This is basically what the rest of my post stated...
and as stated, if a subject is not free to leave, Miranda is only required if incriminating questions are going to be asked
When a cop says "please step out of your vehicle" or "may I search your vehicle?"
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and as stated, if a subject is not free to leave, Miranda is only required if incriminating questions are going to be asked
In my opinion, the fact that most cops know the enormous benefit of this ruling and would not want to lose this tool by abusing their authority. After handling hundreds or thousands of crack pipes, and the same amounts of bags of marijuana, they both have a very distinct feel. Something such as a lighter or pack of cigarettes also has a very distinct feel, and I would not want to mess this up by "mistaking" items for contraband.Then what would keep an Officer from immediately removing ANYTHING that he/she felt in a pocket under the pretext that they immediately recognized it through the sense of touch as an illegal item?
For instance, let's say they felt an item in my left pants pocket, and pulls it out: oh that's your car keys, sorry felt like a crack pipe to me when my hand brushed against it. Item in my right front pocket and pulls it out: oh that's a cigarette lighter, sorry, felt like a spring operated knife to me, but I am not allowed to manipulate the item in your pocket to find out. Item in my left shirt pocket, pulls it out: oh, pack of cigarettes, sorry felt like a package of powder cocaine to me. Right shirt pocket: bag of weed, BINGO, I knew that was a bag of weed as soon as my hand brushed against the outside of your pocket!
Deanimator
Member
It's dangerous to generalize across ALL of law enforcement, favorably or unfavorably.
Just like anybody else, LEOs have engaged in insanely irresponsible and self-defeating behavior, for reasons obvious as well as totally unknown except to the perpetrator. One common thread is that like with any other criminal or tortious behavior, the less the perpetrator thinks that there will be negative consequences, the more likely he is to transgress. If a recklessly risk taking LEO has violated the search and seizure laws and the 4th Amendment with a bunch of people (especially criminals) and gotten away with it, that reinforces that behavior. When he tries the same thing with an honest person who knows the law and is determined to hold him to it, things get ugly fast.
DaisyCutter
Member
Really? That's new to me.
I've arrested a hundred people I probably didn't read Miranda to.
I'm on patrol, I see a guy chugging a beer and walking down the street.
I snap a quick piccy with my digicam. Then I arrest him, and take him to jail.
I really don't give a flip what he has to say. I have ample evidence against him without an interview.
I book him and go catch another.
Miranda only applies if they are detained (not free to leave) AND being asked questions.
Countless crimes don't require Miranda. Driving on a suspended license, for instance. I take the driver to jail and staple a copy of his driving record (showing the suspension) to my report.
No questions, no Miranda.
On view alcohol and drug violations. Warrants... No Miranda.
I've heard rumors that Miranda may go away some day. There have been compelling arguments that Miranda is common knowledge to everyone, therefore it need not be repeated. Frankly, I've never been hindered by Miranda.
IF a driver is swerving, reeks of booze, and can't stand outside his car without swaying, then he's impaired and I'll arrest him for DUI, regardless of whether he consents to do FSTs, provide blood or breath samples, or tell me how much he's had to drink.
With an expensive enough attorney, even OJ Simpson ca slip criminal charges.
My job is to get the sucker off the road before he hurts an innocent. I've never been barricaded by lack of consent or Miranda.
Many people love to clown a cop. Cops deal with these tests every shift. Most cops don't get clowned the same way twice. Got something Smokie ain't seen? How original is your plan?
I've found dope hidden behind a colostomy bag.
Who can beat that?
I wonder if cops have their own tricks to get a search, or consent? How many of those tricks has the average person seen?
TexasRifleman
Moderator Emeritus
Be careful with that. It often happens that the LE will arrest, take you into custody, book you into jail etc long before you ever hear about your Miranda rights.
There isn't any "immediacy" to Miranda as far as strict time limits that I am aware of so there may be some delay between the moment you are placed under arrest and when you are told of your rights.
Reading off the card as the cuffs go on seems to only happen on television.
Seems to be the real world application of it anyway, from talking to LE folks over the years.
NavyLCDR
member
avs11054 said:
Seems like it could get really ugly in court.
Officer: "During the Terry Frisk I felt in the subject's pocket what I clearly and immediately could discern from my past experience was a bag of dope."
Subject: "I felt the officer hesitate on that particular pocket and he was moving the contents around, like he was trying to feel something."
Defense Lawyer: "Officer, how did you know it was a bag of dope? How did you discern that from a bag of candy, or a bag of legal medication or tobacco?"
It just seems to me like a more sound practice to obtain evidence during a Terry Stop would be, if the subject did not consent to the search,to stop and continue to detain the subject and attempt to obtain a warrant.
I do have to admit, though, I am just armchairing this and not in law enforcement or legal practice.
I also agree that Miranda is ONLY required when a subject is being questioned under suspicion of a specific crime. If hard evidence is found of a crime, and the suspect is being charged and prosecuted based on that evidence, there is no requirement for Miranda. Now, if a person is stopped for speeding, and the officer asks, "How fast were you going" and the subject says "60" (in a 45), AND the officer's radar is broken... then Miranda might be a defense.
The only problem with asking for consent as opposed to the terry frisk is that the frisk is done almost immediately after stopping a person, where consent, as stated throughout this thread, is likely to have issues with how consenual it actually is unless it is one of the last things done. If you were to stop someone, talk to them for a couple minutes, get their ID from them, take a few minutes to run them, and then give them their ID back, you've kind of lost your exigency to do a terry frisk. The defense would argue that why just before you released them did you feel your safety was in jeapordy and not the 5 minutes prior that you were with them.
Navy LT,
The quotes you give are exactly why some officers won't use 'plain feel' as a means to establish PC. That would be the exact conversation when the officer is on the stand. However, as for right now, the supreme court says officers are allowed to use it.
Navy LT,
The quotes you give are exactly why some officers won't use 'plain feel' as a means to establish PC. That would be the exact conversation when the officer is on the stand. However, as for right now, the supreme court says officers are allowed to use it.
Shadow 7D
Member
Lets just clear something up
So the cop says " do you mind if I just check you real quick to make sure you don't have a weapon or something dangerous on you that might hurt me"
Guy (or gal) kinda obliviously mumbles "OK"
and hence consents to being searched, with anything found being legal.
Terry: Officer says 'put your hand on the trunk of your car, do you have anything in your pockets that is going to poke me or will hurt me, do you have anything you want to tell me about now?'
No consent, limited to immediate danger 'weapons' etc.
So the cop says " do you mind if I just check you real quick to make sure you don't have a weapon or something dangerous on you that might hurt me"
Guy (or gal) kinda obliviously mumbles "OK"
and hence consents to being searched, with anything found being legal.
Terry: Officer says 'put your hand on the trunk of your car, do you have anything in your pockets that is going to poke me or will hurt me, do you have anything you want to tell me about now?'
No consent, limited to immediate danger 'weapons' etc.
a consenual search has to be given voluntarily and cannot be coerced. It is up to the officer to show the subject consented voluntarily and no coercion was used. A 'terry frisk' is done for the officers safety, AND ONLY FOR WEAPONS, but the officer must have articuable reasons as to why he is doing a terry frisk. Just by an officer saying 'put your hands on the car' and then patting you down does not make it lawful. Such reasons would include time of day, type of clothing the person is wearing, what the suspect is detained for, suspects actions and demeanor, the area of the stop, and other things.
where the officer can use other contraband found during the search is where minnesota vs dickerson comes into play.
where the officer can use other contraband found during the search is where minnesota vs dickerson comes into play.
NavyLCDR
member
^^^^^ I agree. (not that it counts for much!)
vanagon40
Member
There is no requirement that a suspect or person arrested ever receive the Miranda advisement.
The Miranda advisement is required only prior to custodial interrogation. If the suspect in not "in custody," no Miranda required. If there is no interrogation, Miranda is not required.
The remedy for failure to provide the Miranda advisement is that statements made in response to "custodial interrogation" will be excluded from the prosecution's case in chief.
There are exceptions to the Miranda requirements and statements taken without the proper Miranda advisement may be used for other purposes (e.g., impeachment).
Many criminal defendants are arrested and charged without ever receiving the Miranda advisement.
The Miranda advisement is required only prior to custodial interrogation. If the suspect in not "in custody," no Miranda required. If there is no interrogation, Miranda is not required.
The remedy for failure to provide the Miranda advisement is that statements made in response to "custodial interrogation" will be excluded from the prosecution's case in chief.
There are exceptions to the Miranda requirements and statements taken without the proper Miranda advisement may be used for other purposes (e.g., impeachment).
Many criminal defendants are arrested and charged without ever receiving the Miranda advisement.
cassandrasdaddy
Member
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and many a doofus has had that smirk wiped off his face when they learn the reality of miranda
Guillermo
member
The most powerful tool that a policeman has is his ink pen. And a dirty cop can ruin your life with one. (let's not pretend there aren't any)
Be polite but let them know in a non posturing way that you know the law and that you are not going to stand for any crap.
My way is as follows. (not that I have ever had to use it)
"officer, I have several cops in my family so I can understand your position, but I come from a family of lawyers and if I were to give up a civil right for the asking I would NEVER hear the end of it."
This way you are polite, you have family in the "brotherhood", you have free legal help, you probably know the law.
If anyone has a better way to refuse and not raise any hackles please chime in.
Be polite but let them know in a non posturing way that you know the law and that you are not going to stand for any crap.
My way is as follows. (not that I have ever had to use it)
"officer, I have several cops in my family so I can understand your position, but I come from a family of lawyers and if I were to give up a civil right for the asking I would NEVER hear the end of it."
This way you are polite, you have family in the "brotherhood", you have free legal help, you probably know the law.
If anyone has a better way to refuse and not raise any hackles please chime in.
NavyLCDR
member
wishin said:
Sure. Notice in my post I said charged and prosecuted based on hard evidence. Let's say a 19 year old gets pulled over for running a stop sign. Cop smells alcohol. Cop does a breathalyzer and subject blows a .15. Subject is arrested, charged, prosecuted and convicted without ever being mirandized (SP?). Why? Because the evidence, not testimony, convicted him. What would be the reason to mirandize him?
Now, let's say our subject is in hand cuffs, without Miranda, on the way to the cop shop. And the cop asks him, "So, how many did you have tonight?" and the kid says, "Oh, I don't know, 4 or 5 beers." That answer would not be able to be introduced as a confession because there was no Miranda warning given. But he could certainly still be prosecuted and convicted based on the breathalyzer.
Now, if the police questioned him, without Miranda, "Where did you get the alcohol?" and he said, "I got it from Joe Schmoe." The police could use his answer to go after Joe Schmoe, no problem. Without Miranda, what the police could NOT do would be to introduce our 19 year old subject's statement as a confession that he, himself obtained or purchased alcohol. But the DUI would still stand on the evidence of the brethalyzer and whatever else the officer observed and his testimony could still be used against Joe Schmoe (to the best of my understanding).
Now, let's say our kid, without Miranda, answers the cop, "I bought a six pack, had 4 of them." Without Miranda, cop asks, "Where are the other 2?". Kid says, in the back seat of the car. Cop goes and retrieves the 2 cans out of the back seat of the car. Aside from the search being legal or not (beyond the scope of this exact discussion), the 2 cans left could be used against the kid, because they are hard evidence... but his statement of "I drank 4" could not be used against him, without Miranda.
NavyLCDR
member
On which side? Defense or prosecution?
Miranda is one of those things sensationalized way too much by the media, IMHO. As is the Terry Frisk when you see the cop taking everything out of the subjects pockets and putting them on top of the car: keys, wallet, cigarettes, bag of weed..."Oh, what's this here!"
Deanimator
Member
You don't need to explain or apologize for anything.
You just need to know and obey the law.
You can be formally polite without being obsequious.
I have zero desire to socialize or interact with police, especially involuntarily, so it's going to be minimal communications at most.
Art Eatman
Moderator In Memoriam
And this has wandered away from the opening question...
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