Interviewer: Don’t you have potential clients come to you and say, “I said this, that and the other thing, but I want you to get it all thrown out because they violated my Miranda rights”? Do you hear that from your clients and what are they really saying when they say that?
Kevin: When it comes to Miranda, there are a number of different misconceptions that clients routinely have, until they talk to me. The first misconception is that a person arrested always has to be told why he or she is under arrest.
The second misconception is that a case can be thrown out if the police officer never told the person arrested about his Miranda rights.
Then, the final misconception I come across is that the police have an obligation to give somebody a phone call. If they don’t, then that case can be thrown out.
The Police are Not Under a Legal Obligation to Tell You Why You Are Being Arrested
A person never has to be advised why he or she is arrested. In general, a police officer should tell somebody that the drivers being arrested and, then, subsequently read or recite Miranda warnings to the driver.
If a police officer does not tell the person being arrested what the charges are or why the arrest occurred, there is no obligation of the courts to throw out the criminal or traffic charge. It’s just something that’s not required under the law.
The Definition of an Arrest
The recitation of Miranda warnings does not have to occur immediately upon arrest. Let’s define what is an arrest. Now, arrest can be seen as something as simple as putting handcuffs on a person. That, absolutely, is an arrest.
An arrest can be putting somebody in the back of the police vehicle, where they cannot get out of that vehicle and then they remain in the vehicle for a sustained period of time. That is a situation where there’s an arrest.
To give a more legal definition of an arrest would be a situation where a person does not feel that he or she is free to leave from police custody.
During an investigative detention, a police officer can keep a person for a brief period of time in order to conclude the investigation. Once there’s an extended detention where there’s a certain amount of coercion and the person absolutely knows that he or she is not able to leave, then that’s, essentially, deemed an arrest.