Mike Kenny, attorney, Bauer, Crider, and Parry: The second portion of it,
on Miranda, or I’m sorry interrogation. Interrogation is essentially
what it is – a question designed to elicit an incriminating response.
And, a lot of that, sometimes, believe it or not, is litigated. There
have been cases where a person may have invoked his right to remain silent,
and said he did not want to answer any questions. And officers would begin
to have a conversation and begin talking. But not, claim they’re
not asking questions. But, maybe in the way they design their questions.
There is a famous case where there was a homicide, and there was a discussion
about, you know, where, you know, the these poor victims that were killed,
you know. Wouldn’t the parents like to see where they are? And just
help these parents come find the body and give them a Christian burial,
so to speak. And the conversation between the officers in the front seat
of the car, where the gentleman in the back is hearing all this, the court
was inquiring, “Was that conversation designed to elicit an incriminating
response for him?” Where he says, “Well, all right. Listen,
you go around the corner you’re going to find, you’re going
to find where I buried everybody.”
And courts look at the actions and intent upon the person making the statement.
So, the short idea is, not every interrogation, necessarily, is a question.
But it’s, “Was it designed to elicit an incriminating response?”
And, in that particular example, about talking about giving these children
a Christian burial, you know, the courts were asked to interpret whether,
or not, that conversation between two officers in the front seat driving
the suspect around was designed to elicit an incrementing response from him.
So, that’s the basics of Miranda. And when you get your Miranda warnings
you have to be in custody, and you have to be propounded questions or
you have to be questioned or spoken to in a manner that is designed to
elicit an incriminating response. Now, when that comes up, when the person
is in custody the officer has to read these warnings. And I get, all the
time, people when they come, after they get arrested, oftentimes they
tell me, “Hey, listen. Nobody read me my rights. You know? So, what
does that mean?”
And that’s the question, right? What does it mean if an officer has
you in custody and does not review your Miranda warnings? And what it
means is, it depends. That’s the short of it. It depends.
There are plenty of cases were officers make an arrest and they don’t
ask any questions. And if they don’t ask any questions the failure
to read Miranda warnings is a irrelevant. It only matters whether, or
not, a person is answering questions. And the reason why it only matters,
is what some people might believe, “If I don’t get my read
my rights the arrest goes away, or the charge goes away,” is not
accurate. The cure for the error in law enforcement, in failing to read
Miranda warnings, the cure for that is that any statements made without
being warned, when they should have been warned, any statements made are
suppressed. Meaning they are kept out evidence. So, they don’t make
the charge go away, and they don’t make the arrest go away.
So, sometimes that matters, and sometimes it’s completely has no
impact on the arrest. And I’ll give an example when it matters.
What comes up very often in drug possession cases. In Florida, we have
an understanding of the law possession where it’s called constructive
possession. And constructive possession means where a controlled substance
may be in the possession of more than one person. And it’s not in
the hands of the person, and it’s not in the pocket of the person,
or on the body, or so near to them to be considered on their person. But
it’s maybe in the area.
For instance, a car is the best example I can come up with. Two occupants
in a vehicle. The vehicle is stopped for some for some traffic violation.
An officer comes over the driver side of the window and maybe even notices
in plain view a controlled substance sitting in the center console. Or,
sitting on top of the center console. In that particular case you have
a constructive possession issue. If the officer takes both of the individuals
out of the car and begins to interrogate them. At that moment you would
have a custodial setting, and you would have interrogation asking, “Hey,
whose drugs are these? Where do they come from?” You know? “Who
was using it.” That part is when the Miranda warnings would matter.
If a person answered the question, and they said, “It was mine.”
Or, another person said, “It was mine.” Those are very critical
responses. Those responses are what the state would be able to use to
show that this particular individual was in constructive possession of
that controlled substance.
So, if we have a case where there’s occupants in a vehicle, and an
officer stops the car. And an officer pulls both occupants out of the
vehicle and begins to ask them questions without providing Miranda warnings.
And maybe one of those individuals says, “Yes, the drugs are mine.”
Well, that would be a crucial aspect in the defense of this case. Because
what I would look at say, “Well, listen. My client was in custody.
The officer began to ask my client incriminating questions, and the officer
should had read him Miranda warnings.” The failure of the officer
to do that means that I would ask the court to suppress my client’s
admission to the possession of the controlled substance found inside the vehicle.
Now what does that mean in the big picture? Well, in the big picture, like
I told you, Florida has a possession called constructive possession. In
a constructive possession case, the State is required to prove that the
person possessed a certain item. And in a constructive possession case
they have to prove that the person knew of the item, and the illicit nature
of that substance, and that the person had the ability to exercise dominion
and control over that substance in the car. So, if you suppress a statement
from my client where he admits knowledge of it, or he admits ownership
of it, and all we have is a car with two people inside and a control substance
found inside. Without that admission, I would argue there’s a very
good case to make that that possession case can’t stand. The reason
why it can’t stand is because the State is without any evidence
to show that my particular client, as opposed to the other individual
in the car, was in constructive possession. Without that admission, the
State will have a very hard job showing my client exercise dominion and
control. The State would have maybe a less difficult time, but still a
difficult time showing that my client had knowledge of it. In a constructive
possession case you have to both know it’s there, but knowing it’s
there is not enough. You have to know is there, and you have to exercise
that control over it like that substance is yours.
You can think of plenty situations where a person may get into a car, and
see maybe the driver of the car doing some that that is illegal, or that
he would necessarily do it. Because you know the driver has a controlled
substance doesn’t mean you’re exercising dominion and control
over it. And that’s what the courts are concerned about. So, that’s
where Miranda warnings and any maybe a motion to suppress the statement
matters. That’s where if a cop fails to read you Miranda warnings,
and the statement gets suppressed, that may have an outcome where the
case actually gets dismissed.
In another case, where officers observe a bank robbery, and see a person
running out of a bank with a bag full of cash and a firearm in his hand.
They can run up, they can arrest him, they can fail to read him warnings
and the guy may make no statements. It really won’t have much of
an impact whether, or not, he read Miranda warnings or not because you
have evidence that tends to suggest the officers observed a robbery in progress.
M: So, it matters. It’s very fact specific what actually happened
in the particular case. Now, we talked about it’s up to the person,
it’s up to the client to exercise that right to remain silent. So,
what happens if an officer reads a person Miranda warnings and the client
says, “Listen. I’d like to remain silent. I don’t want
to answer any questions.” All questioning must cease. They don’t
get to ask him any more questions at that moment.
There’s also what must be understood there’s two specific rights:
there’s a right to an attorney and there’s right to remain
silent. So the person says, “I want my lawyer.” That’s
a very different right. That’s a right saying, “I want to
have a lawyer. Either have one appointed for me before anything happens,
or I don’t want to do anything until I have a lawyer present.”
A right to remain silent is saying, “I don’t want to answer
any questions at that moment.” That right can later be waived at
some point. If an officer comes and asks a person a question again,, after
a period of time, but an officer still has give the person a Miranda warning.
So, the power, in essence, as far as the questioning of whether answer
questions with the suspect. The suspect has that right to waive. And the
suspect has that right to invoke his rights. And, of course, my advice
to anybody is whether you think you’re as innocent as possible,
you never want to find yourself involved in a conversation with law enforcement
where they’re investigating a crime without at least having a
criminal lawyer present. My advice is until we know what, in fact, the law enforcement
is looking into. Until we know what the circumstances are, you always
want to have a lawyer present with you, and you probably don’t want
to answer any questions.
B: Use that right to remain silent?
M: Absolutely. Absolutely.