miranda rights

[seniorjudge]

...any normal person (except for lawyers)....

I have never met a normal lawyer.

 

[mgomez41]

I have never met a normal lawyer.

lol

very true my bad

 

[conflix]

Carl wrote:

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 would you please cite one specific instance where Californis law authorizes a police officer NOT to arrest a person after that person admits to the officer that he committed a criminal act(s) defined in the California State Penal Code?

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 would you please offer one example where a police officer is authorized by law to use discretion and not arrest a person who admitted to the officer that he engaged in conduct proscribed by California State laws?

Carl, in the state of California, if a citizen approaches a police officer, claims he is a victim of a crime, and paints a picture in words that amounts to probable cause that a crime was in fact committed, does the California police officer HAVE a duty to record the citizen’s complaint?

 

[conflix]

Do you have a legal cite for this alleged removal of discretion?

- Carl

No Carl, I do not have a legal reference other than what my NYPD academy law instructor told me. He instructed the class that the NYS legislature authorizes police officers to use discretion ONLY when investigating offenses known in NYS a "traffic infractions."

He went on to say if a police officer does not take lawful action in investigations involving offenses other than "traffic infractions," he had better have a good reason or he could find himself in the departmental trial room fighting to keep his job.

While I cannot recall any specific incident where a police officer was fired for not making an arrest, I know of at least two officers who were suspended and fined thousands of dollars for not making an arrest when a civilian made a substantiated complaint against them for not taking action on their criminal complaint.

I'm told by some NY officers that this is not the case.

Okay Carl, you claim “some” NY officers you spoke with told you after they have established probable cause that a person has committed a crime, they have discretion to decide who they want to arrest and who they do not want to arrest.

Carl, I’d like to know what the “other” NY officers you interviewed had to say regarding this topic?

 

[CdwJava]

Carl would you please cite one specific instance where Californis law authorizes a police officer NOT to arrest a person after that person admits to the officer that he committed a criminal act(s) defined in the California State Penal Code?

The law authorizes under what circumstances we MAY impinge upon an individuals freedoms - not when we may not. In every state I know of, the law allows officers wide discretion with VERY FEW exceptions. You still have not cited the NY state law that you say exists requiring officers to make an arrest when probable cause is present.

CA's laws of arrest can be found under PC 836 et seq.. You can look them up for yourself.

I can cite oodles of examples from traffic infractions, to misdemeanor battery, and even homicides where an officer is not required to make an arrest even when probable cause exists to do so, but I cannot cite law authorizing us NOT to make an arrest because no such law exists. The laws here exist to authorize us to MAKE arrests.

Carl would you please offer one example where a police officer is authorized by law to use discretion and not arrest a person who admitted to the officer that he engaged in conduct proscribed by California State laws?

See above.

Carl, in the state of California, if a citizen approaches a police officer, claims he is a victim of a crime, and paints a picture in words that amounts to probable cause that a crime was in fact committed, does the California police officer HAVE a duty to record the citizen’s complaint?

No. We are under no legal obligation to take the report.

However, the head of an agency that refuses such a report on a regular or even semi-regular basis is not likely to last long. But there is no legal requirement for the police or anyone to - in general - accept a report of a crime or even record it.


- Carl

 

[CdwJava]

No Carl, I do not have a legal reference other than what my NYPD academy law instructor told me. He instructed the class that the NYS legislature authorizes police officers to use discretion ONLY when investigating offenses known in NYS a "traffic infractions."

Interesting. So ... you are an NYPD officer?

I don't know that such a law does NOT exist, but I have yet to find any proof that it DOES exist.

He went on to say if a police officer does not take lawful action in investigations involving offenses other than "traffic infractions," he had better have a good reason or he could find himself in the departmental trial room fighting to keep his job.

The department policy may be one that requires them to take action - many agencies do just that ... require officers to take some action - especially in certain instances. But policy should not be confused with the law.

My department has a pro-arrest policy on DV. If we have probable cause to make an arrest for felony domestic violence we MUST do so or be able to articulate good cause as to why we did not. State law does not say this, department policy does. But state law permits us to make the arrest based on this strict standard per PC 836 and PC 13700.

While I cannot recall any specific incident where a police officer was fired for not making an arrest, I know of at least two officers who were suspended and fined thousands of dollars for not making an arrest when a civilian made a substantiated complaint against them for not taking action on their criminal complaint.

And in CA it is a crime for an officer to not accept a citizen's arrest. This is not true of a cold report. If someone demands another be arrested at the scene or proximtae to an event for which they believe the suspect is guilty, we are legally obligated to make the arrest. If NYS has expanded upon this to include any report by an individual, I don't know. But I doubt that if Johnny Smith says Sam Doe slapped him yesterday that the police are going to be required to arrest Sam Doe even if he says he slapped him.

Carl, I’d like to know what the “other” NY officers you interviewed had to say regarding this topic?

To be specific I have exchanged comments on this subject with three. All three have said that they DO have discretion whether to make an arrest under most circumstances. What the exceptions are, I don't know.


- Carl

 

[mgomez41]

edit post last post

 

[mgomez41]

And in CA it is a crime for an officer to not accept a citizen's arrest. This is not true of a cold report. If someone demands another be arrested at the scene or proximtae to an event for which they believe the suspect is guilty, we are legally obligated to make the arrest.
- Carl

That is the same case here in arizona now since it would be illegal for you not make a citizen's arrest then when u take the suspects comments wouldnt you say that u have to mirandarize him because hes going to be in custody

 

[CdwJava]

That is the same case here in arizona now since it would be illegal for you not make a citizen's arrest then when u take the suspects comments wouldnt you say that u have to mirandarize him because hes going to be in custody

No since CUSTODY had not occurred yet. Probable cause does not equal custody.

I might be careful in the vein of questioning and keep the questions to investigative and general queries, but until custody exists, Miranda does not necesarily apply.

However, every instance must be evaluated on the totality of the circumstances by a court.

- Carl

 

[mgomez41]

No since CUSTODY had not occurred yet. Probable cause does not equal custody.

I might be careful in the vein of questioning and keep the questions to investigative and general queries, but until custody exists, Miranda does not necesarily apply.

However, every instance must be evaluated on the totality of the circumstances by a court.

- Carl

so you as an officer would make sure that your questiniong fits in to a way were a miranda vioation does not occur how funny thats like basically going around the system im sure like u said its base on the totality of the circumstances and this argument has a chance of holding up in court

 

[CdwJava]

so you as an officer would make sure that your questiniong fits in to a way were a miranda vioation does not occur how funny thats like basically going around the system im sure like u said its base on the totality of the circumstances and this argument has a chance of holding up in court

ANY argument has a chance to hold up in court ... heck, I have a CHANCE of becoming president of the United States. However, the likelihood of either is slim. But, ya never know.

- Carl

 

[mgomez41]

So now your being a smart ass oh well typical of police officers they got huge ego's so i can understand that defeat is not an easy thing

thanx for the info i dont want to be here for ever

 

[CdwJava]

So now your being a smart ass oh well typical of police officers they got huge ego's so i can understand that defeat is not an easy thing

thanx for the info i dont want to be here for ever

I wasn't trying to be a smart ass ... sorry you interpreted it that way. Unless you really think I can be president some day, your argument is slim ... maybe not as slim as my presidential aspirations, but slim nonetheless. But, as I mentioned, ya never know. Courts (judges) tend to have opinions on this sort of thing, and some are more liberal than others.

And I don't know what "defeat" YOU are talking about ... "probable cause" does not equal custody. It's just that simple.

And there is an element of iranda regarding detention interrogations that involve questions of a general nature and those of a specific and incriminating nature. To avoid a potential Miranda argument, it is a good idea to leave the questions broad in a detention: "What happened?" is better than, "Did you hit him without any reason?" That kind of thing.

- Carl

 

[mgomez41]

I wasnt specifically talking about my case i was referring to what u said which was that your legally abided to do a citizens arrest which means that you have to arrest on probable cause and what i said was that a person should be mirandarized because i know no matter what said that a person is basically in custody when their being interrogate wheter the custody is formal or not that person cannot leave from you and u have to do your job so if the suspect tries to leave then u have to apprehend cause its the law as u said and if thats not considered custody then i dont know what is

i apologize for having such an attitude but some police officers (not specifically you) think than they are very knowledgeable about the law and sometimes try to go around it or use it for their own benefit and that pisses me off just because your an officer does not mean your above the law

 

[CdwJava]

I wasnt specifically talking about my case i was referring to what u said which was that your legally abided to do a citizens arrest which means that you have to arrest on probable cause

No, I have to accept the citizen's arrest ... it's not the same as my having probable cause. There is a legal distinction. In fact, while I have to accept the arrest I can still still release due to a lack of probable cause.

and what i said was that a person should be mirandarized because i know no matter what said that a person is basically in custody when their being interrogate wheter the custody is formal or not that person cannot leave from you and u have to do your job so if the suspect tries to leave then u have to apprehend cause its the law as u said and if thats not considered custody then i dont know what is

The courts have defined "custody" for the purpose of Mirnada as being that associated with a custodial arrest. Being called back to the scene, returning, and talking to the police won't likely qualify. It MIGHT when all the facts are evaluated, but it most likely won't. However, none of us here are privy to al the details.

me off just because your an officer does not mean your above the law

I never said I was, or that any officers were.

Look, there is very little legal issue that is black or white. There are issues that tend to fall one way or another, but there are exceptions for everything. At a recent legal training I attended we were shown training videos and evaluations on a variety of custody and detention issues ... in one, there were 22 lawyers (DAs, judges and defense attorneys) as well as more than a dozen officers ... there were more than half a dozen opinions as to when a detention, an arrest, and an interrogation occurred (most were pretty clear on some of the issues but divided on others). However, the videos in this case were designbed to be fuzzy and to encourage discussion ... so the fact that there was so much diverse opinion was not a surprise.

Some issues are far more clear than others. Miranda can sometimes be a fuzzy issue when it comes to custody as it is open to state interpretations and judge's opinions. Some judges won't see custody unless they are in cuffs and in the back of a patrol car ... I have known others that see even some detentions as "custody." However, I have yet to ever see one that says that probable cause is custody.

- Carl