Your Words Will Be Used Against You

I’ve heard a few of the defendants I have represented say “they didn’t read me my Miranda Rights!” Sometimes the police don’t read a suspect Miranda Rights because they have already gained enough information to arrest.

When do police have to read Miranda Rights? In Texas, the legal answer is when the defendant is placed in full custody and asked questions. Police ask questions all the time when the defendant is not in full custody. An example would be a routine traffic stop. The officer approaches the driver and asks “Do you know why I pulled you over tonight?” The officer asking the question is simply looking for the person to incriminate themselves by saying something like “because I was speeding” or “because I didn’t stop at the stop sign.” Always remember that an officer is trying to gain information so that it can be used later. When I was a prosecutor I used to say to other prosecutors “the best evidence is the defendant’s own words.”

When the police pull someone over on a traffic stop or stop someone on the street, they have to have a reason to stop the person, such as a violation of a traffic law. When they pull you over, that is when their investigation into other possible crimes happens. This investigation is called an “investigatory detention.” The officers will claim that they smell alcohol or marijuana, or they will say to the person that their eyes look bloodshot and watery and would they get out of the car please. The funny part about an “investigatory detention” is that the police don’t have to read a person Miranda Rights at that point. Sure, they have the power to detain the person, but that person is not in full custodial arrest, meaning they have not been arrested for a crime yet. This is where the defendant or “suspect” has to be careful with how he answers. It is important to appear respectful but also important to realize that they are looking for information to use against you later.

The police may ask for your permission to search the car or you. Never, never, never give police permission to search anything. They will phrase the request politely in terms of, “do you mind if I look in your car for anything illegal?” The request is as if they are just making a simple request that only a reasonable person would agree to. You should say no in a respectful manner, such as “I do mind officer, because I have to get to my mother”s house because she is sick and she needs me there.” Consider this – if the police didn’t need your permission to search, they wouldn’t ask for your permission!

Finally, if the police arrest you, they will place you in handcuffs and tell you what you are under arrest for. It is at this point that the police should read you Miranda Rights if they want to ask more questions. Many, many times I have had defendants questioned after this has happened and their answers were not admissible in court.

What NOT to Do When Stopped by the Police: Advice from a Criminal Defense Attorney and Former Police Officer

This article is primarily intended for younger males. Like it or not, and regardless of whether it’s fair, these are the drivers that primarily catch the attention of police officers. Your chance of being stopped is already elevated, so please don’t make the job of the officer unreasonably simple, or make the job of your defense attorney more difficult than necessary.

  1. Check the equipment on your vehicle before hitting the road, especially if you will be driving late at night. Generally, there are fewer cars on the road per officer at night, so you are begging to be stopped if you also have a headlight, taillight, license plate light, etc., that is not in compliance with the law. This just makes it too easy for the officer to stop you. He sees it as an easy opportunity to look in your car to see if anything more interesting might be going on.
  2. Don’t immediately begin complaining to the officer that you were only stopped because you are white/black/Asian/Hispanic/etc. This will only serve to ensure the officer cites you for all violations he observes to cover himself should you file a complaint. It is also just a bad idea to start the conversation by challenging an officer’s authority. The bottom line is that the officer has a tremendous amount of discretion and you don’t appear to be worthy of leniency when you start off by challenging him.
  3. Don’t ever give the officer permission to search your person or vehicle. If you say “yes,” you are putting your head on the chopping block and hoping it doesn’t get cut off. You are always better off saying “no” in this situation. The officer may still conduct a search, but if he finds anything he will have to document a legally sufficient reason for searching without your consent. This is the first thing your defense attorney will look at in hopes of arguing the search was illegal.

If all of my clients lived by these simple rules it would make the job of their defense attorney much easier.