Albuquerque Criminal Lawyer Blog

Miranda rights suffer another setback in the United States Supreme Court case of Berghuis v. Thompkins. The court held that is not enough to remain silent to stop police questioning, a suspect in a criminal case must explicitly invoke his or her Miranda rights.

The ruling will allow police to interrogate suspects for hours on end so long as the suspect does not state to the police the wish to invoke Miranda. It is rightfully feared that the police will abuse the greater latitude particularly in cases of poorly educated, mentally ill, impaired, or generally unsophisticated suspects. The court's ruling may have even greater consequences for those whose first language is not English particularly in the 10th Circuit where non-English speaking suspects may waive important constitutional rights without the benefit of an interpreter.

Berghuis v. Thompkins represents just one more setback to Miranda. In fact, the exceptions to Miranda are so numerous as to render it virtually meaningless even before this opinion. Perhaps more troubling than the opinion itself is the Court's willingness to cast aside long established constitutional rights. This same mind-set is present throughout the Circuit Courts as well. So what does it all mean?

It means a suspect should keep his or her mouth shut except to the degree necessary to assert Miranda Rights. After all the right to remain silent under the 5th Amendment is the essence of Miranda. The fact is that there are so many exceptions to Miranda that anything said to the police is likely to end up in court. Likewise, any physical evidence discovered as a result of questioning will be admitted. It is extremely rare that the evidence would be completely suppressed. It is rarer still that a case would be dismissed for a violation of Miranda. On the other hand, there are countless ways that a suspect's statements may damage his or her defense.

Many labor under the misconception that the legal system is fair and balanced. Just as many believe that accused persons are presumed innocent. It is not and they are not. This is made most clear in the cases involving Miranda disputes. Once a "confession" is extracted or even alleged to have been extracted, the burden shifts to the defendant. Clearly, judges are going to believe police over an accused. If there is any question as to the legitimacy of the Miranda warnings, and the suspects waiver of Miranda rights, the courts will err on the side of the police. This made clear each and every day in criminal courts across the country. Ties go to the prosecution as in the recent 10th Circuit case of US v. Silva-Arzeta where the police alleged that the suspect consented to the search of his residence despite the fact that he did not speak English, no interpreter was provided and the suspect was first taken into custody a distance from his residence.

In light of Berghuis v. Thompkins, Silva-Arzeta, and the growing list of exceptions, is there any question how the courts will rule in case of a dispute over Miranda? Keep this in mind as Arizona's "Papers Please" law moves forward. It is a fairly safe bet that these trends will quickly come into play there.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest. The recent New Mexico Court of Appeals decision in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls. Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant's phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant's attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant's Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody. The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

The lesson here is clear: Stop Talking and Hang Up the Phone. It is exceedingly unwise to voluntarily give incriminating statements to a police officer over the phone particularly when you initiated the call. Miranda will not protect you here.

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington. The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.