Mike Kenny, attorney, Bauer, Crider, and Parry: The second portion of it, on Miranda, or I'm sorry interrogation. Interrogation is essentially what it is - a question designed to elicit an incriminating response. And, a lot of that, sometimes, believe it or not, is litigated. There have been cases where a person may have invoked his right to remain silent, and said he did not want to answer any questions. And officers would begin to have a conversation and begin talking. But not, claim they’re not asking questions. But, maybe in the way they design their questions.

There is a famous case where there was a homicide, and there was a discussion about, you know, where, you know, the these poor victims that were killed, you know. Wouldn’t the parents like to see where they are? And just help these parents come find the body and give them a Christian burial, so to speak. And the conversation between the officers in the front seat of the car, where the gentleman in the back is hearing all this, the court was inquiring, “Was that conversation designed to elicit an incriminating response for him?” Where he says, “Well, all right. Listen, you go around the corner you’re going to find, you’re going to find where I buried everybody.”

And courts look at the actions and intent upon the person making the statement. So, the short idea is, not every interrogation, necessarily, is a question. But it's, “Was it designed to elicit an incriminating response?” And, in that particular example, about talking about giving these children a Christian burial, you know, the courts were asked to interpret whether, or not, that conversation between two officers in the front seat driving the suspect around was designed to elicit an incrementing response from him.

So, that’s the basics of Miranda. And when you get your Miranda warnings you have to be in custody, and you have to be propounded questions or you have to be questioned or spoken to in a manner that is designed to elicit an incriminating response. Now, when that comes up, when the person is in custody the officer has to read these warnings. And I get, all the time, people when they come, after they get arrested, oftentimes they tell me, “Hey, listen. Nobody read me my rights. You know? So, what does that mean?”

And that’s the question, right? What does it mean if an officer has you in custody and does not review your Miranda warnings? And what it means is, it depends. That’s the short of it. It depends.

There are plenty of cases were officers make an arrest and they don't ask any questions. And if they don't ask any questions the failure to read Miranda warnings is a irrelevant. It only matters whether, or not, a person is answering questions. And the reason why it only matters, is what some people might believe, “If I don't get my read my rights the arrest goes away, or the charge goes away,” is not accurate. The cure for the error in law enforcement, in failing to read Miranda warnings, the cure for that is that any statements made without being warned, when they should have been warned, any statements made are suppressed. Meaning they are kept out evidence. So, they don't make the charge go away, and they don't make the arrest go away.

So, sometimes that matters, and sometimes it's completely has no impact on the arrest. And I’ll give an example when it matters. What comes up very often in drug possession cases. In Florida, we have an understanding of the law possession where it’s called constructive possession. And constructive possession means where a controlled substance may be in the possession of more than one person. And it’s not in the hands of the person, and it’s not in the pocket of the person, or on the body, or so near to them to be considered on their person. But it's maybe in the area.

For instance, a car is the best example I can come up with. Two occupants in a vehicle. The vehicle is stopped for some for some traffic violation. An officer comes over the driver side of the window and maybe even notices in plain view a controlled substance sitting in the center console. Or, sitting on top of the center console. In that particular case you have a constructive possession issue. If the officer takes both of the individuals out of the car and begins to interrogate them. At that moment you would have a custodial setting, and you would have interrogation asking, “Hey, whose drugs are these? Where do they come from?” You know? “Who was using it.” That part is when the Miranda warnings would matter. If a person answered the question, and they said, “It was mine.” Or, another person said, “It was mine.” Those are very critical responses. Those responses are what the state would be able to use to show that this particular individual was in constructive possession of that controlled substance.

So, if we have a case where there's occupants in a vehicle, and an officer stops the car. And an officer pulls both occupants out of the vehicle and begins to ask them questions without providing Miranda warnings. And maybe one of those individuals says, “Yes, the drugs are mine.” Well, that would be a crucial aspect in the defense of this case. Because what I would look at say, “Well, listen. My client was in custody. The officer began to ask my client incriminating questions, and the officer should had read him Miranda warnings.” The failure of the officer to do that means that I would ask the court to suppress my client's admission to the possession of the controlled substance found inside the vehicle.

Now what does that mean in the big picture? Well, in the big picture, like I told you, Florida has a possession called constructive possession. In a constructive possession case, the State is required to prove that the person possessed a certain item. And in a constructive possession case they have to prove that the person knew of the item, and the illicit nature of that substance, and that the person had the ability to exercise dominion and control over that substance in the car. So, if you suppress a statement from my client where he admits knowledge of it, or he admits ownership of it, and all we have is a car with two people inside and a control substance found inside. Without that admission, I would argue there's a very good case to make that that possession case can't stand. The reason why it can't stand is because the State is without any evidence to show that my particular client, as opposed to the other individual in the car, was in constructive possession. Without that admission, the State will have a very hard job showing my client exercise dominion and control. The State would have maybe a less difficult time, but still a difficult time showing that my client had knowledge of it. In a constructive possession case you have to both know it's there, but knowing it’s there is not enough. You have to know is there, and you have to exercise that control over it like that substance is yours.

You can think of plenty situations where a person may get into a car, and see maybe the driver of the car doing some that that is illegal, or that he would necessarily do it. Because you know the driver has a controlled substance doesn't mean you're exercising dominion and control over it. And that's what the courts are concerned about. So, that's where Miranda warnings and any maybe a motion to suppress the statement matters. That’s where if a cop fails to read you Miranda warnings, and the statement gets suppressed, that may have an outcome where the case actually gets dismissed.

In another case, where officers observe a bank robbery, and see a person running out of a bank with a bag full of cash and a firearm in his hand. They can run up, they can arrest him, they can fail to read him warnings and the guy may make no statements. It really won't have much of an impact whether, or not, he read Miranda warnings or not because you have evidence that tends to suggest the officers observed a robbery in progress.

B: Right.

M: So, it matters. It's very fact specific what actually happened in the particular case. Now, we talked about it’s up to the person, it’s up to the client to exercise that right to remain silent. So, what happens if an officer reads a person Miranda warnings and the client says, “Listen. I’d like to remain silent. I don't want to answer any questions.” All questioning must cease. They don't get to ask him any more questions at that moment.

There's also what must be understood there's two specific rights: there's a right to an attorney and there’s right to remain silent. So the person says, “I want my lawyer.” That's a very different right. That’s a right saying, “I want to have a lawyer. Either have one appointed for me before anything happens, or I don't want to do anything until I have a lawyer present.”

A right to remain silent is saying, “I don't want to answer any questions at that moment.” That right can later be waived at some point. If an officer comes and asks a person a question again,, after a period of time, but an officer still has give the person a Miranda warning.

So, the power, in essence, as far as the questioning of whether answer questions with the suspect. The suspect has that right to waive. And the suspect has that right to invoke his rights. And, of course, my advice to anybody is whether you think you're as innocent as possible, you never want to find yourself involved in a conversation with law enforcement where they’re investigating a crime without at least having a lawyer present. My advice is until we know what, in fact, the law enforcement is looking into. Until we know what the circumstances are, you always want to have a lawyer present with you, and you probably don't want to answer any questions.

B: Use that right to remain silent?

M: Absolutely. Absolutely.