Protecting Against Unlawful Interrogations: From The Cop Side

While viewing your favorite police show on television, have you ever followed an episode in which the police advised a suspect of their rights? Did it seem like the scene was placed for dramatic effect or was it a proper segue into an advisement of rights? Do you understand in which situations a peace officer must advise you of your rights?As a peace officer, it is paramount an official does not just recite these rights, but he or she must also have the ability to articulate what they mean and why they are important.

Veteran peace officers will tell you one of the greatest accomplishments is getting a confession from a bad guy. We often called it “breaking the suspect.” Being a great interviewer/interrogator really is about communication–having a knack for gab, building rapport, and knowing when to make the right move to bring out the admission. At the same time, it must be a lawful interrogation. Then…attorneys always bring Miranda into the conversation.

Historical Perspective

Miranda v. Arizona (1966) was a landmark case which forever changed the conduct and procedures of law enforcement officers. Edward Miranda was arrested for kidnapping and sexual assault. The case was overturned and retried based on the fact that Mr. Miranda was not informed of his Constitutional rights (Fifth and Sixth Amendments) prior to giving a confession. He was retried and convicted based upon evidence and witness testimony. The confession was not used in the second trial.

In 1966, the U.S. Supreme Court ruled in a 5-4 decision that no confession would be admissible under the Fifth Amendment self-incrimination clause and the Sixth Amendment right to an attorney unless the suspect(s) were made aware of his or her rights and waived their rights to police. Chief Justice Earl Warren delivered the opinion, making a defining moment in law enforcement history. Although the court did not define exact language to use in the deliverance of rights to a suspect, it did give minimum requirements. These requirements are what are commonly called “Miranda Warnings” or “Miranda Rights.”

Furthermore, in 1981, in the court case of Edwards v. Arizona, the U.S. Supreme Court also included parameters of a waiver, further establishing a statement (testimonial evidence) given by a suspect had to be “knowing, intelligent, and voluntary.” In 2000, Dickerson v. U. S., the courts concurred Miranda Warnings have become a part of the nation’s culture, but ruled a violation of Miranda Warnings was not a violation of the U.S. Constitution. However, a confession may be lost in trial due to an officer’s failure to inform a suspect of their rights.

The Language of Miranda Warnings

Informing someone of their rights includes the following warnings and a waiver (or similar form thereof):

1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3.  You have the right to have an attorney present and to have him or her with you during any questioning if you wish.
4.  If you cannot afford an attorney, one will be appointed for you before any questioning begins.
5.  You may decide at any time not to answer any questions or make any statements. You may also decide not to answer any questions before consulting with an attorney.
6.  Do you understand these rights as I have explained them to you?
7.  With these rights in mind, do you wish to answer any questions or make any statements now?

In order for Miranda to apply, there are rules which are helpful. First, the evidence gathered is testimonial in nature, and subsequently, obtained while a suspect is in custody or their liberty is denied or restricted. The evidence must also have been the product of interrogation conducted by law enforcement or an agent. Finally, the testimonial evidence must be offered during a criminal prosecution.

Additionally, the rights do not have to be words verbatim as written above. However, an officer must contain the minimum requirements defined by the U.S. Supreme Court. Many officers will read from a card, use a form with a waiver signature, or advise a suspect from memory. All are acceptable.

Miranda Warning/Waiver Exceptions

Any procedures involving identification are excluded from the Miranda Rights and are considered exceptions. Below are a few examples:

1. Handwriting exemplars
2. Fingerprints
3. Photographs
4. Voice exemplars
5. DNA
6. Hair samples
7. Dental Impressions

The “public safety exception” is a widely known exception. In 1984, New York v. Quarles, “public safety exception” was born out of the court system regarding a case where a gun was missing in a murder of a little girl. The suspect was in the back of the police car when the officers made statements about the gun being a danger to society if a child found it. The suspect confessed to the crime. The confession was upheld. In 2009, another decision in California upheld the conviction of Richard Allen Davis for the same reason-citing the “public safety exception” applied.

Statements produced out of the guise of an exception may be subjected to suppression hearings filed by defense attorneys. An exception must be evaluated on a case by case basis by the courts. Law enforcement officials must always be cautious in their use of language and diligent in avoiding any coercion when these situations arise.

Spontaneous statements are another exception to Miranda Rights and hearsay rules. These statements must be made without any questioning from law enforcement and are admissible in court and can be held against a subject. Often phrased as “excited utterances”, a spontaneous statement is unplanned and unsolicited by police, but spoken during an excited or startling moment.

Jailhouse informants and routine book-in questioning are the final exceptions to Miranda Rights discussed here. A confession obtained by way of police informant or deliberate elicitation can be challenged under the “Massiah Doctrine” and the use of the testimonial evidence can be denied. The Massiah Doctrine stems from a court decision during the appeal of Massiah v. U.S, 1964, pertaining to the defendant’s 6th Amendment right to counsel. The doctrine defines “deliberate elicitation” as the intentional creation of circumstances by police which are likely to elicit an incriminating statement. This type of information can be suppressed and it is the police officer’s duty to maintain the defendant was aware of his or her right to counsel and that the waiver was “knowing, intelligent, and voluntary.”

This court ruling went further to cover offenses which are “formally charged” and categorizing statements or interrogation falling under those obtained by “deliberate elicitation” as questionable. Custody is irrelevant, but the admissibility scale does apply to overt and surreptitious interrogation. It allows for the use of jailhouse informants only if they are passive listeners. Other informant use can be terms of impeachment or suppression if any incriminating statements are obtained and “fruits of the poisonous tree” may apply.

The Parameters of The Waiver

The waiver has no precise language defined by the U.S. Supreme Court. However, the court specified the waiver must be “knowing, intelligent, and voluntary.” If a person agrees to make a statement or answer questions, the statements must be voluntary (without coercion) and the relinquishment of their rights must be by a knowing and intelligent decision. Often times officers have suspects sign a waiver agreement (form). Furthermore, many police contacts are recorded in these instances; the entire interview is documented to protect the statement and show its voluntariness, including the dialogue of the advisement of rights and a waiver.

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If a person invokes his or her rights, questioning must stop. The person must be allowed to consult with an attorney before any further questioning occurs. Moreover, a suspect may re-initiate contact with police without an attorney present. This can only occur if the initial interrogation has concluded and there is a break in custodial status. These additional circumstances have been referred to as “The Edwards Rule” so named after the case, Edwards v. Arizona, 1981.

Law Enforcement Integrity and Protecting Against Unlawful Interrogations

What worked for me? The times I had a comfortable and conversational dialogue of the advisement of rights produced the most successful interviews and interrogations. It sure didn’t
happen overnight. My first attempts felt out of place and sounded rehearsed, forced. This was evident when suspects invoked and put the brakes on any further questioning. How I advised persons through my tone and pitch was off-putting, mostly because I had a bad delivery style in the beginning stages of my law enforcement career. It’s very true in some sense that it is not what you say, but how you say it.

With time and experience, I improved. So what did I learn? Each time, due diligence must be taken to insure suspects were properly advised of their rights. Most suspects already knew their rights. Most of them really wanted to talk to police just to find out what we knew about them and the case. Being mindful of establishing a good rapport, showing respect, and communicating a comfortable delivery of the Miranda warnings worked. Most suspects agreed to talk to me.

Occasionally, citizens confuse the facts and believe an officer must inform someone of their rights during every police contact. Television drama may help facilitate this misinformation. The circumstances in which these warnings apply involve custodial situations. Does that mean the person has to be in handcuffs? No. Does it mean the suspect is at the police station? No, not always. They may not be formally arrested, but the police have restricted their access to liberty (freedom to move) or the person (suspect) feels as if his or her freedom is restricted.

For example, perhaps a person is just locked in an interview room. In this particular case, the person’s liberty is restricted because they are locked in a room. It does not mean they are or will be immediately arrested. However, they are not free to leave. This would be a time where informing someone of their rights is proper and required to insure any statement is admissible. Officers must always determine whether the person’s freedom to leave is restricted, denied, or if they (the suspect) feel it is denied. This could be determined by place and/or by liberty, i.e.: mobility, detention, security, opportunities to leave, exits.

An officer does not have to inform anyone of their rights if they do not ask them any questions (testimonial evidence) which could incriminate them. For instance, if a suspect is arrested for a warrant and booked into the jail, an officer would not inform them of their rights on just that fact. However, if the officer intended to ask the person questions about the crime at hand or another crime in which the arrestee is a suspect, the officer must inform the person of his or her rights.

Early in my police career, I advised people of their rights from a card and sounded very robotic, even awkward at times. I also erred on the side of caution and probably told people about their rights in situations where it was not necessary. With practical experience, it became a natural instinct for me to know when someone needed to be informed of their rights.

The Miranda warnings were mandated to insure all statements are voluntary and protect suspects from unlawful interrogations. It is the duty of a peace officer to know when and where to inform suspects of their rights and protect persons under these circumstances. Proper police conduct (including upholding suspects’ rights) is a component of a peace officer’s integrity as an agent of the state. It’s a big deal.