Brad Post, host: Welcome to floridadefense.com podcast. We are speaking to Tampa defense attorney Mike Kenny. Mike, how are you doing?

Mike Kenny, attorney, Bauer, Crider, and Parry: I'm doing well. How are you?

B: I’m doing good. Well, today we’re going to be talking about Miranda rights. You always see on TV, you know, police officers reading criminals their rights.

M: Sure.

B: Talking about kind of when, why they’re being read those. When. Just kind of the purpose behind them. I'm sure you get a lot of questions on Miranda rights?

M: All the time. All the time.

B: So, let’s talk about it.

M: All right. Well, so, the first thing is the rights that we talk about. Probably, as you mentioned, everyone, who's seen a TV show involving police, probably, at some time or another, have heard what these rights are.

And they, the Miranda warnings, are very specific. The courts have ruled that there have to be essentially five warnings that are given to a person. And those five warnings are they have to be told that they have the right to remain silent. That’s the first one. The second one is that anything they say can be used against them, or will be used against them. The third one is that they have a right to a lawyer. The fourth one is that if they cannot afford to hire a lawyer one will be appointed to represent them. And finally, that they can choose to exercise these rights at any time. And it's these five rights, in a sense, sometimes different states, state attorney offices kind of hand out cards, to the local law enforcement, to read these cards that meets those five very crucial points in order to interrogate a suspect.

And really, the real point of a Miranda warning is: most people probably have at least an idea that they don't have to answer questions. It’s not really designed to remind somebody of something. The Miranda warnings were developed in response to, you know, years ago people think about being interrogated, and they think about this dark room where they’re sitting under a bright light and there’s a whole bunch of officers propounding questions against a person. And it's designed to, kind of, take that stigma away from the questioning.

Because when you're when you're answering questions, or being questioned by law enforcement, it has a very, quite frankly, scary impact. Even a person who’s a 100% innocent might feel nervous, might feel compelled to do something that he normally wouldn't do. Or, invite questions that he normally wouldn't invite. So, the idea was to take that stigma out of it, and to have the actual person interrogating you actually tell you, “You have these rights.” Sort of shows a transition of power. The person being asked is the person who has that power, and the power to exercise those rights.

Now, Miranda warnings only come up in one specific legal setting. And that is during a custodial interrogation. All right? So, what that means is, a law-enforcement officer, if he engages someone in a conversation, and he's not in custody, that is not a situation that might require Miranda warnings. A lot of times, what I see in police reports, officer’s use the term ‘spontaneously stated.’ And spontaneously, obviously, by the definition means just uttered it without even being primed. Without even being questioned. And the reason why it’s significant is people can obviously say something on their own, offer something on their own; that might incriminate them. And the difference is, “Was that a setting where a person should have been warned?” And, not only should the person have been warned, but, “Was the statement that was made in response to a question, an interrogation?”

So, the first thing that you have to have evaluated when a person provides statements. When I have a client who comes in, and there's there is some evidence to suggest that he or she may have made some statements that may be an admission to a crime, or tend to incriminate, the first question we have to ask is, “Was this a custodial interrogation?” That means you have to look at two aspects. Not only, “Was the person questioned?”, which is the interrogation aspect, but, “Was the person in custody for the purposes of Miranda?”

What most people think of when they hear the term ‘custody’, is they think, you know, under arrest. And obviously when a person’s handcuffed, sitting in the back of a patrol car, or sitting in a jail cell, I don’t think there’s going to be any argument that that person is not in custody. But there are other instances where a person is in custody - for the purposes of Miranda. Meaning, he or she is not handcuffed, necessarily. He or she is not sitting in the back of a police cruiser, or sitting in a jail. There are some instances where a person willingly walks down to a police station to answer questions, and he sits inside a police station. And he is free to leave, and he's free to not answer those questions. For Miranda purposes, that is not a custodial interrogation. So, that wouldn't be a situation where a person would be required to have their Miranda warnings read to them.

So, the custody part is a part that gets litigated at times, and it's very significant. And, for the purposes of this podcast, the idea that we need to understand is that a person has a freedom has been limited. That this person's freedom of movement has been limited by law enforcement. And that's the part where we ascertain that that person is in custody. Meaning, an officer’s conducting an investigation of some type. A person has been seized. He may not be handcuffed. He may not be under arrest. But at this particular moment he is not free to leave. And in that particular situation, he understands that he is not free to leave. And in that particular situation, he is in and custody for Miranda purposes. So, that's the first box that you have to check off – that the person's actually in custody.

And things like this may come up when an officer’s doing a DUI investigation. And during a DUI investigation, the first thing that happens is the officer turns on his overhead lights, and a person has stopped the car. The officer maybe walks over to the car, as soon as the office has contact initially, he doesn't have to come out and just start reading Miranda warnings. He might have a conversation. and maybe when the officer detects some signs of impairment, and then begins a DUI investigation, it’s really at this point where it's clear, both to the officer and the person being questioned, that this person can’t just walk away. And at that point, if the officer’s going to start to ask some questions like, “Where we’re you coming from tonight?” How many drinks did you have?”, anything like that. That is something where he would be in custody, and any question that are going to be asked have to be warned first.