If you’ve ever watched a television crime drama, chances are you could recite the Miranda warning by heart. Today, Detectives Dan and Dave continue their law enforcement briefing with a review of the case that brought us the Miranda warning: Miranda v. Arizona. The detectives also delve into a precursor case, Escobedo v. Illinois, which helped define what rights a person has when they’re arrested.Read Transcript
Dan: [00:00:05] Hey, Small Town Fam. Welcome to the Briefing Room.
Dave: [00:00:11] Every day in police stations across the world, law enforcement officers begin their shift with briefing. Briefings are essential to communication and allow officers and command staff to discuss calls for service, crime trends, case law, wanted subjects, training opportunities and policy changes. Briefing rooms provide a setting where the team can speak with each other candidly and openly.
Dan: [00:00:35] We wanted to create a similar setting for our listeners. The Briefing Room series will include intimate and formal conversations about trending issues, viral videos, guidance and training from detectives, as well as commentary on other topics impacting law enforcement and the true crime community.
Dan and Dave: [00:00:52] So, welcome to the Briefing Room.[Briefing Room theme ends]
Yeardley: [00:01:01] Today on the Briefing Room, we are continuing our discussion about case law and how it shapes the way police officers are expected to do their job. I have with me, Detective Dan.
Dan: [00:01:18] Hello, Team.
Yeardley: [00:01:19] Hello, you. And I have Detective Dave.
Dave: [00:01:21] I’m present as well.
Yeardley: [00:01:23] You are present. It’s so good to have you both. Okay, fellows, tell us about this famous case that further shapes the way police officers are supposed to do the job, some of the standards that you’re held to, these boxes that you’re expected to tick.
Dan: [00:01:43] Okay. Dave and I thought it would be a good idea to talk about Miranda v. Arizona. That is the case where we get the Miranda warning from. We’re also going to talk about a case that set the groundwork for Miranda.
Dave: [00:01:56] And this case is Escobedo v. Illinois. And this case happened in 1960. And I’ll just give you a brief rundown. So, this guy Danny Escobedo, his brother-in-law, a guy named Manuel, gets shot and killed. On January 19th, 1960, Manny gets shot. Escobedo gets arrested, initially, and refuses to make a statement to the police, and he gets released. About 10 days later, the police have another man in custody, a guy named Benedict. That’s his first name. While Benedict is in custody, he tells the police that Danny Escobedo is actually the shooter in this case, this murder of Manuel. So, the police go out on January 30th, and arrest Danny Escobedo again.
Yeardley: [00:02:51] And this is in Illinois?
Dave: [00:02:52] This is in Illinois. While transporting Danny Escobedo to the station, the police basically say, “Hey, Benedict dimed you out. It would be in your best interest to tell us everything that happened and be honest with us.” And Escobedo says, “Ah, yeah, I’m not going to talk to you guys until I have an attorney.” And the police are like, “Oh. Oh, okay.” And the police reasoning here for not providing him attorney is that he hadn’t been arrested yet. So, he didn’t have the right to counsel.
Yeardley: [00:03:26] Is that true?
Dave: [00:03:27] Well, that’s what they said back in the day. Obviously, there’s case law regarding this. So, that gets addressed at a later time. Escobedo’s attorney actually shows up to the police department, and the police don’t allow the attorney to talk to his client, Danny Escobedo.
Yeardley: [00:03:44] So at the same time the police are bringing Escobedo to the police department, the attorney shows up and the police say, “No, you can’t come into the interview room”?
Dan: [00:03:52] Correct.
Dave: [00:03:54] And this is stuff that I saw your reaction on the Zoom that your eyes opened very wide and you’re shocked. We have to remember that the way they operated back then is not how we operate now.
Dan: [00:04:05] The police repeatedly refuse the attorney to have contact with his client, Escobedo. The police and the prosecutor proceed to interview Escobedo for 14 and a half hours. Escobedo repeatedly asks to speak to his attorney, they refuse. And during this 14-and-a-half-hour interrogation, Escobedo begins to make a couple of statements indicating his knowledge of the crime. They go to trial, and Escobedo gets convicted of murder. Obviously, they appealed this decision, and basically said that he had the right to counsel, and it was refused, and he should get another trial. And Illinois Supreme Court agreed. Illinois Supreme Court reverses the conviction. The state petitioned for another rehearing and the court then affirmed the conviction, so overturned their earlier decision that the confession should be inadmissible. They reversed and say, “Okay, the conviction is good. He should be convicted of murder.”
Yeardley: [00:05:15] Okay, can you put that in layman’s terms?
Dan: [00:05:18] Originally, Escobedo gets convicted of murder. The court says, “Yeah, the confession is good.” He appeals to the Illinois Supreme Court. Initially, the Illinois Supreme Court says, “No, the confession is inadmissible,” and they reversed the conviction. So, Escobedo is not convicted at this point. The state of Illinois petitions for a rehearing with the Illinois Supreme Court, and they come out victorious. So, they reaffirm the conviction. So now, Escobedo is convicted again,
Yeardley: [00:05:53] And thereby saying that his confession was admissible.
Dan: [00:05:57] Yes, I don’t know why they went back and forth. Escobedo then appeals to the US Supreme Court, and in a 5-4 decision, which surprises me– again, we’re talking about 14 hours, he was denied counsel, Escobedo. In a 5-4 decision, the US Supreme Court overturns the conviction.
Yeardley: [00:06:17] And says he is free again?
Dan: [00:06:20] “He is free. You cannot use that confession. It’s inadmissible.” So, let’s just fast forward a few years. Following the Supreme Court’s decision, which happened in 1964, Escobedo ends up receiving 12 felony convictions including federal charges of selling. He’s also convicted of some child sex abuse crimes. While Escobedo is free on bond with those federal charges, Escobedo pleads guilty to attempted murder and get sentenced to 11 years in a separate case. So, that’s just a little nugget. That takes us to March of 1963 and a guy named Ernesto Miranda was arrested by the Phoenix Police Department.
[00:07:05] Phoenix PD had circumstantial evidence on Miranda regarding the kidnapping and rape of an 18-year-old girl. And about two hours of interrogation by the police produces a written confession, a signed confession from Miranda stating, “I do hereby swear that I make this statement voluntarily and of my own free will with no threats, coercion or promises of immunity. And with full knowledge of my legal rights, understanding any statement I make may be used against me.” The issue is that Mr. Miranda was never advised that he had any rights, that he had the right to counsel that, he had the right to remain silent and not make a statement at all. So, that’s the crux of this case.
Attorney: [00:07:57] The questions here are whether antecedently, to the giving of his confession, the police were constitutionally obliged to give warning of a right to remain silent and a right to counsel?
Yeardley: [00:08:18] Does that mean that those basic rights had already been established based on the Escobedo case?
Dan: [00:08:26] They had. There was a basic understanding that people have a right to counsel. Now, in this case, Miranda, to my knowledge never said, “I want to speak to a lawyer.”
Yeardley: [00:08:37] But he also wasn’t advised that he had the right to remain silent, which is part of the Miranda reading of rights.
Dan: [00:08:43] Correct, and that he had the right to counsel also, which was established in the Escobedo case that he has a right to counsel, but Miranda was unaware of those things. So, what the court did, initially, they go to trial, Miranda goes to trial, and he gets convicted. He gets sentenced to 20 to 30 years on each charge with the sentences running concurrently, which means if you get two 20-year sentences consecutively, you’re going to serve 40. Concurrently is you’re serving both of those sentences at the same time. Miranda appeals to the Arizona Supreme Court, claiming that his confession is not fully voluntary and should not have been admitted into the court proceedings. The Arizona Supreme Court affirmed the trials court decision to admit the confession.
Yeardley: [00:09:31] So, they don’t agree with Miranda’s appeal?
Dan: [00:09:35] Correct. Basically, they say, “Well, you didn’t specifically request an attorney. So, sorry, that’s on you.” But again, he was not aware of his rights. We look at this in a different lens now, decades later, obviously. Miranda then appeals that decision up to the US Supreme Court. In 1966, the Supreme Court issued a 5-4 decision in Miranda’s favor, that overturned his conviction and remanded his case back to Arizona for a retrial. This had a ripple effect, even through the Supreme Court. I mean, that’s a close decision, 5-4. The majority in this case of the court ruled that because of the course of nature of the custodial interrogation by police, and the justice, Earl Warren, cited that there are police training manuals that had not been provided during the court proceedings, that no confession could be admissible under the Fifth Amendment self-incrimination clause and the Sixth Amendment right to an attorney clause, unless a suspect has been made aware of his rights, and then the suspect waived those rights.
Attorney: [00:10:49] We are compelled as a matter of federal constitutional law to hold on the basis of the Escobedo case, that these warnings must be given. These rights must be waived. Otherwise, a statement, no matter how free and voluntary it may otherwise be, may not be received in evidence.
Yeardley: [00:11:08] Okay, so in laypersons terms, unless you specifically say to the person, “You have the right to remain silent and the right to an attorney,” and they say, “I understand that, and I waive my right to both of those things,” whatever comes out of their mouth is inadmissible in court.
Dave: [00:11:27] Yeah, it’s fruit of the poisonous tree. So, just going back to the court’s decision, it was 5-4. The four justices who dissented in this case that said, “No, I think the confession is good,” they believe that once this warning went out there that nobody would ever talk to the police. So, that’s where their minds went, and they didn’t think that that was in the best interests of the public. They’re thinking in a more broad sense that nobody’s ever going to confess now, and that we’re going to have problems.
Dan: [00:11:59] They had similar concerns at the Escobedo trial.
Attorney: [00:12:03] It should be very clear that we’re not talking merely about an opportunity to consult counsel. It is not the absence of consultation with counsel that is important. It is the absence of counsel that is important. That a man under indictment who clearly has the right to counsel who was questioned at all by the police, no matter how many times he had consulted with counsel since his indictment, if the confession came in the absence of counsel, the confession would be incompetent, which means essentially, there will be no more confessions.
Dan: [00:12:37] I will say this. Law enforcement was forced to change their tactics. And I don’t think Miranda or Escobedo has had really any impact on the amount of confessions we get. So, just a little sidenote to this case, Miranda gets retried in 1967.
Yeardley: [00:12:57] The actual man named Miranda, not the case?
Dan: [00:13:00] Yes, the actual dude. So, Miranda goes back to trial in 1967 on the original kidnapping and rape case. After it had been thrown out, they do a retrial. This time, the prosecution presents other evidence and brings other witnesses forward. Miranda gets convicted again, absent the confession. He gets convicted in ’67, sentenced to 20 to 30 years. So, 20 to 30 years, that’s his sentence. The Supreme Court of Arizona reviewed that case and affirmed the conviction. The US Supreme Court said, “Now, if you guys did everything you said you were going to do, then we’re good. We’re not going to review that case again.”
Yeardley: [00:13:40] The conviction stands.
Dan: [00:13:42] Yeah. Miranda gets paroled in 1972. So, he gets sentenced to 20 to 30 years and he serves just under 5 years in prison for the kidnapping and rape of an 18-year-old girl. He ends up going back to his old neighborhood. And now, all these police officers have Miranda cards with the Miranda warning on them that you’ve read to people when you take them into custody. And cops are going around Miranda having him autograph their Miranda cards.
Yeardley: [00:14:09] Stop it.
Dan: [00:14:10] It’s unbelievable. I wouldn’t want to talk to the guy. He’s a rapist and he’s a kidnapper. I’m not going to have him autograph my Miranda card. Anyway, that happens for a few years. In an ironic twist of fate, in 1976, Miranda goes to a bar one night, gets in a verbal argument with a guy that turns physical, and he gets stabbed to death. And the suspect in that case gets arrested, but due to a lack of evidence against him, he gets released and he’s never tried for.
Yeardley: [00:14:40] That is ironic.
Dan: [00:14:44] Anyway, Dave has talked about when and how we use Miranda.
Dave: [00:14:49] The gist is this is why we have Miranda warning, is that the court said, “We have to give that upfront to anybody we’re accusing of a crime and who is at risk of potentially providing incriminating information about themselves. We have to frontload that interview with, “Hey, I want to make sure you’re aware that you don’t have to speak to me, basically.'” And this is how the police have had to operate ever since.
Dan: [00:15:16] The court outlines this and says, “Anytime a person is in custody, prior to their interrogation, they must be clearly informed that they have the right to remain silent, that anything they say will be used against them in court. They must be clearly informed that they have the right to an attorney, and have the attorney with them while they’re being questioned. And that if you cannot afford an attorney, an attorney will be provided to you by the state, at no cost.” Those are your rights.
Now, the other side of that is, if a suspect actually chooses to exercise those rights, the right to remain silent, the right to an attorney, etc., the interrogation must cease at that point until the attorney is present. And then obviously, you must give the person time to confer with their attorney. So, that all makes sense. That’s where we are today regarding interviews, and when we talk about Miranda, mirandizing, “Did you give him Miranda? These are all the terms that we use in law enforcement.
Dave: [00:16:18] This is background for the discussion we’re about to enter is when are situations that we are providing a suspect with the Miranda warning?
Yeardley: [00:16:28] Because if somebody is in your custody, who you are just chatting with, there’s a thing where you don’t have to read the Miranda because you haven’t actually accused them or suspected them of a crime?
Dave: [00:16:46] Well, that’s what we’re going to talk about, is when do you provide Miranda and when do you not need to provide Miranda. And it’s all about time, place, and circumstance, and what a reasonable citizen or person would feel about whether or not they are being seized, like detained, stopped, etc. So, this again has provided the boundaries or the railings for where police can go with interrogation and questioning. We talk about a situation where you say, “Hey, did you mirandize?”, like, say a patrol is out with a suspect, and the detective gets called in, one of the first things I’m going to ask is, “Has he been advised and Miranda?”. I want to know that upfront, because if he already has, I’m not required to do so.
Yeardley: [00:17:34] You don’t have to readvise him of that.
Dave: [00:17:36] Right. If it was a day prior that they contacted him, I’m going to readvise him. But if we’re talking about a half an hour, I don’t have to readvise. Not every person that comes across a suspect has to advise him of his rights. If he’s been advised, a reasonable person would say, “Oh, nothing’s really changed about my circumstances. I knew that I have the right to remain silent, and an attorney, etc.” So, there are conditions, there are cases where I’m not required to advise someone to Miranda. And this is kind of the discussion. I always love when people say, “You never advised me of my rights.” “Well, I don’t have to in certain situations. One of those being, if I’m not going to ask you any questions, I don’t have to advise you have your rights.” You can be under arrest and never get the Miranda warning.
Yeardley: [00:18:22] Really?
Dave: [00:18:23] Yeah, absolutely.
Yeardley: [00:18:24] You can put me under arrest, not ask me any questions. And in that case, you don’t have to read me my Miranda rights?
Dave: [00:18:30] Exactly. Miranda applies when I am asking interrogatory questions that put you at risk of incriminating yourself. So, it’s a misnomer. People are like, “Oh, this arrest is going to get thrown out because they never advised me of Miranda.” “Well, I wasn’t asking you any questions. I don’t have to.”
Dan: [00:18:48] Now, if a suspect starts talking to you about the case, then yes, you need to mirandize them.
Yeardley: [00:18:54] So you need to interrupt them and say, “Before you go on, I need to advise you of your rights”?
Dan: [00:18:59] Exactly. And then there are some situations where Miranda may or may not apply. I’m just thinking back on cases. You’ve seen video of interrogation rooms, or interview rooms or police departments. I can have a conversation with a suspect in that room and not have Miranda, and there are some specific ways to do that. One is, leave the door open.
Yeardley: [00:19:25] Like physically?
Dan: [00:19:26] Yeah, physically leave the door open. I would also sit on the far wall of the room, so I am not between the suspect or the person I’m interviewing and the door.
Yeardley: [00:19:39] Talk about why those two things are important.
Dan: [00:19:42] Well, if I’m sitting between the door and the suspect, they’re not going to feel like they’re free to leave if I’m between the door and the suspect. If I switch the seating in that room, it’s easier for me to articulate that they were free to leave. I wasn’t between them in the door. The door was open. I had told the suspect that they were free to leave. But the other side of that is if I’m going to start asking incriminating questions, I need to mirandize this person. So, if you’re just having a general informational interview, say they’re not a suspect at this point at all, I’m just talking to them, trying to get some background, I think they’re a witness. But all of a sudden, they start making incriminating statements. Now, I have to mirandize them.
Yeardley: [00:20:24] And it wouldn’t have to be incriminating themselves, or could it be incriminating somebody else?
Dan: [00:20:29] It’s self-incrimination. So, the Fifth Amendment. Other situations, Dave’s had this happen many, many times. There is specific language that we have to touch on regarding an invocation. So, if somebody says, “I wonder if I should speak to an attorney?”, do you think that that is a clear invocation or a request to speak to an attorney?
Yeardley: [00:20:52] I don’t think it’s a clear invocation. I don’t think it’s even a request to speak to an attorney. I think it’s wondering out loud.
Dan: [00:21:01] And the courts agree with you. Dave, why don’t you talk about some different situations where you’ve had this happen?
Dave: [00:21:07] Our first episode ever, Don’t Go!, suspect in that case was speaking to Detective Don. And he made some sort of comment about, “Well, I don’t have an attorney.” And at trial, that became an issue at a suppression hearing, basically saying, “Well, he said the ‘attorney’ word and you guys continued to question him.” And the argument that Prosecutor Eric made was, there are specific boxes suspects have to check for it to be an invocation of their rights. And in this case, he made a statement. It’s not unequivocal, where you say, “Oh, he clearly just invoked his right to remain silent,” or, “He clearly requested an attorney.” So, you have these situations where, again, they’re nuanced. And those cases that happen in an interview room aren’t going to be addressed for months and months down the road until they reach the courtroom.
So, you think about the impact something very simple, like a contact out on the street between a patrol officer and a suspect, that can have a huge impact on the case when it finally makes it to trial. So, very complex. It’s easier just to get Miranda out of the way when you start talking to somebody. But for me, there were times where I was worried that once I bring up the subject matter that I want to ask you questions about, especially in my caseload of child abuse and sexual assault, that I don’t want to give you Miranda if I don’t have to.
[00:22:45] There are times where I would interview somebody on their own turf, go to their house, ask them, “Hey, I’m Detective Dave from X police department. I’d like to speak to you. Are you available right now?” I’m on their turf. I can let them know I’ve gotten a confession without Miranda before by just saying, “You’re not under arrest, and regardless of what we talk about during this conversation, you will not be under arrest at the end of our conversation.” No reasonable person can say, “I still thought I was going to be under arrest.” “Well, what did the detective say to you?” “He told me that I wasn’t under arrest. And that under no circumstances would I be under arrest at the end of the conversation, regardless of what we talked about.” So, I’m letting that person know you’re not under arrest, you’re not in custody, you’re on your own turf, you are free to leave at any time. I used to put in my narratives. I usually had a whole paragraph about kind of what the interaction was like. The tone, is it conversational and polite, or is it confrontational? If I’m going to get confrontational with somebody, I’m going to provide them with their Miranda warning.
Yeardley: [00:23:59] And these are the part of your reports that you had to submit to prosecutors?
Dave: [00:24:04] Yeah.
Yeardley: [00:24:05] So, you’re setting the scene, is what you’re saying?
Dave: [00:24:07] Exactly, because after having gone through suppression hearings, you start to see where the arguments are made by defense attorneys. And a defense attorney says something like, “Well, based on where you are situated in the room, did my client have free access to the door to be able to leave?” That’s what Dan’s talking about. “I left the door open, I put them closest to the door, so they had unobstructed path to an exit to be able to leave that room.” Situations where I would interview somebody at their house, did they invite me in, or did I just step in without being invited? Big difference. Did I limit their movements by patting them down and requesting that they only stay in the room where we were speaking.
I had a case where a suspect slapped a two-year-old girl and left a huge handprint on the side of her face. I went to his house to interview him. He invited me into his apartment. He had free rein of his apartment, even though that was a strategic thing for me. I was worried, he kept walking into this back room still talking to me, I can hear him, but he’s in the back room. Now, that’s a huge risk to me if he’s grabbing a gun from under his pillowcase. But it’s a tactical and strategic decision for me. I did not want to mirandize this person. He invited me into the house. I didn’t limit his movements. I never patted him down.
[00:25:38] Nobody can say I, representative of the government, was overstepping my bounds. This man invited me into his house, subsequently confessed. Never gave him Miranda, never became an issue at trial either, because everyone’s like, “Oh, should we argue this? Detective Dave wrote a whole paragraph about what was going on to set the scene.” So later on, the attorneys know suspect’s not being bullied by Detective Dave. It’s actually quite the opposite. He put himself at quite a disadvantage by going into the suspect’s house, letting suspect roam the house freely. I wasn’t being overbearing. I was just there to talk to him.
[00:26:19] So, you have situations where you have to mirandize. There’s been other situations where I’ve been in an interview, and the tone turns at some point and becomes confrontational, or I start calling somebody out about the lies that they’ve told me. Without ever having given them Miranda, I start confronting them on lies, and facts and circumstances. And then, I recognize, “Hey, this conversation turned the corner, I now need to provide you with your Miranda rights.” So, it’s fluid.
Yeardley: [00:26:51] Interesting. And would that have the effect of where they would clam up or– obviously, it’s case by case, but did you have situations where they were like, “Fuck you, I want a lawyer,” and you’ve changed the tone of it?
Dave: [00:27:03] Absolutely. There are times where once you get Miranda, somebody just says, “Nope. I’m not talking to you,” because they recognize the path of that conversation is not good for them. And now, he just gave me Miranda, and that’s an “oh, shit” moment for people. So, you have to massage those situations.
Yeardley: [00:27:21] But you’re allowed to use everything that came prior to that Miranda warning, are you?
Dave: [00:27:26] Absolutely, yeah. When I would talk to other police officers, or other police officers would watch my demeanor in an interview, I learned that from the veterans, the Dons of the world. Sergeant Dave. Detective Jeff, one of the most skilled interviewers I’ve ever watched. Very, very good. Knows how to read the room, knows how to command an interview, and how to direct where the conversation goes. Those are the guys that I learned from. And then, you learn more during a suppression hearing than anything, because you see where defense attorneys go with. “Well, the detective did this, and the government did this,” me being the government. So, really valuable lessons are learned by officers in suppression hearings, and it always frustrated me if a confession or a piece of evidence was thrown out as a result of a suppression hearing, officers will go, “Oh, that’s bullshit. i got screwed on this.” It’s like, “Well, you also lost your case. So, maybe make an adjustment. Are you going to change the way you do things, and are you going to learn from this? Or are you going to be bitter, and continue to operate the way you operated in this case, and it got shoved up your ass? Make an adjustment. Get better.”
Dan: [00:28:55] The easiest barometer for Miranda is, are handcuffs on the suspect? Because if they are, and you’re going to be talking about the case, you need to mirandize them.
Dave: [00:29:05] Right. The test is, would a reasonable person feel free to leave? That’s the test. And it’s always that ‘reasonable’ word again. Would a reasonable person, given these circumstances, feel as though they are free to leave? If the answer is most people would feel like they are not free to leave, and I’m asking them questions, I have to give Miranda. Have to. That’s why it’s so important to frontloaded with, “You’re not under arrest. And regardless of what we speak about today, you’re not going to be under arrest at the end of this conversation.”
Yeardley: [00:29:38] I might come back tomorrow and put handcuffs on you, but after this conversation when I get up and go, you’ll still be free.
Dave: [00:29:44] Right. And people might think that’s tricky. Have I violated your rights? I’m playing by the rules that are given to me. So, I love when people go, “Well, the cops lied to him in the interview room.” I can do that. I’m playing within the rules. I can lie to you, I can bluff.
Dan: [00:30:01] Suspects lie to us all the time.
Yeardley: [00:30:02] They lie to you guys all the time. I’m just saying that.[laughter]
Dave: [00:30:05] A lot of people think that that’s dirty cop work. The real world is not a vacuum. These are very fluid situations. There are times in an interview where you are like, “I really want to hit him with this fact right now, but I’m going to ask him four more questions before I do it.” It’s all strategy. And it’s thinking on your feet and being able to move with the conversation or redirect the conversation down the path that you want it to go. But cops need to be in charge in that interview room. If that dynamic changes and you’re on your heels, you’re going to lose that negotiation. And Dan was in sales for a long time, Dan recognizes that too. If you want to win, which for us, the win is get the confession, you’ve got to be in charge of that interview room. And it doesn’t mean that you’re pounding your hand on the table, it just means that you are intelligently and strategically pushing that interview down the path that you want it to go to.
Dan: [00:31:05] That said, there are plenty of situations that I’ve been in and that Dave has been in, you get a suspect in an interview room, and they say, “You know what? I don’t think I want to talk to you. I’m not going to talk to you.” Or, “I think it’s best if I had an attorney now.” I would say that’s an unequivocal invocation of their rights.
Dave: [00:31:26] Very clear.
Dan: [00:31:27] And it’s okay to ask clarifying questions too. So, you can say, “Okay, you just brought up your attorney. I just want to make sure that you’re stating at this point that you do not want to continue the interview, and that you would like your attorney present. Are we clear on that?” And they would either say yes, or sometimes they would say, “Well, I mean, it depends on what you’re going to ask me.” Now, that’s different. What we have to do in law enforcement is we have to ask clarifying questions, to say, “Well, what questions am I asking that you feel like you need an attorney on, so I won’t talk about those things, and we’ll go a different route with this interview?” Because that’s going to come up at a suppression hearing, for sure. Absolutely will come up. So, you have to ask clarifying questions. That way, you can show the court and show the defense attorney and everybody else in that room, “I just wanted to make sure that we were both on the same page, the suspect and I, during this interview that we were on the same page. And that I recognized that there was the mention of an attorney, and this is important, and I need to touch on this.”
[00:32:37] I’ve also had other situations where someone says, “I’m not going to talk to you. No matter what you ask me, I’m not going to talk to you.” That’s a clear invocation. I say, “Okay, well, I’ve got to go do some paperwork at my desk. I’m going to lock you in this interview room. You’re not free to leave. You’re under arrest at this point. If you change your mind and you want to talk to me, just knock on the door. Or if you need something, knock on the door. Can I get you some water? When’s the last time you used the restroom?”
Yeardley: [00:33:03] So, if they say I want an attorney, and then they knock on the door and say, “I changed my mind. I want to talk to you,” is that a sticky wicket for you?
Dan: [00:33:13] It’s not, but you have to ask clarifying questions. And you’d probably advise them up Miranda again on a recorded line. And I would say, “So, earlier when we spoke you invoked your right to an attorney. Now, you seem to have changed your mind. We need to talk about this, about that fact that you have now changed your mind.” And you ask very specific clarifying questions. “Do you now wish to speak to me without an attorney present?” “Yes.”
Dave: [00:33:43] Have you been threatened, coerced, intimidated, etc., in any manner, which made you change your mind?” You want to ask those questions too, because those are going to be brought up, they are always brought up. This thought that the police being heavy handed were in my clients face for six hours. I want to ask that upfront. So, it’s already answered by the time it gets to a suppression hearing. We talk about the dance.
[00:34:09] I recall two great examples of this. One is the episode, Wolf, where when I started probing suspect for information about his computers and his electronic devices. He said, “If we’re going to go down that path, then I’m going to want an attorney.” I had to ask clarifying questions to cover my ass saying, “I want to clarify that you will continue speaking with me and you don’t feel like I’m violating your rights currently, but you’re telling me that you don’t want to speak about computers and child sex abuse material, that kind of stuff.” “Yes, you have that correct, detective. I don’t want to talk about that. But I’ll talk to you about all this other stuff.”
[00:34:49] I had another situation where I remember being on patrol, daytime, and recall I was in a fairly busy intersection, and a vehicle was late going through the light going the opposite direction. And I remember seeing that going, “Should I go pull that guy over?” But I would have had to cross three lanes of traffic in the middle of a greenlight. And I was like, “It’s just not worth it. That’s potentially dangerous. So, I’m going to let it go.” But I remember the guy looked like, “Oh, shit, I just ran a red light, and there’s a cop in the intersection. Awesome.” So, I’ve got a great look at this guy. Two minutes later, I hear there was a vehicle just stolen, and it was from a convenience store about three blocks away. So, I’m like, “Oh, I just saw that truck. That’s the one who ran the light going the opposite direction.” Flip around, start driving back, trying to backtrack where the suspect was going. And I see the guy. I see him running now on the sidewalk. And he’s running back towards where he came from. Not in the car anymore. And I’m like, “That’s the same guy. That’s him.” I drive another block. I see the truck has been ditched. He probably saw me in that intersection and went, “Oh, shit. I stole a car. The cops are right there.” The victim in this case went into the convenience store and left the keys in the car, left the car running, “I’m just going to be in there for a few minutes.” This guy’s like, “Oh, sweet car running, I need to get across town.” Hops in, drives away with it. It just so happens I was two blocks away in an intersection when he did that. Lucky, I got lucky.
[00:36:30] I remember seeing this guy, and I turned around. He sees me turn around. He now runs back the other direction. So, we’re doing this cat and mouse thing. [Yeardley chuckles] And I finally just pull up on him as he’s crossing the street, and I put him at gunpoint because I’ve got a felony here with a stolen vehicle. I held this guy at gunpoint in the middle of an intersection, traffic stopped all around me. I’ve got him proned out, face down, arms out, legs out. And I start advising him of Miranda, in the middle of street at gunpoint because I wanted to ask him, “Whose car was that that you just took?” So, I said, “Weren’t you just driving? Why are you running now?” This is after Miranda, at gunpoint, interesting situation. And he said, “Oh, it’s my friend’s truck back there, and it broke down. So, I was running back to the store to get my friend.” I’m like, “Okay, this is bullshit.”
Yeardley: [00:37:31] [laughs]
Dave: [00:37:32] I said, “Who’s your friend?” “Oh, his name is– I don’t even remember.” I said, “Did you steal that truck?” And he said, “I don’t want to answer that. I want to remain silent.” And I said, “You don’t want to answer that question and want to remain silent? Does that mean that you won’t answer any more questions?” He goes, “No. If you ask me if I stole that truck, I don’t want to answer that question. But I’ll talk to you about anything else.” So, this guy’s confession– well, wasn’t a confession, his bullshit, was all blessed after a suppression hearing because I clarified with him, given at gunpoint, fairly coercive, I clarified with him that he just didn’t want me to ask the question about if he stole the truck. All the other stuff was still in play. And I remember one of the attorneys on that case came to me and he said, “That was some brilliant maneuvering there in recognizing that you could clarify and still kind of go down that path.”
Yeardley: [00:38:31] So now that we have Miranda and you say, “You have the right to remain silent, and anything you say can and will be used against you in the court of law and the right to an attorney,” why would anybody ever speak to you without an attorney?
Dan: [00:38:45] Well, part of is it’s a sales job. After you mirandize somebody, you obviously ask them, “Do you understand your rights?” 99% of the time they say yes. Sometimes, they have some other questions regarding the Miranda warning, which I’m happy to answer. But then, you say, “Okay, so this is what we’re dealing with today. Tell me what’s going on, man.” It’s a conversation. It’s not, “Why did you do this?” It’s a conversation that you have with somebody. And again, your demeanor, the way you deliver questions, the certain questions that you ask, have you built rapport with somebody? Those are all factors that weigh into whether or not somebody is going to give you a statement.
Dave: [00:39:27] I have been convinced that I was going to arrest someone whether or not they spoke to me at all. And they chose not to invoke, and by the end of that conversation had changed my mind. So, it cuts both ways. There are times where giving a statement actually helps out. Especially if it’s like a self-defense-type thing, I’ve been convinced where I’m like, “Oh, this guy’s going to jail.” And then, you talk to him and he’s like, “Oh,” you find out that there’s a lot of things that were left out by the complaining party. And now, you’re able to explain the circumstances and make that now a reasonable use of self-defense.
[00:40:10] I’ve been convinced on rape cases by a suspect who I never thought was going to give me a statement. And then after a half an hour, you’re like, “Okay, now I don’t have probable cause anymore.” It works both ways. So, Miranda is not a black and white issue. There’s a lot of gray area and nuance, as with any of these other cases that we’ve talked about, that you’ve got some leeway and some agility inside those conversations. But once it’s an unequivocal invocation, “I want to remain silent. I don’t want to speak to you. I want an attorney, we’re done. And unless you reinitiate contact and a desire to speak to me, we’re going to be done. I’m never going to get another shot at speaking to you about it.”
Yeardley: [00:40:56] Unless the suspect reinitiates. You can’t. Dave can’t.
Dave: [00:41:00] Correct. The suspect has to reinitiate.
Yeardley: [00:41:03] It’s so interesting and so nuanced and complex. Let’s put a pin in our case law lesson right here. Small Town Super Fam, thank you so much for joining us here on Patreon. You guys are the best. We’ll have another Briefing Room in two weeks, so don’t miss it. We’ll see you next time.[Briefing Room theme]
[00:41:29] Well, that was delicious. Here’s how it happened. Just like our main episodes, Small Town Dicks on Patreon is produced by Gary Scott and me, Yeardley Smith, and coproduced by Detectives Dan and Dave. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our editors extraordinaire are Logan Heftel and Soren Begin. And Logan also composed our Patreon theme music. So, that’s fancy. And finally, our books are cooked, and cats wrangled by Ben Cornwell. The team is forever grateful for your support.
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