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Tuesday’s Legal Tidbit: Does Police Failure to Give Miranda Rights Always Mean an Arrest Is Illegal?

Question: My nephew was walking to a Marta train station when he was stopped and arrested for Possession of Marijuana Less Than an Ounce near Underground Atlanta in Downtown Atlanta. The officer said that he could smell burnt marijuana on my nephew when he asked him his name. The officer said that my nephew was not under arrest and that he could leave if he liked. However, after he said this, the officer stated that he just wanted to ask my nephew a couple of really quick questions. After the officer asked three questions, my nephew admitted to smoking marijuana and having a five dollar bag of marijuana in his front pants pocket. My nephew consented to a search and he was arrested. The officer never read him his Miranda Rights like they do on TV. Will my nephew’s case be kicked out of court as being an illegal arrest?

Answer: No, the police encounter and arrest were both legal. In June 1966, the United States Supreme Court created a legal standard for police encounters and citizen questioning with Miranda v. Arizona. The Miranda warning or giving an individual their “Miranda Rights” is intended to protect a citizen’s Fifth Amendment right to refuse to answer self-incriminating questions from law enforcement officers.

First, it is important to note that a police encounter is not an arrest for purposes of Miranda. The police are allowed during an encounter to ask non-testimonial questions such as your name, address, and date of birth. To get this information, an officer may ask to see your state-issued driver’s license. The United States Supreme Court has ruled that asking an individual for this non-testimonial information is not an unreasonable detention, and thus legal. Miranda Rights are invoked when there is a “Custodial Interrogation.” This legal term basically means that an individual is not free to leave and the officer is asking testimonial questions that could be used against that individual in a court of law. A prime example would be when an officer has arrested an individual and is now asking that individual questions about their alleged crime.

Here, the officer said that the nephew was free to leave before he asked one question. There was no arrest at that time. For purposes of this article, the nephew could have kept walking towards the train station. He had a choice to walk-away, not answer the questions and not consent to a search of his persons. All the nephew’s actions were voluntary. Spontaneous utterances or voluntary statements may be used as evidence in court. Therefore, the nephew’s answers to the officer’s questions will be admissible in court and the arrest will be deemed legal.

Please exercise your legal right to remain silent when encountering law enforcement officers and to walk-away if the officer states that you are free to leave. Remember, you don’t have to be rude to law enforcement officers when exercising your rights. Be polite and call The Boddie Law Group, LLC at 404-287-2393 if you are arrested for a crime in Georgia.

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

 

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Tuesday’s Legal Tidbit–Pleading the Fifth

Question: Could pleading the 5th Amendment help or hurt me if I am brought in for questioning by my employer?

Answer: This scenario comes up a lot with retail jobs when a store’s Loss Prevention Department is investigating a theft.  A person has the right to invoke the 5th Amendment typically when dealing with law enforcement, a government body (e.g., the U.S. Congress), or government agent (e.g., federal investigator).

The 5th Amendment is intended to protect a person from making incriminating statements against themselves.  Those incriminating statements can, in turn, be used against that person in a court of law and could possibly led to jail or prison time. It is important to know that the 5th Amendment and Miranda Rights typically do not apply to a private agent such as a loss prevention officer or insurance investigator.

Some employers may contractually require an employee to submit to making a written statement when an inquiry arises at the workplace. The inquiry could be related to a theft, mismanagement of work-related funds or sexual harassment.  Everyone of those employment scenarios have dual criminal consequences. Be careful because a written statement to your employer maybe used in a criminal prosecution against you down the line. To preserve your legal rights, please request and consult with an attorney before making any potentially incriminating statements to anyone.

 

Please call The Boddie Law Group, LLC at 404-287-2393 for any questions regarding criminal defense issues in Georgia.

 

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

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Tuesday’s Legal Tidbit–Arrested for Drugs Found in Cousin’s Car While Driving It

Question: I was recently stopped on I-20 East for speeding and a window tint violation. I borrowed my cousin’s car earlier that day and was not sure if he had any illegal items or drugs in the car. I think my cousin still may be a drug dealer but I don’t know for sure. I do know he went to prison for 10 years back in 1999 for trafficking cocaine. The police arrested me after their drug k-9 alerted on and they found a duct-taped package with a white powdery substance in the trunk of car. Should I tell the police about my cousin’s prior prison sentence and that I’m innocent of any crimes?

Answer: The Fifth Amendment of the United States Constitution states “…No person shall be compelled in any criminal case to be a witness against himself or be deprived of life, liberty, or property, without due process of law.”  So what does the 5th Amendment mean to the Everyday Joe Citizen who has been arrested?

It means that law enforcement must inform all criminal suspects of their right to remain silent. This right extends from the point of arrest throughout the suspect’s involvement in the current or future criminal proceedings.

A large number of police cases are built and founded upon statements made by the accused. In the United States, the government has the burden of proving that the accused is guilty beyond a reasonable doubt. The prosecutor has to recreate the crime and prove beyond a reasonable doubt what did or did not happen but the accused does not have the burden of proving or disproving anything.  Thus, there is very little benefit in saying anything to a law enforcement officer once you know that you are a possible suspect.

It is important to remember that the 5th Amendment only applies after we are arrested. There is a difference between being detained and arrested.

Therefore, the 5th Amendment right against self-incrimination does not apply when we are approached and questioned by police but does apply once we are arrested or no longer free to leave.

Finally, everyone is always a possible suspect, so it is better to stay silent from the beginning of your interaction with law enforcement.

You cannot talk yourself out of an arrest; you can only talk yourself into an easy conviction for the prosecutor.

 

If you have been arrested and questioned about a criminal offense in Georgia, please call The Boddie Law Group, LLC.  Our office telephone number is 404-287-2393.

 

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

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