They didn't Mirandize Me-- What do I Get for That?

Everyone knows the Miranda warning from television. Though we sometimes see law enforcement protagonists reading a pro forma warning to arrestees from a card, there are no magic words as long as the police clearly inform custodial interrogation targets that they do have a right to be quiet because everything can, and will be used against them (really bad) if they don't do so. Likewise, interviewees in custody subject to the functional equivalent of questioning have a right to an attorney.

If an officer wants to obtain a statement to shore up an investigation, he or she will cagily invite a suspect to “tell his side” of the story by leaving a business card or a scribbling a cell phone number on a scrap of paper as an offer or gesture to the would-be defendant.

“Let’s sit down and talk,” says Officer Friendly.

“You’re not under arrest” and “you’re going home tonight” are frequent watch words that should set off alarm bells that both disarm and deny to defendants the Miranda warning. Why? Because Miranda requires only that an officer announce that an interrogation target;s words will be used against him or her when he or she is in custody. The stereotypical—and easy—situation where everyone understands a warning is required is when a suspect is in handcuffs and placed in an interrogation room. This is easily, objectively a custodial situation that requires a Miranda warning.

 

Why objective? Well, because a reasonable person standing in the suspect’s shoes would understand this situation to mean that he or she was unfree to leave. Unfree to leave has talismanic significance. If the defendant is free to leave, as in, “you’re not under arrest” and “you’re going home tonight,” or “you can go any time you want to—we’re just talking,” it becomes clear that Miranda may not be necessary. In fuzzy situations, like standing in a raided house, or, even a suspect's house, the facts and circumstances will be key to an understanding whether the suspect was both subjectively and objectively free to leave. If so, police, and the courts, may equate a non-custodial interrogation to a casual conversation that does not require a Miranda warning.

Now, if Officer Friendly pairs "you're not under arrest" language with handcuffs and sequestration in a locked interrogation room, you’ve got a different story. Which is why the facts and circumstances of each case should be reviewed by a qualified attorney for possible presentation of a suppression issue to a judge.

The second requirement is an actual interrogation. Walking up the middle of the street and confessing a crime to an unwitting patrol officer is not an interrogation. It’s an unsolicited confession. And absent mitigating circumstances is probably not going to require a Miranda warning. How could it? The officer was heretofore directing traffic (it's also not custody). 

 
It gets blurrier if an officer does not technically engage in questioning designed to elicit incriminating answers and does not know a suspect’s particular susceptibility to a scripted dialogue about the consequences of silence.
 

In a 34 year old United States Supreme Court case called Rhode Island v. Innis, two police officers transporting an armed robbery suspect engaged in an un-Mirandized dialogue with each other and within earshot of the defendant about the safety of a nearby school in the context of a discarded weapon. So distraught about the possibility of an injured student, the robber blurted out that he wanted to assist the officers in retrieving the discarded firearm. The Supreme Court held that the dialogue was not the functional equivalent of an interrogation because the officers did not know that the conversation was likely to have such a jolting effect on the suspect.

Even if an un-Mirandized custodial interrogation produces an incriminating statement, the remedy is, sadly, not dismissal of the prosecution as so many defendants and their families hope. It is suppression of the evidence under limited circumstances. This means that the defendant’s incriminating statement can be withheld from an unwitting jury under limited circumstances—and sometimes can even be introduced over the objection of the defendant under other, limited circumstances.

A blog is not legal advice. Neither reading a blog nor sending unsolicited information to a lawyer over the Internet establishes an attorney-client relationship.