Exclusion of un-Mirandized in-custody police interrogation responses is the required criminal defendant-beneficial remedy, says Fairfax criminal lawyer

Exclusion of non-Mirandized answers to police by those in custody is the remedy required by Miranda v. Arizona, 384 U.S. 436, 444 (1966). As a Fairfax criminal lawyer, I know that Miranda says in the foregoing regard: “Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id. 

Do all police stops require Miranda rights before police question me, and exclusion of your answers if those rights are not read?

As a Fairfax criminal lawyer, I often learn about instances where police handcuff or otherwise restrain my clients without saying they are under arrest beyond the twilight zone that does not require Miranda rights. The initial police investigation stage — whether under  Terry v. Ohio, 392 U.S. 1 (1968), or otherwise — does not always require Miranda rights. The federal and Virginia Supreme Courts have constructed a twilight zone during an initial police investigation whereby a police officer usually does not need to advise you of your Miranda right to remain silent and to decline answering LEO questions without a lawyer’s presence (and even your lawyer’s presence does not change your prerogative to exercise your right to remain silent.) Berkemer v. McCarty, 468 U.S. 420 (1984); Harris v. Virginia, 27 Va.App. 554 (1998). Talk to a qualified Virginia criminal defense lawyer about what needs to be done to pursue exclusion of your answers and other statements to police, whether the argument is custody or voluntariness.

Was I in the type of police custody requiring Miranda warnings?

“The ultimate inquiry into whether an individual is subject to custodial interrogation is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.’” Spinner v .Commonwealth of Virginia, 297 Va. 384, 392 (2019) (citation omitted). To me as a Fairfax criminal lawyer, handcuffing without telling the suspect they are under arrest triggers requiring Miranda warnings. Even if police tell a handcuffed suspect that they are not under arrest, the very act of restraining their liberty to that extent should be able to require Miranda warnings and exclusion of your statements for not issuing Miranda warnings under such circumstances.

What if police start interrogating me un-Mirandized and then Mirandize me?

Late Mirandizing does not automatically solve the taint of earlier violating Miranda. Voluntariness requires considering the totality of the circumstances: “‘[W]e must [independently] determine whether, in light of the totality of the circumstances, including not only the details of the interrogation, but also the characteristics of the accused, the statement was the product of an essentially free and unconstrained choice by its maker, or whether the maker’s will was overcome and his capacity for self-determination critically impaired.'” Spinner, 297 Va. at 392 (citation omitted). Exclusion of your statements to police considers whether you should have been Mirandized, whether you were properly and correctly Mirandized, whether your statements were elicited by police words and actions, and whether your statements were voluntary whether or not Miranda applies.

What should I do if the police detained me and questioned me un-Mirandized

Whether or not you have been questioned by police pre- or post-detention, when you are charged with a Virginia criminal offense, you should consult timely with a qualified criminal defense lawyer, to address your defensive game plan, including but not limited to your prospects for exclusion of your statements at trial. Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. To schedule your strictly confidential free in-person initial consultation with Jon Katz about your court-pending prosecution, contact us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.