gregknappcriminaldefense

“The Cops Didn’t Read Me My Rights…”

One of the most common things people tell me day in and day out is that the police didn’t read them their Miranda rights. They weren’t Mirandized. What a shame! We all know from thirty years of cop shows on television that reading a suspect his rights is as basic as handcuffing them behind their back. Boy, the police really messed up. The case surely must get dismissed, right? Wrong, usually.

Before, I get into a legal analysis of Miranda and when it applies, the first thing I ask a person is “what did you tell the police?” or what did they ask you? The typical response is “nothing.” They either didn’t say anything or weren’t asked anything. The bottom line is that Miranda protects a defendant at trial from the State using things the defendant said after they were arrested if not properly Mirandized. If nothing was asked after being arrested or nothing damaging was said, there is nothing to suppress, nothing to keep out. Essentially, no harm, no foul. Miranda is only going to help keep your damaging statements and admissions from being used against you if you were not properly Mirandized after being arrested.

What about the damaging statements you did say? When did you say them? Before or after being arrested? Just being stopped or detained does not necessarily mean you were arrested. In Nevada, like most states, if you were detained and ultimately arrested, the point in time at which Miranda Rights applies is when the police officer made the decision to arrest you. When a person is detained by the police and being investigated, the police are not required to give Miranda warnings. The may and often do, but they do not have to until they make the decision to place a person under arrest. A person in Nevada may be detained without being under arrest for up to 1/2 hour for investigation.

The most typical situations in which citizens come into contact with police in Las Vegas these days involves cases of Battery Domestic Violence and DUI. In typical domestic violence scenario, the police when the police are called, they’ll tell you they “have to make an arrest.” I’ll discuss the baloney of that assertion in another blog, but for now assume the police will make an arrest. When they first arrive, they are only going to decide which or both will be arrested. The parties are generally split up and questioned rather extensively about what is alleged to have occurred. During this time, neither party is under arrest, and Miranda is not required. Until they’ve gathered enough evidence to pick a party to arrest, they may detain and investigate and ask questions. A person is not compelled to talk prior to arrest, but usually will anyway. During these interviews, the parties typically make a variety of statements that can be used against them. While not admitting any fault, one key element in a domestic battery case is the relationship to the other party. A statement as simple as “I was just arguing with my wife” is often damaging enough. Without the victim appearing in court and testifying, if the police can piece together evidence that a battery occurred and that you were involved, either through independence evidence such as photos or video, or through other witnesses, the final element between you and a domestic battery conviction may be your admission of the relationship. Since you were not under arrest prior to making that statement, it may be used against you regardless.

In a DUI case, the police may have stopped you for any number of reasons lawfully; from speeding to swerving to talking on a cell phone. You are detained, you are not free to leave, but you are not under arrest -yet. While investigating the stop, if they chose to ask alcohol or impairment related questions, they may do so in an investigatory manner and ask you about drinking as well as ask you to partake in field sobriety tests. Once you fail those tests, and are placed under arrest, then they must Mirandize you and stop asking question unless you consent to. By then, there isn’t usually anything they even care to ask. Your incriminating statements prior to being placed under arrest, such as admitting drinking are able to be used against you and the police followed the requirements of Miranda.

Unfortunately, The Miranda Rights is not quite the safety blanket as portrayed on television, but is still important.

If you were arrested and the police did not read you your Miranda rights, call attorney Greg Knapp at 702-380-4199 for your free consultation today!