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If the police don't read me my rights, they can't use my statements against me, right?

Answer: Sometimes, they can.  Even if the police fail or 'forget' to read you your Miranda rights, they can get away with having the things you say used against you if a court finds that the circumstances of the questioning did not rise to the level of "custodial interrogation".  What does this mean?

Fist, let's review the Miranda warnings

While we have all heard the Miranda warnings acted out in television dramas for years, it may be helpful to review them, in light of laws being interpreted and reinterpreted every year in the state and federal criminal court system.

  1. The individual under arrest has the right to remain silent. Despite the heavy-handed coercion made by detectives in the TV interrogion room, the suspect under arrest has no obligation to answer any questions posed by the police. 
  2. If the individual says anything, it may be used as evidence by the prosecutor in the court of law.
  3. The individual has the right to request the presence of a qualified attorney prior to questioning and any time during the questioning process.
  4. An attorney will be appointed if the suspect cannot afford to hire one.

The United States vs. Danielle Faux

Consider the questioning by the police recently of Danielle Faux. Ten to fifteen armed federal agents stormed her house at dawn. They woke her and her husband up and told them they were executing a search warrant at her home. When she told the agents she was leaving that morning on vacation, she was told she was "not going anywhere". She was questioned for two hours. When she needed to use the bathroom, agents went with her. She was not allowed to use her phone. After she made incriminating statements to the agents, she was indicted for health care fraud. She was never read her rights, or told that she had the right to remain silent.

The court in U.S. v. Faux held that the agents "stepped right up to the limits of constitutionally permissible conduct" and 'just managed to toe the line". They found that the agents did not exert coercive pressure on Ms. Faux, that she could move about her home and that the tone of the questioning by the agents was largely conversational.

Florida v. Powell: Because words matter

In a related Florida case of interest, which ultimately made it's way all the way to the U.S. Supreme Court, the specific wording of the Miranda warning came into question. 

In 2004, Kevin Dewayne Powell was arrested in Tampa and charged with illegal possession of a firearm by a convicted felon. He was read (and signed) the Miranda warning off a standard Tampa police form which used a variation of point number three: the right to have an attorney present during questioning.

The wording used by the Tampa police force was: "You have the right to talk to a lawyer before answering any of our questions."  

During questioning, Mr. Powell acknowledged that he purchased the firearm illegally for personal protection. His confession was, indeed, used against him and he was convicted.

Mr. Powell successfully appealed to the Florida State Supreme Court, however, on the grounds that the wording did not precisely follow the wording ruled on by the Supreme Court in the Miranda v. Arizona in 1966.

The proper wording of the Miranda warning should have read, "You have the right to an attorney."

The Florida court agreed that the wording read to Mr. Powell did not make it clear that he had the right to have an attorney present at all times during questioning by police. The court ruled that, based on the wording, Mr. Powell could have reasonably believed that he only had the right to talk to an attorney prior to questioning, not have one present at all times during questioning. His conviction was overturned.

The Supreme Court decision

Florida appealed the State Supreme Court's decision to the United States Supreme Court. The majority opinion ruled that, while the warning was not as clear as they would have liked, it was sufficient to allow Mr. Powell to understand that a lawyer would have been made available at any time during questioning. The U.s. Supreme Court overruled the Florida State Supreme Court and the conviction was reinstated.

Lesson Learned

The right to remain silent and not make incriminating statements is one of the most important rights one has. That's why the Miranda warnings exist - to remind people accused of crimes not to say anything. If it were up to the police, they would never read these warnings, but would instead try to get a person to admit to some criminal conduct. And that's just what they did here. Custodial interrogation does not just mean questioning by the cops in a police station in a locked room. Ms. Faux should have been read her Miranda warnings because she was not free to leave and was surrounded by FBI agents - a prisoner in her own home.

In Mr. Powell's case, whether he had a lawyer with him in the room with him really wasn't the issue at all. If he had just not admitted anything, the lawyer he eventualy hired may have had a chance to help him avoid a conviction.

And so here is the most important advice I can give to anyone when questioned by the police: Keep your mouth shut.

If You Find Yourself Under Investigation, Find Yourself A Good Lawyer

If you are under questioning or have already been arrested for a crime in Jacksonville or elsewhere in Florida, make sure you hire an experienced Jacksonville criminal defense attorney. I have been protecting the rights of people arrested for state and federal crimes in Jacksonville and throughout Florida since 1995. Don't trust your future to a Florida criminal defense lawyer with less experience and knowledge of the law.

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