The Star-News


These days Miranda seldom presents a problem

Sat, Sep 07 2013 12:00 PM Posted By: Tom Basinski

Back in the 70s and early 80s, the big question was “When do I have to advise a suspect of his rights under Miranda?”

Some thought advisement was required when the investigation focused on the suspect. Wrong. Other Miranda questions, too numerous to list here, flourished in law enforcement.

Finally, the world of Miranda stabilized and the law today is that you must give the Miranda warning when two things happen. 1) The suspect must be in custody. This doesn’t mean a mere detention where a cop is holding you pending some other variable. It means you are under arrest. 2) You must be questioned. This doesn’t mean the officer is asking general questions during a street detention, or while filling out a booking slip. It means the officer is asking questions relative to the specific criminal investigation.

Years ago, my partner, Alan Smith, and I arrested a guy for killing his girlfriend. We tracked him down within hours and when we found him he had a superficial wound from a botched suicide attempt with the killer gun.

Cassette tape recorder running at the hospital, we advised him of his rights. He asked for an attorney. We ceased questioning, but left the recorder running. Without prompting he said, “You know, she had it coming.” He told how she was always on him about everything; how her nagging drove him to do it.

He rambled on with his statement for about 10 minutes, admitting to shooting her. Before trial his attorney filed a motion to get his statement disallowed because he had asked for an attorney. Smith and I were nervous because the hearing was before a liberal judge. We sat in the courtroom listening to the tape.

The prosecutor stood up to rebut the defense’s allegations. The judge told him to sit down. Smith and I looked at each other and said, “Oh crap.” We knew the judge was going to disallow the statements. Instead, the judge said to the defense attorney, “What are you doing here? These officers didn’t ask your client anything. When he asked for an attorney they never said another word. Motion denied.”

To be as current as I could be on the topic of Miranda I sought out recently retired Deputy DA Marty Martins who, for 18 of his 23 years, helped train local officers in all aspects of current law, including the Miranda warning. Martins sent me the legal requirements and told me additionally to mention the great disservice that movies and television do to the public’s concept of police work relative to Miranda.

For example, a police officer is in a foot chase with some mope. The cop tackles him. A fight ensues. After the crook is subdued, the cop pulls out his Miranda card and advises the suspect of his rights while they both are bruised and gasping for breath. The only place that happens is on the screen.

No matter what horrible thing the suspect did I always tried to establish a rapport with him or her. Sometimes, especially when I worked sex crimes, this was difficult. I never said, “I’m here to help you,” because I wasn’t. I was there to do my job.

I did lie sometimes by saying, “I understand.” I never understood why a grown man would sexually molest a child, but I said I did. Often, a look of relief would come over his face and he would say, “You do understand. I can tell.” He often would detail exactly what happened. Even though I was often sickened by what he told me, I knew that I was figuratively pounding a nail in the coffin of this worthless waste of air.

The Miranda warning is well settled now. Sometimes an attorney will construct a smokescreen and accuse the cop of violating Miranda. Unless the officer really screwed up, the complaint doesn’t fly.


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