I came across this article and was blown away by the tenaciousness with which law enforcement wishes to violate basic constitutional rights.
The problem for the cops? If they Mirandize you, and you understand what it means and actually invoke your right to silence (note: you have to say you are invoking your right to silence, otherwise it will be used against you), then you’re less likely to confess to things the Cops want to convict you of.
The article provides a lot of advice for cops, such as “inviting him or her to the station to talk” when he or she isn’t in “custodial restraints.” The logic here is that since you aren’t in handcuffs, and voluntarily go to the police station for questioning, the entire encounter is a voluntary “tier 1” encounter, and therefore they do not have to mirandize you.
This advice is based on two Supreme Court cases: Oregon v. Mathiason and California v. Beheler. What should you do? First, ask if you have to go to the station. If the answer is “yes”, then tell them you want a lawyer. If the answer is “no”, do NOT go to the station. If you have a right to disengage conversations with law enforcement, you should, immediately.
The cops also suggest undercover interrogations by police officers pretending to be prisoner, pursuant to the holding in Illinois v. Perkins. This is why I always tell my clients whom are currently in jail not to talk about their case or any wrongdoing with anybody in the jail. Some of them prying for information could be undercover cops, but anybody in jail is not really your friend, especially if telling on you means a lighter sentence for them. Keep your mouth shut, and talk to your lawyer.
The article closes out with strategies for law enforcement to use to get around your rights by deceptively arresting you for a lesser charge, mirandizing you, and then seeing if you’re willing to tell them information relating to the bigger charge because it seems like it’s a no-big-deal arrest, and implied waivers of the Miranda rights. What to do here? Never say anything once you’re under arrest. Just ask for an attorney.
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