Tampa Miranda Rights Defense Attorneys

Mike Kenny, attorney, Bauer, Crider, and Parry: The second portion of it, on Miranda, or I'm sorry interrogation. Interrogation is essentially what it is - a question designed to elicit an incriminating response. And, a lot of that, sometimes, believe it or not, is litigated. There have been cases where a person may have invoked his right to remain silent, and said he did not want to answer any questions. And officers would begin to have a conversation and begin talking. But not, claim they’re not asking questions. But, maybe in the way they design their questions.

There is a famous case where there was a homicide, and there was a discussion about, you know, where, you know, the these poor victims that were killed, you know. Wouldn’t the parents like to see where they are? And just help these parents come find the body and give them a Christian burial, so to speak. And the conversation between the officers in the front seat of the car, where the gentleman in the back is hearing all this, the court was inquiring, “Was that conversation designed to elicit an incriminating response for him?” Where he says, “Well, all right. Listen, you go around the corner you’re going to find, you’re going to find where I buried everybody.”

And courts look at the actions and intent upon the person making the statement. So, the short idea is, not every interrogation, necessarily, is a question. But it's, “Was it designed to elicit an incriminating response?” And, in that particular example, about talking about giving these children a Christian burial, you know, the courts were asked to interpret whether, or not, that conversation between two officers in the front seat driving the suspect around was designed to elicit an incrementing response from him.

So, that’s the basics of Miranda. And when you get your Miranda warnings you have to be in custody, and you have to be propounded questions or you have to be questioned or spoken to in a manner that is designed to elicit an incriminating response. Now, when that comes up, when the person is in custody the officer has to read these warnings. And I get, all the time, people when they come, after they get arrested, oftentimes they tell me, “Hey, listen. Nobody read me my rights. You know? So, what does that mean?”

And that’s the question, right? What does it mean if an officer has you in custody and does not review your Miranda warnings? And what it means is, it depends. That’s the short of it. It depends.

There are plenty of cases were officers make an arrest and they don't ask any questions. And if they don't ask any questions the failure to read Miranda warnings is a irrelevant. It only matters whether, or not, a person is answering questions. And the reason why it only matters, is what some people might believe, “If I don't get my read my rights the arrest goes away, or the charge goes away,” is not accurate. The cure for the error in law enforcement, in failing to read Miranda warnings, the cure for that is that any statements made without being warned, when they should have been warned, any statements made are suppressed. Meaning they are kept out evidence. So, they don't make the charge go away, and they don't make the arrest go away.

So, sometimes that matters, and sometimes it's completely has no impact on the arrest. And I’ll give an example when it matters. What comes up very often in drug possession cases. In Florida, we have an understanding of the law possession where it’s called constructive possession. And constructive possession means where a controlled substance may be in the possession of more than one person. And it’s not in the hands of the person, and it’s not in the pocket of the person, or on the body, or so near to them to be considered on their person. But it's maybe in the area.

For instance, a car is the best example I can come up with. Two occupants in a vehicle. The vehicle is stopped for some for some traffic violation. An officer comes over the driver side of the window and maybe even notices in plain view a controlled substance sitting in the center console. Or, sitting on top of the center console. In that particular case you have a constructive possession issue. If the officer takes both of the individuals out of the car and begins to interrogate them. At that moment you would have a custodial setting, and you would have interrogation asking, “Hey, whose drugs are these? Where do they come from?” You know? “Who was using it.” That part is when the Miranda warnings would matter. If a person answered the question, and they said, “It was mine.” Or, another person said, “It was mine.” Those are very critical responses. Those responses are what the state would be able to use to show that this particular individual was in constructive possession of that controlled substance.

So, if we have a case where there's occupants in a vehicle, and an officer stops the car. And an officer pulls both occupan