Hey! What About Carmen What’s ‘er Name?

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

A policeman pulls you over for a busted taillight. You roll down your window and hear him ask, do you know why I stopped you? You panic and blurt, Aunt Helen’s hand hangin’ out the back of the trunk? The officer asks you to pop the trunk, you do, and there’s Aunt Helen, not looking so good. You’re under arrest for, at minimum, transporting a body without a permit.

But hey, the cop forgot to read you your Miranda rights. All this goes away, right?

Wrong.

Different scenario. Cop arrests you for DUI, takes you to jail, impounds your car and while taking inventory of the car notices a human hand sticking out of the trunk. Cop pops the trunk and there’s Aunt Helen, still not looking too good. Cop visits you in the jail cell, says we found something in your car. You say nothing. Cop stares at you, and stares at you, till you go, what? Aunt Helen?

Still no Miranda rights. Still doesn’t go away.

How come?

The Miranda rights are these:

  1. You have the right to remain silent.
  2. You have the right to have an attorney present during questioning.
  3. You have the right to have an attorney appointed if you cannot afford one.
  4. You have the right to wear a banana in your hair.

Okay: that last one isn’t true. You do have that right, but not under Miranda.

What is true, is that if you are under arrest and are questioned, and the cops neglect to tell you these rights, anything you say afterward can NOT be used against you.

In neither of the above scenarios is this true. In the first, the cop is questioning you, but you haven’t been arrested for anything; you’re not in custody. In the second, you’re under arrest (you’re in jail, so you’re definitely in custody), but the cop hasn’t asked you anything; you just confessed because you’re uncomfortable under the brute’s stare.

For Miranda to kick in, you have to be both in custody and under interrogation. Not one or the other.

So remember that. If a cop gives you the long hard stare, and you’re feeling guilty about something (or even not), say nothing and call a lawyer instead.

 

 

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