By Andrew Bell, faculty member, Criminal Justice with American Military University and Bruce Razey, 35-year police veteran
Understanding how and when to apply Miranda can be problematic for some police officers. Much of the confusion is the direct result of the entertainment industry. We frequently hear an officer read Miranda rights to an individual he/she just took into custody to transport to the detective. TV shows and movies would have you think an officer is in the wrong for failing to read an arrestee’s rights. In reality, there are specific circumstances that must be met in order for an officer to be required to read someone Miranda rights.
[Related: Back 2 Basics: When Must Police Give Miranda Warnings?]
The Miranda Rule is the requirement set by the U.S. Supreme Court in Miranda v. Arizona (1966) to protect a person from self-incrimination. It requires that prior to the custodial interrogation of a person suspected of a crime, the police must read the person his/her rights. Those rights include the right to remain silent, the right to an attorney to be present during questioning, the right to be told anything they say can be held against them, and if they cannot afford an attorney, one will be appointed to them at public expense to be present with them before and during any questioning. Therefore, both custody and interrogation are the requirement for giving the suspected criminal his/her rights.
Custody and Interrogation
An officer transporting a suspect for a detective certainly has custody of the suspect, but is not involved in the interrogation. Officers will ask questions, but those questions merely account for basic information such as name, address, and date of birth. An officer must never ask a suspect in custody questions related to the crime, unless he/she is the detective charged with the investigation. In that case, Miranda is required.
[Related: The Use of Deception During Police Interrogations]
Additionally, determining whether someone is in custody, which means they are not free to leave, requires the application of the “Reasonable Person Rule.” For example, if an officer puts handcuffs on a person and places him in the police car, a reasonable person observing the interaction would certainly believe the person was in custody. However, what if an officer approaches a man mowing his lawn and initiates a conversation with him? In that situation, no reasonable person would believe the man mowing his lawn was in custody. The following scenario should make the aforementioned comments clear.
An officer, with an arrest warrant in his pocket, meets a suspect in his front yard and asks him about a crime. The officer does not tell the suspect he is under arrest and the suspect does not know the officer has an arrest warrant for him in his pocket. During the conversation, the suspect confesses to the crime. The officer then places the suspect under arrest and asks no further questions. In this case, Miranda was not required because a reasonable person would not believe the man was in custody during the conversation.
Officers must also understand that the Miranda Rule is time specific. Whenever the Miranda Rule applies, the officer must read the Miranda rights before asking questions about a crime. If the officer conducts an additional interrogation, say five days later, he must again read the suspect his rights provided the suspect is still in custody.
Traffic stops are generally considered temporary detentions and not custodial. On a routine traffic stop, an officer may ask the driver and/or passengers if there are any guns or illegal drugs in the vehicle. In this instance, the Miranda Rule does not apply because custody of the occupants was not established. However, if during the traffic stop, multiple officers show up with guns drawn, order the occupants out of the vehicle, and handcuff them, the Miranda Rule would certainly apply before any interrogation.
To encourage cooperation, experienced detectives learn to avoid custodial encounters with potential suspects whenever possible. A visit to the suspect’s home or workplace can be productive for a non-violent crime. Detectives will often place the suspect at ease by downplaying the crime and stating the interview is for information gathering only. The detective proceeds calmly to establish a friendly demeanor with the suspect. Surely, a reasonable person would perceive the encounter as non-threatening and non-custodial.
Exceptions to the Miranda Rule
There are exceptions to the Miranda Rule. The jailhouse informant exception applies to situations where the suspect does not know he is speaking to law enforcement; either an undercover officer or an officer’s informant poses as a cellmate to obtain incriminating information. It could also involve working with a cooperating family member or friend of the suspect who will talk to the suspect to obtain that information.
The public safety exception is where the Miranda Rule does not apply because there is an immediate threat to public safety. In this limited and case-specific exception, certain statements (given without Miranda warnings) are admissible as evidence at trial. This exception includes circumstances involving terrorism or even an officer encountering an individual wearing an empty holster. It is common knowledge among police that individuals illegally carrying guns will attempt to hide the gun if possible contact with law enforcement is imminent. A gun placed in a public place presents an immediate danger to public safety. The officer asking, “Where’s the gun?” without giving Miranda Warnings to the suspect would be proper under this exception. However, the window of opportunity is small and once the suspect is arrested, Miranda will apply.
Police officers and citizens must understand that movies and television shows do not always depict the law correctly, especially when it comes to the Miranda Rule. Remember that Miranda Warnings are only required when there is both custody and interrogation about a crime. If officers familiarize themselves with what constitutes as “custody” and “interrogation of a crime,“ they can limit confusion concerning the Miranda Rule.
About the Authors:
Andrew Bell has more than 20 years of law enforcement experience and 25 years in the U.S. military and civilian service. He served as a patrol officer, detective, patrol sergeant, community-policing supervisor, school resource supervisor and detective supervisor. He was called to active duty with U.S. Army Reserve after 9/11 and completed a tour in Afghanistan. Andrew also worked for the U.S. federal government in Army intelligence, Army capabilities unit and emergency operations. He holds a master’s degree in public administration and a bachelor of science degree with a concentration in criminal justice. Andrew has been a faculty member with American Military University since 2004.
Bruce Razey began his law enforcement career in 1975. During his 35-year career, he worked for three diverse police departments. Bruce served in patrol operations, special operations and the investigative division. His assignments included field training officer, air unit coordinator/observer, field training supervisor, community policing supervisor, detective supervisor and committee chairman for internal affairs review unit. He served on numerous hiring and promotional boards; authored and co-authored policies and procedures; created lesson plans to instruct new and veteran officers in a variety of topics; and established policy and guidelines for an improved method of conducting police lineups and eye-witness testimony. Bruce holds a bachelor of science degree in criminology from the University of Saint Leo, Florida. He graduated number one from the Regional Police Academy and from the West Point Leadership & Management Training Course.
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