (i.e., detain you) short of probable cause to arrest.

But keep in mind - there has to be SOME probable cause for a Terry stop to take place. It is not as much as that required for arrest, but there still has to be something.

Ah, yes. That's precisely where I was going. So, let's look at Terry. Mr. Chief Justice Warren wrote for the court:

The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person, and between a "frisk" and a "search" is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation.

Now all Terry says (it's good to actually read it every 20 years or so), is that the police, having a "reasonable articulable suspicion" that a crime is being committed or about to be committed, may make a stop. It is also permissible for the police consequent to that stop to make a brief search for any weapons secreted on the person of the person being stopped for the sake of public safety and safety of the officer. (Remember in Terry the officer found revolvers on two of the subjects).

Other cases have added additional gloss to Terry. You must answer when asked your name for identification, for instance. However, I think the point I'm trying to get to is, under Terry, you don't have hours to do your investigation. This is "stop and frisk" not, as Chief Justice Warren said, "a full blown search." So, at some point, after the officer stops me for his "reasonable articulable suspicion" (less than probable cause) and after he asks me my name and makes sure I'm not carrying weapons with a quick frisk, we move out of the Terry stop and into something else.

My contention is that "something else" is consensual detention. Not that the police will let you know that. You were stopped legitimately. A Terry search reveals no reason for additional "arrest procedures" but the police want to "investigate" further. It's this time period I'm talking about.

Correct. A Terry stop cannot last for three hours. Then it becomes unreasonable. This issue comes up in auto stops quite often. Cops stop a car and think they smell grass. They call for "Vito," the drug sniffing dog. But it takes Vito an hour and a half to get there. In the meantime, the suspects are cooling it on the curb or in the back of the squad car.

But again, that's a different issue from the original point about detention short of arrest. Set my mind at ease, so we can explore other points - you do agree that police may legally detain someone without formally arresting them, right?

 

[Tech_Esq]

OK - now I think I see. There is a thing called a "Terry stop," which gives officers the right to detain people to investigate a possible crime short of probable cause to arrest. A suspect held during a Terry stop is NOT free to go, even though he is not under arrest. Consensual interviews, on the other hand, can be terminated at any time by the suspect.

I suspect you are presupposing a consensual encounter with the police to begin with in the example you give. That's fine - but if the police are detaining you involuntarily because they have probable cause to think you may be involved in a crime (an "investigative detention" as per the Terry case), then they most certainly DO have the authority to hold you (i.e., detain you) short of probable cause to arrest.

But keep in mind - there has to be SOME probable cause for a Terry stop to take place. It is not as much as that required for arrest, but there still has to be something.

Ah, yes. That's precisely where I was going. So, let's look at Terry. Mr. Chief Justice Warren wrote for the court:

The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person, and between a "frisk" and a "search" is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation.

Now all Terry says (it's good to actually read it every 20 years or so), is that the police, having a "reasonable articulable suspicion" that a crime is being committed or about to be committed, may make a stop. It is also permissible for the police consequent to that stop to make a brief search for any weapons secreted on the person of the person being stopped for the sake of public safety and safety of the officer. (Remember in Terry the officer found revolvers on two of the subjects).

Other cases have added additional gloss to Terry. You must answer when asked your name for identification, for instance. However, I think the point I'm trying to get to is, under Terry, you don't have hours to do your investigation. This is "stop and frisk" not, as Chief Justice Warren said, "a full blown search." So, at some point, after the officer stops me for his "reasonable articulable suspicion" (less than probable cause) and after he asks me my name and makes sure I'm not carrying weapons with a quick frisk, we move out of the Terry stop and into something else.

My contention is that "something else" is consensual detention. Not that the police will let you know that. You were stopped legitimately. A Terry search reveals no reason for additional "arrest procedures" but the police want to "investigate" further. It's this time period I'm talking about.

Correct. A Terry stop cannot last for three hours. Then it becomes unreasonable. This issue comes up in auto stops quite often. Cops stop a car and think they smell grass. They call for "Vito," the drug sniffing dog. But it takes Vito an hour and a half to get there. In the meantime, the suspects are cooling it on the curb or in the back of the squad car.

But again, that's a different issue from the original point about detention short of arrest. Set my mind at ease, so we can explore other points - you do agree that police may legally detain someone without formally arresting them, right?

I think it's clear from Terry that the police have the right to do some limited seizure of the body without violating the 4th amendment, if they play by the rules set out and it isn't very long and they don't take you anywhere or otherwise violate you rights under the 4th and 5th Amendments.

It appears to me that their ability to "detain" is quite limited and I would be hesitant to read into it a broad construction.

 

[Gunny]

True, but if you aren't under arrest, you can always leave whenever you want to. You just ask the magic words, "Am I under arrest now?" If they say no, you say, "Then this interview is over, goodbye." Works sometimes, not others. But it does force their hand. They have to either arrest you at that point or let you go. You have to judge which they will do.

You can be detained without being under arrest, it is better to ask if you are being detained, and leave if they do not answer affirmatively. That "Am I under arrest" stuff only works on TV.

Incorrect. Legally, they have to show their hand at that point. Arrest you or let you go.

 

[lawbuff]

The defintion of "arrest" is not an academic one, but as we read in Terry itself:

"We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in traditional terminology".

Having taken Criminal law as my Major in College, and from Ohio, Terry was one of the first cases we studied, it was a Cleveland case.

There is no bright line time frame to conclude an investigatory stop, either of a pedestrian or an automobile.

I am at the library and do not have my notes, but there was one SC case directly on point that ruled 15 minutes was NOT an excessive detention.

I do remember reading one case where a person was detained in the airport for about 2 1/2 hours, it was a SC case, and they ruled given the set of facts present, it was a justifiable detention.

I have read the appeals court decision of Terry at the law library, before the OSC ruled on it. The court goes into deep detail was is considered a detention vs. an arrest.

There is case law from the 6th Circuit which states if a person is placed in the back of a patrol car, they are under arrest. Now, I can not specifically remember right now if it distinguished between a safety v. non safety reason?

There was one case I do remember from the US SC that when an investigatory stop is prolonged, then it indeed becomes an arrest.

Ohio's Constitution forbids detaing a person any longer than is necessary to conclude the original purpose of the stop, unless specific and or articulable facts support it, this does NOT mean detaining a person for an hour to bring in a drug dog.

If they smell MJ, the automobile exception permits a search of the passenger compartment, but not the trunk.

 

[George Costanza]

The defintion of "arrest" is not an academic one, but as we read in Terry itself:

"We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in traditional terminology".

Having taken Criminal law as my Major in College, and from Ohio, Terry was one of the first cases we studied, it was a Cleveland case.

There is no bright line time frame to conclude an investigatory stop, either of a pedestrian or an automobile.

I am at the library and do not have my notes, but there was one SC case directly on point that ruled 15 minutes was NOT an excessive detention.

I do remember reading one case where a person was detained in the airport for about 2 1/2 hours, it was a SC case, and they ruled given the set of facts present, it was a justifiable detention.

I have read the appeals court decision of Terry at the law library, before the OSC ruled on it. The court goes into deep detail was is considered a detention vs. an arrest.

There is case law from the 6th Circuit which states if a person is placed in the back of a patrol car, they are under arrest. Now, I can not specifically remember right now if it distinguished between a safety v. non safety reason?

There was one case I do remember from the US SC that when an investigatory stop is prolonged, then it indeed becomes an arrest.

Ohio's Constitution forbids detaing a person any longer than is necessary to conclude the original purpose of the stop, unless specific and or articulable facts support it, this does NOT mean detaining a person for an hour to bring in a drug dog.

If they smell MJ, the automobile exception permits a search of the passenger compartment, but not the trunk.

I think we are parsing a term here. An illegally lengthy detention is just that - an illegally lengthy detention. An arrest is a formal status, arrived at when, and only when, the officer orally notifies the suspect that he is under arrest.

Illegally prolonged or otherwise illegal detentions may sometimes be referred to as the functional equivalent of a formal arrest, but they are not, technically, arrests.

Putting a person in the back of a patrol car, with nothing more, is a detention only - not an arrest. Of course, if the person has been arrested prior to placing him in the back of the patrol car, then the issue of the effect of placing him in the car is moot.

 

[George Costanza]

True, but if you aren't under arrest, you can always leave whenever you want to. You just ask the magic words, "Am I under arrest now?" If they say no, you say, "Then this interview is over, goodbye." Works sometimes, not others. But it does force their hand. They have to either arrest you at that point or let you go. You have to judge which they will do.

You can be detained without being under arrest, it is better to ask if you are being detained, and leave if they do not answer affirmatively. That "Am I under arrest" stuff only works on TV.

Incorrect. Legally, they have to show their hand at that point. Arrest you or let you go.

Not quite. Police have the right to detain short of making a formal arrest. As Tech and I are discussing, they have to play by certain rules (the Terry case) - but you can be detained without being formally arrested. During this pre-arrest detention, you are not free to leave. You are entitled to a Miranda warning during any detention.

It IS a good idea to ask, "am I being detained"? because if they say no, they you are free to leave and if they say yes, then they have to Mirandize you before using anything you say against you, and police often neglect to give a Miranda warning during an initial detention.

 

[Tech_Esq]

The defintion of "arrest" is not an academic one, but as we read in Terry itself:

"We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in traditional terminology".

Having taken Criminal law as my Major in College, and from Ohio, Terry was one of the first cases we studied, it was a Cleveland case.

There is no bright line time frame to conclude an investigatory stop, either of a pedestrian or an automobile.

I am at the library and do not have my notes, but there was one SC case directly on point that ruled 15 minutes was NOT an excessive detention.

I do remember reading one case where a person was detained in the airport for about 2 1/2 hours, it was a SC case, and they ruled given the set of facts present, it was a justifiable detention.

I have read the appeals court decision of Terry at the law library, before the OSC ruled on it. The court goes into deep detail was is considered a detention vs. an arrest.

There is case law from the 6th Circuit which states if a person is placed in the back of a patrol car, they are under arrest. Now, I can not specifically remember right now if it distinguished between a safety v. non safety reason?

There was one case I do remember from the US SC that when an investigatory stop is prolonged, then it indeed becomes an arrest.

Ohio's Constitution forbids detaing a person any longer than is necessary to conclude the original purpose of the stop, unless specific and or articulable facts support it, this does NOT mean detaining a person for an hour to bring in a drug dog.

If they smell MJ, the automobile exception permits a search of the passenger compartment, but not the trunk.

I think we are parsing a term here. An illegally lengthy detention is just that - an illegally lengthy detention. An arrest is a formal status, arrived at when, and only when, the officer orally notifies the suspect that he is under arrest.

Illegally prolonged or otherwise illegal detentions may sometimes be referred to as the functional equivalent of a formal arrest, but they are not, technically, arrests.

Putting a person in the back of a patrol car, with nothing more, is a detention only - not an arrest. Of course, if the person has been arrested prior to placing him in the back of the patrol car, then the issue of the effect of placing him in the car is moot.

So essentially we are back to my point, which was never to deny that a Terry stop could occur, but that in a situation which you describe as an "illegal detention" then you can say, "I'm done here," and leave or if you can't leave ask to be released. If they don't release you, you get to save that little item for the judge.

 

[lawbuff]

During this pre-arrest detention, you are not free to leave. You are entitled to a Miranda warning during any detention.

I have to disagree with you here George. The SC has ruled in a few cases that investigative detentions are "not custodial" for purposes of Miranda. Of course a state Constitution can afford more protection.

Berkemer v. McCarty for one.

 

[George Costanza]

How's this for proof that Miranda is effective? I am in the process of opening a new case. The police report contains the following:

"I handcuffed and detained both suspects in the back seat of my vehicle pending further investigation." (A clear detention, i.e., Miranda must be given from this point forward if any questioning is done.)

"I asked S/Valencia what happened." (Note: No Miranda warning given.) "He told me he and a whole bunch of other guys beat up V/Aguirre." (A flat out confession to the assault charge.)

"I advised S/Valencia of his Miranda rights and asked if he would like to speak to me about the assault. He said 'No.'"

Read that one over a couple of times so you can get a full handle on what is happening here. Without Miranda, the guy confesses. The cop, realizing he just got a worthless confession, now Mirandizes the suspect (Valencia) and, guess what? After having been advised, he clams up.

Seems to me that, sometimes, suspects listen to the wording of the Miranda warning and actually make a conscious decision that, hey, maybe it IS better for me if I don't say anything.

 

[George Costanza]

During this pre-arrest detention, you are not free to leave. You are entitled to a Miranda warning during any detention.

I have to disagree with you here George. The SC has ruled in a few cases that investigative detentions are "not custodial" for purposes of Miranda. Of course a state Constitution can afford more protection.

Berkemer v. McCarty for one.

You have to disagree with me on which point - that you are not free to leave during an investigative detention, or that you are entitled to a Miranda warning during a custodial interrogation?

I suspect it is the latter.

I will read the Berkemer case. I suspect it involves an exception to the Miranda rule. Back after I have had the time to go into it.

Edit Note: What the hell - I'd rather play than work. So I read it. As I suspected, this is an exception to Miranda in the case of vehicle stops. Vehicle stops are typically brief, with the decision to arrest or not arrest typically being made within a matter of minutes. As such, The Supremes have held that no Miranda warning is required, even though the motorist is being temporarily detained.

We see this in actual practice most commonly in the DUI cases, where the suspect is questioned at length by the officer without any Miranda warning prior to arrest. The suspect in a DUI case is clearly being detained - usually an FST (Field Sobriety Test) is administered, all without any Miranda warning and, of course, the suspect typeically sings like a bird throughout.

This is not the same situation as one where the officer comes upon a suspected crime in progress or just having been committed, and detains a suspect for preliminary investigation. Here, if the officer feels he has enough to detain, and does in fact do so, then Miranda is required. I think the difference has to do with the basic difference between a detention of that nature (potentially much more seious consequences and typically longer than a vehicle stop) and the type of detention typical of a vehicle stop.

Good catch, though. Very astute of you to spot it.

 

[Liability]

How's this for proof that Miranda is effective? I am in the process of opening a new case. The police report contains the following:

"I handcuffed and detained both suspects in the back seat of my vehicle pending further investigation." (A clear detention, i.e., Miranda must be given from this point forward if any questioning is done.)

"I asked S/Valencia what happened." (Note: No Miranda warning given.) "He told me he and a whole bunch of other guys beat up V/Aguirre." (A flat out confession to the assault charge.)

"I advised S/Valencia of his Miranda rights and asked if he would like to speak to me about the assault. He said 'No.'"

Read that one over a couple of times so you can get a full handle on what is happening here. Without Miranda, the guy confesses. The cop, realizing he just got a worthless confession, now Mirandizes the suspect (Valencia) and, guess what? After having been advised, he clams up.

Seems to me that, sometimes, suspects listen to the wording of the Miranda warning and actually make a conscious decision that, hey, maybe it IS better for me if I don't say anything.

The standard in NY State for whether a person is "in custody" for purposes of the Miranda requirement is the Yukl test. People v. Yukl, 25 NY2d 585. That is, what would the reasonable person feel with regard to his liberty of movement if he were in the defendant's exact position but innocent of any crime? If the "reasonable" person would not necessarily feel that he was being arrested or that his freedom to leave had been taken away from him, then it's not "custody" and if there's no custody, then there's no Miranda requirement.

Accordingly, in NY State, it is not entirely clear that the defendant's statement would end up getting suppressed.

 

[George Costanza]

How's this for proof that Miranda is effective? I am in the process of opening a new case. The police report contains the following:

"I handcuffed and detained both suspects in the back seat of my vehicle pending further investigation." (A clear detention, i.e., Miranda must be given from this point forward if any questioning is done.)

"I asked S/Valencia what happened." (Note: No Miranda warning given.) "He told me he and a whole bunch of other guys beat up V/Aguirre." (A flat out confession to the assault charge.)

"I advised S/Valencia of his Miranda rights and asked if he would like to speak to me about the assault. He said 'No.'"

Read that one over a couple of times so you can get a full handle on what is happening here. Without Miranda, the guy confesses. The cop, realizing he just got a worthless confession, now Mirandizes the suspect (Valencia) and, guess what? After having been advised, he clams up.

Seems to me that, sometimes, suspects listen to the wording of the Miranda warning and actually make a conscious decision that, hey, maybe it IS better for me if I don't say anything.

The standard in NY State for whether a person is "in custody" for purposes of the Miranda requirement is the Yukl test. People v. Yukl, 25 NY2d 585. That is, what would the reasonable person feel with regard to his liberty of movement if he were in the defendant's exact position but innocent of any crime? If the "reasonable" person would not necessarily feel that he was being arrested or that his freedom to leave had been taken away from him, then it's not "custody" and if there's no custody, then there's no Miranda requirement.

Accordingly, in NY State, it is not entirely clear that the defendant's statement would end up getting suppressed.

Thank you for that. I am in the process of "doing a little research" on this whole question of just how much detention is required to trigger Miranda. The law has been in a pretty good state of flux on that issue over the years and I want to make sure I have the most up to date information. Stay tuned . . .

BTW - your NY situation seems very similar to CA's setup on this point.

 

[Intense]

The issues that bother me about interrogation go way past Miranda.

Say someone with an agenda sets up an innocent as a Scapegoat, and the scapegoat get's bullied into saying stupid and incriminating things. The perfect murder almost requires the finger pointed at someone else, rather than no one at all. It's like throwing a bone to the pack, everyone is satisfied, except the poor schmuck that get's set up. Too many within the system have no interest in the time or energy to search deeper, when an easy conviction is handed to them on a platter. That's probably why I'm against the Death Penalty, without Positive Proof that the Accused is guilty. Zero reasonable doubt.

Second scenario, Friend's or accomplices interrogated separately, may or may not tell the truth, maybe trying to cut a deal, maybe the interrogators are just lying or making stuff up. I've had traffic Cop's lie under oath in court about what they saw, concerning me. It doesn't prejudice me against cop's I know too many. We are all human. My point is that the process needs to be more transparent.

Competency is also an issue with the defense. There needs to be a litmus test, at least for the important stuff. Nobody should be advising innocent people to cop a plea.

 

[George Costanza]

The standard in NY State for whether a person is "in custody" for purposes of the Miranda requirement is the Yukl test. People v. Yukl, 25 NY2d 585. That is, what would the reasonable person feel with regard to his liberty of movement if he were in the defendant's exact position but innocent of any crime? If the "reasonable" person would not necessarily feel that he was being arrested or that his freedom to leave had been taken away from him, then it's not "custody" and if there's no custody, then there's no Miranda requirement.

Accordingly, in NY State, it is not entirely clear that the defendant's statement would end up getting suppressed.

What degree of restraint is required to trigger a Miranda warning? Let's begin with the language of the Miranda decision itself:

...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.

So, the suspect must be "in custody." But nothing in the law is ever that simple, we all know that. What does "in custody" mean? Most would think that means under arrest. And it does. But, very quickly, courts recognized that there are situations which are the "functional equivalent" of being in custody, and situations such as these were held to also trigger the requirement of a Miranda warning.

OK, but what is the "functional equivalent" of being in custody? In answer to this, the courts came up with the following buzz phrase, which is still good law to this day: The functional equivalent of being in custody is "whenever the suspect's freedom of movement has been restrained in any significant way."

All right - but what does THAT mean? Well, it means pretty much what the judge hearing the suppression motion wants it to mean. The test is an objective one, not subjective. In other words, the court does not try to enter into the mind of the suspect and determine whether or not the suspect felt restrained. Rather, the judge will look at all of the facts of the detention (or whatever you want to call it) and determine whether or not a "reasonable person" in the suspect's position, would have felt that his freedom of movement was being restrained in any significant way.

I am going to have to go back on something I said earlier. Not all detentions will trigger a Miranda warning. There are detentions in which, even though the suspect is not free to leave, his freedom of movement is not being curtailed in a significant enough manner so as to require a Miranda warning. Traffic stops fall into this classification. (Although, in deciding Berkemer v. McCarty, the U.S. Supremes rely more on simply hammering out an exception to the Miranda custodial interrogation rule, rather than by the use of legitimate, legal analysis.)

Quite often, when police first arrive at a crime scene, they will take some action to "secure" suspects while they are conducting their preliminary investigation. At such times, they will put a suspect into the back seat of a police car, or handcuff him or tell him to sit on the curb and not move. Any one of these types of actions will almost invariabley be held to be a sufficient enough restraint on movement to require a Miranda warning.

The bottom line on all of this is that, when a suppression motion turns on whether or not the suspect was "in custody" during questioining, the ruling will almost always be decided on a case by case basis. Maybe being told to sit on the curb isn't enough. However, if, in addition to being told to sit on the curb, the suspect is also told, "and don't move," and a police officer is assigned to stand next to the suspect to make sure he doesn't move, these additional factors would probably be sufficient to trigger Miranda.

That's my story - and I'm sticking to it!

One final comment to Liability. Your N.Y. definition appears right in line with all of the above except for the part about "the innocent suspect." To be honest, that one I have not run into yet and it most certainly does not appear in any California case to my knowledge.

Also - different jurisdictions have different requirements for Miranda warnings. Not every nuance of the problem has been decided by The Supremes.

 

[Cecilie1200]

How's this for proof that Miranda is effective? I am in the process of opening a new case. The police report contains the following:

"I handcuffed and detained both suspects in the back seat of my vehicle pending further investigation." (A clear detention, i.e., Miranda must be given from this point forward if any questioning is done.)

"I asked S/Valencia what happened." (Note: No Miranda warning given.) "He told me he and a whole bunch of other guys beat up V/Aguirre." (A flat out confession to the assault charge.)

"I advised S/Valencia of his Miranda rights and asked if he would like to speak to me about the assault. He said 'No.'"

Read that one over a couple of times so you can get a full handle on what is happening here. Without Miranda, the guy confesses. The cop, realizing he just got a worthless confession, now Mirandizes the suspect (Valencia) and, guess what? After having been advised, he clams up.

Seems to me that, sometimes, suspects listen to the wording of the Miranda warning and actually make a conscious decision that, hey, maybe it IS better for me if I don't say anything.

I guess you could call that "effective" if the effect you're looking for is to make criminals clam up. Not being a sleazeball defense lawyer, I don't really have that as my goal.

 

[Liability]

The standard in NY State for whether a person is "in custody" for purposes of the Miranda requirement is the Yukl test. People v. Yukl, 25 NY2d 585. That is, what would the reasonable person feel with regard to his liberty of movement if he were in the defendant's exact position but innocent of any crime? If the "reasonable" person would not necessarily feel that he was being arrested or that his freedom to leave had been taken away from him, then it's not "custody" and if there's no custody, then there's no Miranda requirement.

Accordingly, in NY State, it is not entirely clear that the defendant's statement would end up getting suppressed.

What degree of restraint is required to trigger a Miranda warning? Let's begin with the language of the Miranda decision itself:

...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.

So, the suspect must be "in custody." But nothing in the law is ever that simple, we all know that. What does "in custody" mean? Most would think that means under arrest. And it does. But, very quickly, courts recognized that there are situations which are the "functional equivalent" of being in custody, and situations such as these were held to also trigger the requirement of a Miranda warning.

OK, but what is the "functional equivalent" of being in custody? In answer to this, the courts came up with the following buzz phrase, which is still good law to this day: The functional equivalent of being in custody is "whenever the suspect's freedom of movement has been restrained in any significant way."

All right - but what does THAT mean? Well, it means pretty much what the judge hearing the suppression motion wants it to mean. The test is an objective one, not subjective. In other words, the court does not try to enter into the mind of the suspect and determine whether or not the suspect felt restrained. Rather, the judge will look at all of the facts of the detention (or whatever you want to call it) and determine whether or not a "reasonable person" in the suspect's position, would have felt that his freedom of movement was being restrained in any significant way.

I am going to have to go back on something I said earlier. Not all detentions will trigger a Miranda warning. There are detentions in which, even though the suspect is not free to leave, his freedom of movement is not being curtailed in a significant enough manner so as to require a Miranda warning. Traffic stops fall into this classification. (Although, in deciding Berkemer v. McCarty, the U.S. Supremes rely more on simply hammering out an exception to the Miranda custodial interrogation rule, rather than by the use of legitimate, legal analysis.)

Quite often, when police first arrive at a crime scene, they will take some action to "secure" suspects while they are conducting their preliminary investigation. At such times, they will put a suspect into the back seat of a police car, or handcuff him or tell him to sit on the curb and not move. Any one of these types of actions will almost invariabley be held to be a sufficient enough restraint on movement to require a Miranda warning.

The bottom line on all of this is that, when a suppression motion turns on whether or not the suspect was "in custody" during questioining, the ruling will almost always be decided on a case by case basis. Maybe being told to sit on the curb isn't enough. However, if, in addition to being told to sit on the curb, the suspect is also told, "and don't move," and a police officer is assigned to stand next to the suspect to make sure he doesn't move, these additional factors would probably be sufficient to trigger Miranda.

That's my story - and I'm sticking to it!

One final comment to Liability. Your N.Y. definition appears right in line with all of the above except for the part about "the innocent suspect." To be honest, that one I have not run into yet and it most certainly does not appear in any California case to my knowledge.

Also - different jurisdictions have different requirements for Miranda warnings. Not every nuance of the problem has been decided by The Supremes.

The inclusion of the condition for the hypothetical person in the defendant's position that the hypothetical person be "innocent of any crime" is pretty interesting. A hypothetical person in exactly the defendant's position who also happens to be a person with a guilty mind would tilt the table toward the defendant. Anybody having something to hide might feel that he was no longer free to leave (the guilty conscience syndrome).

But since the Court is trying to analyze whether the police conduct constituted an arrest (or its equivalent), the question is better seen through the eyes of a person in the defendant's very same position IF that person didn't already have that guilty conscience syndrome thing going on. (The Court is pretty much saying, in effect, "if we presume a defendant innocent, then why not judge whether he would have felt he was under arrest by the standard OF an innocent man?")

 

[Intense]

The standard in NY State for whether a person is "in custody" for purposes of the Miranda requirement is the Yukl test. People v. Yukl, 25 NY2d 585. That is, what would the reasonable person feel with regard to his liberty of movement if he were in the defendant's exact position but innocent of any crime? If the "reasonable" person would not necessarily feel that he was being arrested or that his freedom to leave had been taken away from him, then it's not "custody" and if there's no custody, then there's no Miranda requirement.

Accordingly, in NY State, it is not entirely clear that the defendant's statement would end up getting suppressed.

What degree of restraint is required to trigger a Miranda warning? Let's begin with the language of the Miranda decision itself:

...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.

So, the suspect must be "in custody." But nothing in the law is ever that simple, we all know that. What does "in custody" mean? Most would think that means under arrest. And it does. But, very quickly, courts recognized that there are situations which are the "functional equivalent" of being in custody, and situations such as these were held to also trigger the requirement of a Miranda warning.

OK, but what is the "functional equivalent" of being in custody? In answer to this, the courts came up with the following buzz phrase, which is still good law to this day: The functional equivalent of being in custody is "whenever the suspect's freedom of movement has been restrained in any significant way."

All right - but what does THAT mean? Well, it means pretty much what the judge hearing the suppression motion wants it to mean. The test is an objective one, not subjective. In other words, the court does not try to enter into the mind of the suspect and determine whether or not the suspect felt restrained. Rather, the judge will look at all of the facts of the detention (or whatever you want to call it) and determine whether or not a "reasonable person" in the suspect's position, would have felt that his freedom of movement was being restrained in any significant way.

I am going to have to go back on something I said earlier. Not all detentions will trigger a Miranda warning. There are detentions in which, even though the suspect is not free to leave, his freedom of movement is not being curtailed in a significant enough manner so as to require a Miranda warning. Traffic stops fall into this classification. (Although, in deciding Berkemer v. McCarty, the U.S. Supremes rely more on simply hammering out an exception to the Miranda custodial interrogation rule, rather than by the use of legitimate, legal analysis.)

Quite often, when police first arrive at a crime scene, they will take some action to "secure" suspects while they are conducting their preliminary investigation. At such times, they will put a suspect into the back seat of a police car, or handcuff him or tell him to sit on the curb and not move. Any one of these types of actions will almost invariabley be held to be a sufficient enough restraint on movement to require a Miranda warning.

The bottom line on all of this is that, when a suppression motion turns on whether or not the suspect was "in custody" during questioining, the ruling will almost always be decided on a case by case basis. Maybe being told to sit on the curb isn't enough. However, if, in addition to being told to sit on the curb, the suspect is also told, "and don't move," and a police officer is assigned to stand next to the suspect to make sure he doesn't move, these additional factors would probably be sufficient to trigger Miranda.

That's my story - and I'm sticking to it!

One final comment to Liability. Your N.Y. definition appears right in line with all of the above except for the part about "the innocent suspect." To be honest, that one I have not run into yet and it most certainly does not appear in any California case to my knowledge.

Also - different jurisdictions have different requirements for Miranda warnings. Not every nuance of the problem has been decided by The Supremes.

The inclusion of the condition for the hypothetical person in the defendant's position that the hypothetical person be "innocent of any crime" is pretty interesting. A hypothetical person in exactly the defendant's position who also happens to be a person with a guilty mind would tilt the table toward the defendant. Anybody having something to hide might feel that he was no longer free to leave (the guilty conscience syndrome).

But since the Court is trying to analyze whether the police conduct constituted an arrest (or its equivalent), the question is better seen through the eyes of a person in the defendant's very same position IF that person didn't already have that guilty conscience syndrome thing going on. (The Court is pretty much saying, in effect, "if we presume a defendant innocent, then why not judge whether he would have felt he was under arrest by the standard OF an innocent man?")

I had a customer. This dirt bag was a retired Police Captain, Internal Affairs, under Mayor Guiliani. Real dirt bag. Brought me into his home under false pretenses to do a repair. I couldn't help him, had he been honest and up front it would have been handled over the phone, at no cost to him. About a month later the turd tried to scam me out of what he had paid me. He threatened, he bullied, he had connections at the Nassau County Court house. Real Scum Bag. I knew I had right on my side, so I told him to take his best shot. I never heard from the prick again. I wonder how many lives he screwed up doing his job, how many innocents he coerced into either doing his bidding, or admitting to doing things they didn't do, for fear of his threats and intimidation.

There are innocent people in prison guy's. Sometimes it's about perspective, bad council, or investigators not wanting to go to the next level. It's real easy to come to conclusions and misjudge.

 

[Liability]

What degree of restraint is required to trigger a Miranda warning? Let's begin with the language of the Miranda decision itself:



So, the suspect must be "in custody." But nothing in the law is ever that simple, we all know that. What does "in custody" mean? Most would think that means under arrest. And it does. But, very quickly, courts recognized that there are situations which are the "functional equivalent" of being in custody, and situations such as these were held to also trigger the requirement of a Miranda warning.

OK, but what is the "functional equivalent" of being in custody? In answer to this, the courts came up with the following buzz phrase, which is still good law to this day: The functional equivalent of being in custody is "whenever the suspect's freedom of movement has been restrained in any significant way."

All right - but what does THAT mean? Well, it means pretty much what the judge hearing the suppression motion wants it to mean. The test is an objective one, not subjective. In other words, the court does not try to enter into the mind of the suspect and determine whether or not the suspect felt restrained. Rather, the judge will look at all of the facts of the detention (or whatever you want to call it) and determine whether or not a "reasonable person" in the suspect's position, would have felt that his freedom of movement was being restrained in any significant way.

I am going to have to go back on something I said earlier. Not all detentions will trigger a Miranda warning. There are detentions in which, even though the suspect is not free to leave, his freedom of movement is not being curtailed in a significant enough manner so as to require a Miranda warning. Traffic stops fall into this classification. (Although, in deciding Berkemer v. McCarty, the U.S. Supremes rely more on simply hammering out an exception to the Miranda custodial interrogation rule, rather than by the use of legitimate, legal analysis.)

Quite often, when police first arrive at a crime scene, they will take some action to "secure" suspects while they are conducting their preliminary investigation. At such times, they will put a suspect into the back seat of a police car, or handcuff him or tell him to sit on the curb and not move. Any one of these types of actions will almost invariabley be held to be a sufficient enough restraint on movement to require a Miranda warning.

The bottom line on all of this is that, when a suppression motion turns on whether or not the suspect was "in custody" during questioining, the ruling will almost always be decided on a case by case basis. Maybe being told to sit on the curb isn't enough. However, if, in addition to being told to sit on the curb, the suspect is also told, "and don't move," and a police officer is assigned to stand next to the suspect to make sure he doesn't move, these additional factors would probably be sufficient to trigger Miranda.

That's my story - and I'm sticking to it!

One final comment to Liability. Your N.Y. definition appears right in line with all of the above except for the part about "the innocent suspect." To be honest, that one I have not run into yet and it most certainly does not appear in any California case to my knowledge.

Also - different jurisdictions have different requirements for Miranda warnings. Not every nuance of the problem has been decided by The Supremes.

The inclusion of the condition for the hypothetical person in the defendant's position that the hypothetical person be "innocent of any crime" is pretty interesting. A hypothetical person in exactly the defendant's position who also happens to be a person with a guilty mind would tilt the table toward the defendant. Anybody having something to hide might feel that he was no longer free to leave (the guilty conscience syndrome).

But since the Court is trying to analyze whether the police conduct constituted an arrest (or its equivalent), the question is better seen through the eyes of a person in the defendant's very same position IF that person didn't already have that guilty conscience syndrome thing going on. (The Court is pretty much saying, in effect, "if we presume a defendant innocent, then why not judge whether he would have felt he was under arrest by the standard OF an innocent man?")

I had a customer. This dirt bag was a retired Police Captain, Internal Affairs, under Mayor Guiliani. Real dirt bag. Brought me into his home under false pretenses to do a repair. I couldn't help him, had he been honest and up front it would have been handled over the phone, at no cost to him. About a month later the turd tried to scam me out of what he had paid me. He threatened, he bullied, he had connections at the Nassau County Court house. Real Scum Bag. I knew I had right on my side, so I told him to take his best shot. I never heard from the prick again. I wonder how many lives he screwed up doing his job, how many innocents he coerced into either doing his bidding, or admitting to doing things they didn't do, for fear of his threats and intimidation.

There are innocent people in prison guy's. Sometimes it's about perspective, bad council, or investigators not wanting to go to the next level. It's real easy to come to conclusions and misjudge.

I'm not sure what your point is.

I had a client accused of having a gun in his car allegedly visible from outside the car. That particular claim was bullshit for a couple of very good reasons. The trial was a bear. But in the end, the fact that the cops had lied was brought out pretty forcefully. Even in a suburban county with lots of upper middle class to upper class largely white jurors, the cops couldn't get over on them.

If you're suggesting that our system of justice doesn't always end up with justice getting accomplished, I do not disagree with you. Cops sometimes do lie. Jurors sometimes do get it wrong. Judges are often far from judicial or learned in the law. Lawyers aren't all detail oriented hardworking and bound and determined to obtain justice for their innocent clients. Investigators often pay lip service to their jobs too. Yet despite it all, I have yet to observe (or even hear of) any system that's better.

The answer to the fact that the system is not "perfect," though, is not to stymie good cops by imposing absurd obligations on them. I have NO problem with a suspect clamming up. I wish all my clients nowadays were that bright. But if the cops manage (without improper methods like threats of violence or threats of improper consequences) to get some dumbass talking, and that chatter results in getting the dumbass arrested or convicted, I'm ok with that too. In my experience MOST (not all, but most) people arrested by the cops are actually guilty of the charges (or at least guilty on some lower level). I am not disturbed by the prospect that a guilty asshole speaking too much might get himself in trouble, provided the cops have played by the rules.

I expect lots of the defendants to lie. I am intolerant of cops lying. They are supposed to be different and should be held to a higher standard.