CHICAGO POLICE DIDN’T READ ME MY RIGHTS?

Hold up. What? Case dismissed!!! You probably even have a lawsuit.

If it were only that easy. Sadly, Miranda warnings protect your to remain silent, not innocent.

The most important thing to remember about Miranda is that it only applies to your statements.

What does this mean for your case?

IF THEY DON’T NEED YOUR STATEMENTS, MIRANDA DOESN’T MATTER

Maybe it comes from watching too many episodes of COPS or Law & Order, but the failure to read you your Miranda doesn’t throw out your case, only your statements. If the crack is in your pocket, it’s in your pocket, no matter what you say. A drunk prosecutor doesn’t need your statements to prove that case.

Simply put, if the State has enough evidence to prove their case beyond a reasonable doubt, it won’t matter if they didn’t read your Miranda rights. Think: it’s on video, witnesses, forensic evidence, etc. Your statements might be relevant for your defense, but the State won’t need them for your demise.  This is when you need to call a confident, experienced criminal defense attorney.

WHEN DOES MIRANDA MATTER?

The failure to read you your Miranda rights will only help your case if:

1. Your statements are necessary evidence for the State’s case &
2. You are:
   1. “In custody” &
   2. Being Interrogated.^[1]

The law defines “custody” as a formal arrest or “restraint on freedom of movement to the degree associated with formal arrest.”^[2] “Interrogation” refers to “Express questioning” as well as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are likely to elicit an incriminating response.”^[3]

But how do these concepts apply in real life situations? How does Miranda generally apply in common types of police encounters? When do the cops have to give you Miranda warnings?

• ORDINARY TRAFFIC STOPS: NO
  • Generally speaking, even though you are technically detained and not free to leave, when it comes to your regular, run of mill traffic stop (“think: “license and registration”) Miranda warnings are not required.^[4]

• WHAT IF THEY ORDER ME OUT OF THE CAR?
  • NO: Miranda warnings are not required before the police order you out of a vehicle. The police can legally ask anyone to exit a vehicle during a traffic stop.^[5]

• WHAT IF THEY SEARCH MY CAR?
  • NO: If the police have probable cause to search your vehicle (for example it smells like marijuana) they can prolong that detention until the search is completed. They do not need to advise you of your Miranda rights before searching a car based on probable cause. Nor do they need to do so if you consent to a search. In neither of these situations are you technically “in custody” or being subject to “interrogation.”

• WHEN DO THEY HAVE TO GIVE ME MIRANDA AFTER A TRAFFIC STOP?
  • Miranda warnings are only required in a traffic stop when it limits the suspect’s freedom of movement to a “degree associated with a formal arrest.'”^[6]

• If the traffic stop results in a formal arrest, Miranda warnings should be given….but are only necessary if the police want to question you.

• DUI investigation: NO
  • Prior to field sobriety tests: NO^[7]
  • Prior to Breathyler:
    • PBT- roadside: NO
    • At station: NO
      • Breathalyzer evidence is not considered “real or physical evidence” and not statements. As such, Miranda does not apply.^[8]

• Street Interactions: NO
  • Terry stop: If the police think you’re armed and engaged in criminal activity, they can stop you, no Miranda ^[9]
  • Consensual encounter: When the police approach you on the street, Miranda is not necessary. Whether the police stop you on the street on suspicion of a crime, or just to have a casual conversation, you are not in custody & Miranda will not apply.
  • When does it apply on a street stop? When the stop turns into a formal arrest.

• General/On scene Questions: NO
  • Miranda warnings are not required when “the police conduct a general on-the-scene questioning as to facts surrounding a crime.”^[10]

• Spontaneous Statements: NO
  • Miranda only applies to questioning. Spontaneous statements are, by their nature, not in response to questioning, and therefore do not trigger Miranda
  • Mouthing off in the back of the squad car? Yelling stuff in at the police station? Goodbye

• Serving Search Warrant: MAYBE
  • If you were questioned: YES^[11]
  • If you were just detained, and not questioned, prior/during/after the search: NO

• Police station questioning:
  • After arrest: YES
  • If you AGREE to come to the station for questioning: NO^[12]
    • Which is why you never go in for questioning by the police voluntarily without a criminal defense lawyer.
    • Remember, if the police “ask” you to come to the station for questioning, you don’t have to.

• If you are not a US Citizen: YES
  • Miranda rights protect every person subject to US law.^[13]

• IF YOU ARE A VICTIM OF POLICE BRUTALITY:
  • NO-MIRANDA DOESN’T MATTER:???? Wait…
  • Don’t worry, if you are a victim of police brutality, Miranda isn’t required because your statements are not voluntary. Involuntary statements violate the 5th amendment. In these situations, your statements cannot be used against you.

The key to any question about whether Miranda warnings are required is: Custody + Interrogation. Whether or not your are in custody, rather than just detained or generally interacting with the police, is not always clear. In these cases, a Judge will consider the following factors to determine whether or not you were “in custody:”

• (1) the location, time, length, mood, and mode of the questioning;
• (2) the number of police officers present during the interrogation;
• (3) the presence or absence of family and friends of the individual;
• (4) any indicia of a formal arrest procedure, such as the show of weapons or force, physical restraint, booking or fingerprinting;
• (5) the manner by which the individual arrived at the place of questioning; and
• (6) the age, intelligence, and mental makeup of the accused.”^[14]

You have a 5th amendment right to remain silent, whether or not you are under arrest.  Unfortunately, you don’t always have to be told that. Statements or no statements, the most important right you have is the right to a lawyer. When you have a lawyer, or even affirmatively request one, the police CANNOT QUESTION YOU.^[15] Forget the formula of custody + interrogation to figure out if the police didn’t do their job. Leave that to us. The best formula is lawyer, lawyer, lawyer. And at Robert Callahan & Associates, we know exactly what to say to the police: My client will be making:

NO STATEMENTS.

^[1] Miranda v. Arizona, 384 U.S. 420 (1965)

^[2] Id. at 429.

^[3] Rhode Island v. Innis, 496 U.S.291 (1980).

^[4] Berkemer v. McCarthy, 468 U.S. 420, 440 (1984)

^[5] Maryland v. Wilson, 519 U.S. 408 (1997).

^[6] California v. Beheler, 463 U.S. 1121, 1125 (1983).

^[7] Pennsylvania v. Muniz, 496 U.S. 582 (1990).

^[8] Id. at 591-592. Schmerber v. California, 384 U.S. 757, 761 (1966).

^[9] Berkemer, 468 U.S. at 439.

^[10] People v. Parks, 48 Ill. 2d 232, 237 (1971).

^[11] People v. Hannah, 991 N.E.2d 412, 427 (1st Dist. 2013).

^[12] United States v. Mathiason, 429 U.S. 492, 495 (1977).

^[13] U.S. Const. Amdt. XIV.

^[14] People v. Slater, 228 Ill.2d 137, 150 (IL SCT. 2008) People v. Melock, 149 Ill. 2d 423, 440 (1992).

^[15] Smith v. Illinois, 469 U.S. 91, 98 (1984); Edwards v. Arizona, 451 U.S. 477 (1981).

Robert J Callahan
53 W Jackson Blvd #1442
Chicago, IL 60604

(312) 322-9000