miranda rights

[CdwJava]

It has nothing to do with what was in the officer's mind, and everything to do with the circumstances. If the circumstances were the equivalent of a custodial arrest, then custody may attach for purposes of Miranda. However, if they had enough to arrest you without your statement, it's a moot point.

I could argue that you were merely detained when you returned and that you were NOT in custody for Miranda purposes. What a court might say might vary.

- Carl

 

[mgomez41]

your aboslutely right

now i was reading conflix post about mirandas and its kind of hazy because wouldnt it make sense that if an officer has probable cause to arrest and most likely will but hasnt arrested u until u give ur statements could be considered

a miranda right violation because the argument that could be made is that there was sufficcient evidence for and arrest and the person commiting the crime will be in custody anyways so wouldnt the police officer have to mirandarize so the statementss u make or are going to be made can be used in court

now they might say how do u know that the police officer is going to arrest u well then u can say the police officer is usually required to make an arrest if the crime that is commited consist of an arrest and if he doesnt then wouldnt he not be doing his job correctly

its just my opinion and theres no legal basis only common sense i also may be wrong and if i am then give me an example or case file i can read

 

[CdwJava]

I have case law at the office, but the case is law is pretty clear that "custody" must be the equivalent of that used during a custodial arrest. I would bet that your situation would not apply. It might - the law can be hazy sometimes - but I suspect that the court would not see it as such.

But, ya never know.

And as for doing our jobs correctly, I can easily argue that making an arrest simply because you can might be doing the job IN-correctly. Making an arrest just because you can places an undue burden on prosecution at times. Probable cause does not equal custody, and not making an arrest because you can is lawful discretion and not dereliction of duty.

- Carl

 

[mgomez41]

I have case law at the office, but the case is law is pretty clear that "custody" must be the equivalent of that used during a custodial arrest. I would bet that your situation would not apply. It might - the law can be hazy sometimes - but I suspect that the court would not see it as such.

But, ya never know.

And as for doing our jobs correctly, I can easily argue that making an arrest simply because you can might be doing the job IN-correctly. Making an arrest just because you can places an undue burden on prosecution at times. Probable cause does not equal custody, and not making an arrest because you can is lawful discretion and not dereliction of duty.

- Carl

your right in the sense that yes u just cant make an arrest cause u want to but i clearly stated that if the officer has probable cause to make an arrest an their is sufficient evidence where the crime consist of an arrest if the police officer does not arrest wouldnt he not being doing his job right

were not talking about the officer doing the job incorrectly

there is evidence for arrest/ probable cause and the officer knows an arrest is going to be administered then wouldnt u agree that he would have to mirandarize because the statements are going to be use in court the police officer just cant outsmart the system by trying to interrogate the suspect before he tells the suspect he already has enough evidence for arrest he just needs his statements and hes gonna take them before hes "supposedly not in custody" those statements might be incriminating and add additional charges so he has to mirandarize doesnt he

and even if what the suspect says clears him do you believe the officer is going to go against the probable cause and evidence

 

[stephenk]

just because you felt compelled to go meet the officer in person still did not require you to say anything to the officer.

 

[mgomez41]

just because you felt compelled to go meet the officer in person still did not require you to say anything to the officer.

what was i suppose to do to me sorting this out is important when a police officer tells u hes going to issue an arrest warrant your options are limited eventually you have to go to court so either way i was screwed i joined the navy and any type of legal troubles i get into can disqualify me for joining so i have to be very careful this was only one of my options for dismissal i have 3 options and im exhausting each one.

i know this off-topic but what kind of legal training do police officers have besides knowing their states statues/laws

 

[LawGirl10]

your right in the sense that yes u just cant make an arrest cause u want to but i clearly stated that if the officer has probable cause to make an arrest an their is sufficient evidence where the crime consist of an arrest if the police officer does not arrest wouldnt he not being doing his job right

were not talking about the officer doing the job incorrectly

there is evidence for arrest/ probable cause and the officer knows an arrest is going to be administered then wouldnt u agree that he would have to mirandarize because the statements are going to be use in court the police officer just cant outsmart the system by trying to interrogate the suspect before he tells the suspect he already has enough evidence for arrest he just needs his statements and hes gonna take them before hes "supposedly not in custody" those statements might be incriminating and add additional charges so he has to mirandarize doesnt he

and even if what the suspect says clears him do you believe the officer is going to go against the probable cause and evidence

I understand why you are thinking this, but no, even if the officer has probable cause to arrest, he does not have to Mirandize you unless he arrests you (or equivalent of custody) AND he interrogates you. If both are not present, Miranda is not required. The case law from the U.S. Supreme Court is clear on this. States may decide to give you more protection, however, most do not in this case.

Miranda requirements can be explained with this: "The Fifth Amendment does not expressly contain a right to counsel. However, as a result of the Miranda decision, a suspect, even before adversary judicial criminal proceedings have commenced, is entitled to what may be best described as the Miranda right to counsel. This right attaches when a suspect is subjected to CUSTODIAL INTERROGATION. The purpose of this right to counsel is very narrow: to protect the suspect's privilege against COMPULSORY SELF-INCRIMINATION."
(Dressler, Understanding Criminal Procedure, third edition, page 429).

The point made there is that Miranda is used to protect a suspect's 5th Amendment rights against compulsory self incrimination. It must be compulsory (requiring custody) incrimination (elicited from interrogation). Just having the presence of probable cause, without an arrest, is not enough to invoke the concerns about compulsory self incrimination. The suspect is free to leave, even if the officer had probable cause at the time.
There are many reasons an officer may decide not to arrest at that time. However, it is very seldom that they are required to arrest just because there is probable cause.

 

[mgomez41]

thanx lawgirl for clarifying it a bit but yet my answer was not answered i cant see how probable cause works like i said if the police officer already knows hes not going to release the suspect w/out letting the suspect know does he still have to mirandarize him because yet the suspect might not know he is going to jail no matter what his statement is doesnt he still havr to be mirandarized because in the police officers mind ( i know proving what the police officer is near impossible) hes already in custody why wouldnt probable cause be sometimes a violation if that probable cause is going to put u in custody sometimes let me try this example

a police officer is called to a scene where someone was killed a neighbor see's two men leave the household the police officers catches up with the suspects now im pretty sure any cop in the right mind would take this guys in because there suspects in a murder now the probable cause being the neighbors testimony the police officer questions the suspects before their in custody without mirandirizing them the cop being smart just for purposes in this example then mirandarize's them after the cuffs are on now would those previous statements be in violation yes or no they werent in custody but were going to be so hows that different being in custody and not knowing your going to be in custody how would miranda apply

yes yes someone might mention it again miranda is for purposes of interrigation in custody to protect frrom self-incrimintion but still im a bit confused couldnt probable cause be used in some way to say there was a violation commited

im just trying to understand miranda if u guys can clarify the custody situation a bit more and like ive said before these are just my thoughts and opinions so i know sometimes im wrong

 

[LawGirl10]

thanx lawgirl for clarifying it a bit but yet my answer was not answered i cant see how probable cause works like i said if the police officer already knows hes not going to release the suspect w/out letting the suspect know does he still have to mirandarize him because yet the suspect might not know he is going to jail no matter what his statement is doesnt he still havr to be mirandarized because in the police officers mind ( i know proving what the police officer is near impossible) hes already in custody why wouldnt probable cause be sometimes a violation if that probable cause is going to put u in custody sometimes let me try this example

a police officer is called to a scene where someone was killed a neighbor see's two men leave the household the police officers catches up with the suspects now im pretty sure any cop in the right mind would take this guys in because there suspects in a murder now the probable cause being the neighbors testimony the police officer questions the suspects before their in custody without mirandirizing them the cop being smart just for purposes in this example then mirandarize's them after the cuffs are on now would those previous statements be in violation yes or no they werent in custody but were going to be so hows that different being in custody and not knowing your going to be in custody how would miranda apply

yes yes someone might mention it again miranda is for purposes of interrigation in custody to protect frrom self-incrimintion but still im a bit confused couldnt probable cause be used in some way to say there was a violation commited

im just trying to understand miranda if u guys can clarify the custody situation a bit more and like ive said before these are just my thoughts and opinions so i know sometimes im wrong

Probable cause does not enter into it. The only issue is custody (and then, interrogation). It is a highly specific fact inquiry and the officer's subjective beliefs don't enter into it. The test whether a reasonable person (not just you) in the position of the suspect would believe they were not free to leave. Because it is a reasonable person test, you can't just say that you beleived you were in custody, therefore Miranda was required. It is an objective inquiry.

Also, you need to take into account that officers can often detain a suspect (and in reality, they are not free to leave), but that is still not custody for purposes of Miranda. Detention is not the equivalent of custody.

As for your situation, Carl gave you a scenario of how it could be looked at from both sides. Your attorney will need to argue whether or not custody really occurred.

As for your scenario:
"a police officer is called to a scene where someone was killed a neighbor see's two men leave the household the police officers catches up with the suspects now im pretty sure any cop in the right mind would take this guys in because there suspects in a murder now the probable cause being the neighbors testimony the police officer questions the suspects before their in custody without mirandirizing them the cop being smart just for purposes in this example then mirandarize's them after the cuffs are on now would those previous statements be in violation yes or no they werent in custody but were going to be so hows that different being in custody and not knowing your going to be in custody how would miranda apply"

If the officer questions them before they are in custody, Miranda is not required. But, there is a fine line between detention and Miranda. The question is at what point detention turns into custody. A lot of factors can affect that determination. It does not matter if the officer had probable cause. The only factors that matter are custody and interrogation.

 

[conflix]

and not making an arrest because you can is lawful discretion and not dereliction of duty.

- Carl

Carl, specifically, in the Great State of California, what type of offenses (traffic infraction, violation, misdemeanor, felony) are police officers lawfully permitted to use discretion when deciding who they want to arrest and who they do not want to arrest?

 

[conflix]

now i was reading conflix post about mirandas and its kind of hazy

Hmmmm…Okay, I’ll play.

If you are referring to my comments in the padlocked Miranda thread I started, I have to agree. I did not do a very good job of getting my point across in the original post…though thru follow up posts I believe I clearly made the point I was trying to make in the 1st post in the other Miranda thread.

If you take the time to peruse the case law Lawgirl was kind enough to post in the other Miranda thread you will see the detective in that case did exactly what I claimed should be done when a person not in custody makes an admission that amounts to probable cause that he committed a crime.

mgomez responding to another poster:

your right in the sense that yes u just cant make an arrest cause u want to but i clearly stated that if the officer has probable cause to make an arrest an their is sufficient evidence where the crime consist of an arrest if the police officer does not arrest wouldnt he not being doing his job right

In the State of New York a police officer could be severely disciplined or fired if he does not make an arrest for on offense (other than traffic infraction) defined in the NYS Penal law. In NYS a police officer can be charged with a crime if he does not arrest a person who commits certain domestic violence law offenses.

Perhaps a police officer’s authority to makes arrests varies from state to state. But in NY, police officers have very little discretion. Which I think is a good thing. It lessens the likelihood that officers will abuse discretionary authority for their own benefit.

http://www.iespell.com/

 

[CdwJava]

your right in the sense that yes u just cant make an arrest cause u want to but i clearly stated that if the officer has probable cause to make an arrest an their is sufficient evidence where the crime consist of an arrest if the police officer does not arrest wouldnt he not being doing his job right

At least in California there is no law or agency policy (that I know of) that requires an officer to make an arrest if probable cause exists to make an arrest in any situation. We have a couple of SHALL ARREST laws dealing with domestic violence, but that's it. I doubt that such a law or policy exists in any state for all but a few specific criminal violations.

there is evidence for arrest/ probable cause and the officer knows an arrest is going to be administered then wouldnt u agree that he would have to mirandarize

Given current case law? No.

and even if what the suspect says clears him do you believe the officer is going to go against the probable cause and evidence

Sure. It happens all the time. Probable cause doesn't mean guilt. And probable cause does not mean "custody". There are many reasons not to make an arrest when there is probable cause to do so. Does it usually happen? Sure. Does it always happen? No.

- Carl

 

[CdwJava]

Carl, specifically, in the Great State of California, what type of offenses (traffic infraction, violation, misdemeanor, felony) are police officers lawfully permitted to use discretion when deciding who they want to arrest and who they do not want to arrest?

Specifically? All but PC 273.6 (violation of a DV TRO - a misdemeanor) ... this is a "shall arrest" statute. Even domestic violence is only a "pro arrest" violation where agency's are required to develop policies that encourage an arrest, but it is not required.

In all other offenses that I can think of off the top of my head, arrests are entirely discretionary unless mandated by department policy.

There may be one or two that I don't peruse regularly, but they aren't coming to mind at the moment.

Even so - probable cause does not equal custody. If you don't like it, call the USSC and argue with them.

- Carl

 

[CdwJava]

Perhaps a police officer’s authority to makes arrests varies from state to state. But in NY, police officers have very little discretion. Which I think is a good thing. It lessens the likelihood that officers will abuse discretionary authority for their own benefit.

Do you have a legal cite for this alleged removal of discretion? I'm told by some NY officers that this is not the case. I am waiting to hear from a couple NYPD contacts to see if they have a policy that removes discretion for criminal offenses, but there appears to be no state law on the matter.

- Carl

 

[mgomez41]

thanx guys yeah i understand how the law goes eventhough what im saying makes sense

under the way the miranda law is written probable cause is not considered custody but it damn well should be thats my opinion i dont know any normal person (except for lawyers) thats in front of a police officer and tells the officer i dont want to talk and just leaves cause most people arent familiar with law and the officer might say something to make the m think they're force to stay

u guys are the lawyers and officer and know way more than me and no point in arguin this im just basing it on what makes sense but hey that doesnt matter so oh well