Miranda rights and questioning: when it applies – part 2 of a series

In part one, I discussed what the law of the 1966 Miranda decision requires when a person is being questioned by police.  In this part, I’ll explain when the police are even required to read your rights.

First – Custody

The whole decision of the Miranda case dealt with custodial interrogation.  That means that the police are required to give the Miranda warnings when a person is in custody before they can get a statement from them.

What is “custody”?

Under case law, “custody” is defined as a formal arrest or the functional equivalent of an arrest.  Obviously, if you have been told you’re under arrest, you are “in custody” for the purpose of the Miranda rights.  If the police want to question you after you’ve been arrested, they must advise you of your rights.  But other situations can trigger the Miranda rights as well – even when you haven’t been formally arrested.

“Custody” without being arrested

First, a quick overview of the categories of police interaction:

  • Consensual encounter:  The police can engage in a conversation with anyone as long as that person is free to leave and an ordinary person would feel free to leave.
  • Detention: A person is temporarily not free to leave and has been detained based on reasonable suspicion of criminal activity
  • Arrest:  A person has been taken into custody based on probable cause to believe they’ve committed a crime.

It is only during that third category – an arrest – that automatically means they must advise you of your rights before questioning.  During a consensual encounter or detention, case law has said that you’re not “in custody” and therefore the Miranda rights don’t apply.  Here are some examples:

Let’s say the police walk up to a person just standing on the street corner.  Assuming they don’t do anything to indicate the person is not free to go, they could ask if that person had any drugs on them.  If the person says “yes” – it’s absolutely incriminating, but not a Miranda violation because the person wasn’t “in custody”.

Similarly, if you were stopped for speeding and the officer smelled alcohol, you can bet the first question he’d ask would be, “Have you been drinking?”  If you answer “yes”, you’ve just incriminated yourself.  However, because you are only “detained” for the speeding violation, you’re not “in custody” and Miranda warnings are not required.

A detention can be “custody”

In some circumstances, even during a detention, you can be “in custody” for Miranda purposes.  A detention is supposed to be a temporary situation – just long enough for the police to deal with the reason you were detained.  Either they can develop enough evidence to have probable cause to arrest or they will determine there’s not enough and let you go.  If that detention is prolonged (an unreasonable length of time to deal with the reason for the detention), it can turn into the equivalent of custody and Miranda warnings would be required or the statement would be inadmissible.

If the detention rises to a level beyond a temporary detention in its intensity, that too can be “custody” for Miranda purposes.  For example, although a person could be detained at gunpoint initially, to continue to hold them at gunpoint for an extended period of time, surrounding them by multiple officers or other circumstances beyond that necessary to detain someone could make the detention into “custody.”  Transporting a detained individual to another location without their consent or emergency circumstances would also elevate an ordinary detention into custody.

When are you NOT in custody?

When the circumstances surrounding your police interaction are less than I talked about above, it is likely to be seen as non custody.  One of the biggest factors in determining this can be your consent.  The Miranda decision primarily focused on the police-dominated and coercive atmosphere of the police station.  But if you agree to go with the police for an interview or if you show up for an interview, you’re there with consent.  If the police are savvy, they’ll give you a Beheler admonition [from the US Supreme court decision in California v. Beheler (1983) 463 U.S. 1121].  A Beheler admonition is when they advise you that although you may be in the police station behind closed (or even locked) doors, you’re free to go at any time.  If you agree to stay, that takes away (in the court’s mind) any coercive nature of being in the police station.

Custody for Miranda also means just that – you’re in the custody of the police.  You can’t be in custody if they call you on the phone.  No matter how intimidating or heated telephonic questioning may be, you’re free to simply hang up.

So – if the police are required to read you your rights, they must do so or any custodial statement is subject to being excluded from the prosecution’s case.  If you said something in a statement taken in violation of Miranda that leads them to pieces of physical evidence (drugs, a gun, stolen property, etc.), that too can potentially be excluded from evidence.

 

Next up – part 3 in the series – waiving or invoking your rights.

 

Joe Dane, Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600

Miranda and making a statement to police – Part 1 of a series

Miranda rights in criminal cases

 

This is the first part of a series I decided to write regarding the Miranda rights and talking with the police… or more importantly, NOT talking to them.

 

First, the law of Miranda:

In 1966, the United States Supreme Court decided the now-famous Miranda decision (384 U.S. 436).  It set out the rules that now a person who is in custody and being interrogated by the police must be informed of their constitutional rights before any resulting statement can be used against them in court.  That decision doesn’t set out any particular language of the rights that must be given, but there are the four components and they usually go something like this:

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to an attorney before and during any questioning
  • If you cannot afford an attorney, one will be appointed free of charge

The Fifth Amendment

Those rights come from both the Fifth and Sixth Amendments of the US Constitution.  The Fifth Amendment protects your rights against self-incrimination.  That means that you don’t have to say something that incriminates you – in other words, gets you in legal trouble in a criminal case.  The Miranda decision includes the first two warnings that a person does have that right to not incriminate themselves by talking and that if they do talk, any statement could come back to bite them in court.

The Sixth Amendment

The last two parts are from the Sixth Amendment.  Again, the Miranda decision included the necessity that a person being questioned be advised of their right to representation as guaranteed in the Constitution.  Because custodial questioning is considered an important stage of the criminal process, a person is entitled to the assistance of counsel.  Because it’s such an important constitutional right, the right of an appointed attorney – free if the person cannot afford one – is guaranteed.

The way it is worded above is the generally accepted way the rights are given.  However, as long as the police don’t undermine to change the importance of the warnings, they don’t have to stick to that script word for word.  They can clarify if necessary, use different words or explain in clear language what those rights mean.  They typically stick to the script though since they’re widely accepted and don’t want an argument that they altered, lessened or changed the rights.

Do you understand?

Along with giving the rights, the police must demonstrate that you waived your rights before the statement can be used in court.  The court must be satisfied that you made a knowing, intelligent and voluntary waiver of your rights.  (The specifics of waiving or invoking rights will be discussed in greater detail in part 3 – coming soon)

To try and show that you were advised and understood your rights, they will ask in one of two ways.  Some officers and some departments will ask “Do you understand” after each of the four rights.  They’ll say, “You have the right to remain silent.  Do you understand?” and wait for your response before going on to the next.  Others will read all four parts of the rights and ask one question at the end, such as “Do you understand each one of those rights?” or “Do you understand those rights?” or simply “Do you understand?” They must get an affirmative (yes) response to show you were advised of the rights and acknowledged that you understood them.

 

Now, it’s the subject’s turn

Once the police have given the rights, they have gotten an acknowledgment that the person understood their rights, it now shifts to the subject.  Do they want to talk or not?

 

Before we get to whether a person wants to waive those rights or invoke them, a discussion about when the Miranda rights even apply.  See part two – Miranda rights and questioning… when it applies

 

Joe Dane

Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600

What is the entrapment defense?

Does entrapment still exist?

Absolutely.  It’s an affirmative defense, meaning the defendant bears the burden of proving by a preponderance of the evidence that they were entrapped.  A preponderance means the defendant must convince the jury that it is “more likely than not” that they were entrapped.

Entrapment is when law enforcement officer (or their agent) engages in conduct that would cause a normally law-abiding person to commit the crime.  A person is an “agent” of the police when they do something at the request, suggestion or direction of an officer.  The person doesn’t have to know they’re doing something for an officer or that they were acting as a police agent.

What sort of conduct would be entrapment?

The examples from the jury instruction on entrapment include “badgering, persuasion by flattery or coaxing, repeated and insistent requests or an appeal to friendship or sympathy.

The other example is conduct by the officer that would make commission of the crime unusually attractive to a normally law-abiding person. That can be things like a guarantee that the conduct is not illegal or that it would go undetected, an offer of extraordinary benefit or other similar conduct.

However, if an officer simply gives the defendant an opportunity to commit the crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps, that is not entrapment.

The jury is to focus on the officer’s conduct primarily, but they must look at all the circumstances as well. They should look at the defendant’s actions before, during and after the acts, the defendant’s responses to the officers urging along with the seriousness of the offense.

Keep in mind – entrapment is conduct by officers that would convince a normally law-abiding person to commit the offense. If there is evidence of particular intentions by the defendant, a prior predisposition to commit the offense, etc – that can be considered.  For example, a conviction for the same offense in the past may be enough to show that the defendant was predisposed to commit the crime and it didn’t take undue convincing, coercion or entrapment by the police to get them to commit the offense.

Many agencies are audio and video recording all their officers, both street patrol and investigations and sting operations.  A thorough review of all the evidence would be necessary to determine if entrapment is a viable defense for you in your case.

To discuss your case and any defenses further, give me a call or send an email.

Joe Dane

info@joedane.com

714.532.3600

Shoplifting and loss prevention officers – possible defense to shoplifting cases

Can the conduct of the loss prevention personnel from the store be a defense in your case?

In any theft case, you absolutely must have an attorney representing you.  Although initial punishment may not be severe for a first time offense, the long-term consequences can be quite harsh.  Avoiding a conviction if at all possible should be your goal.  There may be factual defenses (they can’t prove the elements of the offense such as no merchandise was recovered or you didn’t exit the store), legal defenses (Miranda issues with your statement to the police) or other defenses.

The store personnel (loss prevention, security or whatever other label they’re using) aren’t held to the same search issues as the police are under the Fourth Amendment.  A search by a private person that would have been illegal by law enforcement may be legally admissible if done by a private citizen such as the store security.  That doesn’t mean they can do whatever they want, however.

The store security must still follow the law

In my experience, there is one particular store that is notorious for doing things improperly. (Others do it, as well, too)  Often times, they will look through the slats in the door into the dressing rooms. They’re not shy about it either. They’ll write in their report that essentially, they spied on you in the changing room. That’s nice, but totally illegal.

Penal Code section 647(k)(1):
Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, or camcorder, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments.

It’s a misdemeanor for them to look into a private area such as the dressing rooms. There’s no “theft prevention” exception. They’re invading the privacy of anyone in the dressing room. If push comes to shove, their witness from the store may have to take the Fifth Amendment and decline to testify unless granted immunity by the prosecutor. Otherwise, if they testified that they looked into the fitting room, they’d be admitting to a misdemeanor and subject to prosecution.   With no witness, they don’t have a case.

I can only imagine how many times a day they do this… and are wrong.

When we meet to discuss your case, we can talk about all aspects of your case – the store personnel, the police… everything.

Joe Dane

info@joedane.com

714.532.3600

 

For more information, see these links:

Shoplifting FAQs (with video)

Is a petty theft charge a big deal?

Shoplifting and theft defenses

Difference between grand theft and petty theft

 

Caught shoplifting, but police were not called. Do I have to pay a fine?

I have been asked many times about this exact scenario.  You were caught or detained for shoplifting, but they did not call the police.  They said you’d get a letter in the mail with a fine that you had to pay.  What is that? Do you have to pay them?  Can they still call the police and press charges later?

Can the store still “press charges” for shoplifting if they didn’t call the police when it happened?

If the police weren’t called initially, the odds are very much in your favor that there will be no criminal charges and therefore nothing on your record to deal with. Could they call the police and make a police report later? Sure, but that is by far the exception to the rule.  Keep in mind that the store cannot “press charges” – only the District Attorney or City Attorney can file criminal charges.  All the store could do would be to make a police report that may get forwarded to the prosecutor’s office for review and the possible filing of charges, but the store cannot directly file criminal charges against you.

They said I had to pay a fine. 

The “fine” they’re referring to is a civil demand letter. The Penal Code authorizes a merchant to “demand” up to $500 plus costs in a shoplifting incident. The store itself may send something from their “legal department” or they may contract with one of a few law firms that handle these situations. These firms are typically out of state and only have a local attorney’s name on their letterhead as “of counsel” so they can legally make these demands in California.

There was one particular firm out of Florida that was quoted in the Wall Street Journal as saying they send out over a million of these “demand” letters a year. Of those, they filed less than 10 lawsuits. Not 10 percent. Not ten thousand. Ten. The odds are overwhelming that if you just ignore their demands, nothing will come of this. They may send several letters, each sounding more intimidating and with increasing amounts they’re asking for. If you keep ignoring them, they have to make a choice – let it go (they almost always do) or actually follow through.

What’s their option if they really want to go forward? Small claims court. Here’s the thing though… attorneys cannot and do not get involved in Small Claims cases. So – these law firms are essentially all bark and no bite. In fact, some advertise their services on their websites as “litigation free” collections. That’s code for “we don’t actually sue people.” Instead, they operate on volume and intimidation, hoping people will just send in the hundreds of dollars they’re asking for. Some people pay thinking it will make a criminal case go better (it won’t necessarily) or that they “have” to (you don’t).

I’ve personally never heard of anyone actually being sued for ignoring the civil demand letters. If you are that one in a million and they do file a small claims case against you, you can always settle then. Or… you can go to trial and make them prove their damages. I assume they got all the merchandise back undamaged, put it right back on the shelf and aren’t really out any money aside from the time it took the store personnel to deal with you. What’s that? Maybe a couple of employees wages for a couple of hours? Can they get filing fees against you? Sure. Even if you went to trial and lost, the amount you’d be ordered to pay will in all likelihood be far less than they’re demanding in their letters.

I participate in several state-wide and national online forums for attorneys.  The overwhelming consensus is to ignore these letters. They may send a few and may even call you if they have your phone number. Screen your calls and ignore the letters. It costs that law firm to send out the letters – and that comes out of their cut of any money sent in – so they won’t waste too much on you if you don’t respond.

Should you get one of these demand letters and you still have questions, a phone call or face to face meeting with a local criminal defense attorney will probably set your mind at ease as you continue to ignore the demands.

Don’t ignore everything though…

Be sure you know what you’re ignoring though. If you do get something from either the District Attorney, City Attorney, the police department or the court, don’t ignore those. That means there is in fact something going on that you have to deal with. If you are charged, it’s time for a lawyer. If you’re under investigation, it’s also time for a lawyer and to keep your rights in mind – say nothing to anyone about this except your attorney in confidence.

If theft charges are filed against you…

Now, it’s time for action.  A theft conviction can have lasting, negative consequences.  Even in the face of strong evidence against you, there may be legal, factual or other defenses.  Our goal is to help you avoid a conviction if at all possible.  If charges are filed, it’s time for a lawyer.  Give me a call or send an email to discuss your case.  We can set up a time to talk and discuss what your options are and how best to proceed.

Joe Dane

info@joedane.com

714.532.3600