Local news story commented on Atlanta occupy protesters asking to have their cases dismissed. Given the sheer number of the protesters (relative) I begin to wonder if the arrest “looks” the same as a regular arrest. Is having your Miranda rights read to you applicable in this situation? What is the rule here? If a protester was so inclined, couldn’t they bug out at the time Miranda is being read to another protester? When does the actual arrest take place?
An arrest takes place when the suspect understands he is under police control and no longer free to leave of his own will. Normally this means the policeman has laid at least one hand on his person and indicated verbally that he is under arrest. It also means that if the cops ask you to come to the police department and say you are not allowed to leave, you are de facto under arrest regardless of what they later claim.
Also, a Miranda reading is NOT required by law. The Supreme Court has ruled that a person cannot waive their rights if they do not first understand their rights. Therefore, police read the rights during the arrest in order to prevent a suspect from later claiming he did not understand his rights. The police do this voluntarily. Failure to read the Miranda rights may invalidate a later statement or confession, but it does not invalidate the arrest.
I can’t comment further without knowing exactly what their motion is.
The definition of arrest, is at times not a clear academic one, however, if we look at an internal quote from Terry v.Ohio;
My law dictionary cites an Ohio case, coincidentially, I wont type the whole thing out, but it is four pronged, 94 OH App. 313.
I suspect they wish to have the charges thrown out due to a failure to be read thier Miranda warnings.
While an prolonged investigative detention can turn into an arrest, there may be a fine line.
Many times a person can be “in custody” in the field, but not in custody for purposes of Miranda.
Even the SC has stated, right from Miranda, that general “on scene” questioning does not trigger Miranda.
Do they need to be Mirandized before Sargent Baloney walks up out of the blue and sprays them with pepper spray?
As I understand it, you only need to be Mirandized before being questioned, not before being arrested. Assuming that all the police intended to do was remove the protestors from the site, book them, and then charge and release them without questioning, reading them their rights wouldn’t be necessary.
Anecdotally, the only time i’ve ever been present for a police arrest was years ago when I had to call the cops on a drunk person in my restaurant who was being unruly and had shoved one of my employees who asked him to leave. The exchange went something like this.
Cop: “Do you want to press charges?”
My employee: “Hell yeah.”
The cop them proceeded to grab the drunk guy by the arm, spin him around, bend him over a table and cuff him in about half a second, whereafter he was hustled into the squad car silently. If he was read his rights at the time, it didn’t happen until after he was in the car.
I’ve arrested many people. I have rarely read them their rights. I do now because I am a detective and I question suspects. There is no need to routinely read Miranda rights just because of an arrest.
I was arrested with a mass of people at a protest and nobody was Mirandized. Nobody was questioned and there was a public defender waiting for us at the jail.
As said, ARREST can include other factors, not just a trip to the jailhouse.
I have a 6th Circuit case in my notes where they state placing a person in back of a police car under certain circumstances is an arrest.
Also, demanding booking information does not violate the person’s 5th AM against self incrimination.
You are seized for 4th Amendment purposes whenever you’re not free to leave. Things like being taken to the station house are just excellent evidence that you weren’t free to leave.
However, Miranda is a 5th and 6th Amendment protection, it ensures you don’t waive your right to silence and advice of counsel without understanding that you have those rights. If you are arrested but aren’t subject to a custodial interrogation and then you’re released, it doesn’t matter if you heard Miranda warnings. Your 5th & 6th Amendment rights rights to silence and counsel never came into play. Police can ask for information, but only if its nontestimonial. Identifying information, medical tests like a breathylyzer, stuff like that. Nothing that asks you to “tell me what happened.”
In other words, Miranda warnings are irrelevant to the question of when you were arrested and whether you were properly arrested or not.
However, because Miranda warnings are so widely known in popular culture, they are often the thing that makes people realize they are arrested. We watched a video in which Monica Lewinsky tells how she was detained in a hotel room by law enforcement personnel. It didn’t occur to her she was arrested until they Mirandized her. That’s a common perception.
30 years on the job (25 full time, retired, the past 5 years part-time patrol). During the last 4 years of my full time career I was in the bureau as an alcohol compliance investigator. I hadn’t previously desired to be there, but holding a rank bumped up my pension amount. And there had been no Sgt or Lt slots on the patrol division.
In 30 years I can honestly estimate that way, wayyyy less than 10 percent of my arrests involved Mirandizing someone. There is just no reason to question someone when I already know what they did!
Even as an investigator I think I only read subjects their rights on 2 separate occasions. Once when a break in of a bar lead to nabbing a burglary ring, and once when a tavern with a cabriolet license had some underagers stripping.
Twice in 4 years. That’s it.
‘cabriolet license’ I assume is in the sense of operating with the top down like a convertible?
If I recall correctly from the incident last year, legally, they just plain aren’t supposed to walk up to people out of the blue and spray them with pepper spray. They need to have arrest-level probable cause, not just “okay, time to water my hippies…”
Our state has very strict rules about suspect interviews. Once they become suspects the interviews must be videoed. Miranda must be read and signed on video. There can be no pre-interview. As a patrol or traffic officer it rarely came up. If they gave an excited utterance while being transported and taped in my car great. But I wasn’t questioning suspects. My current assignment is as a detective so I do a lot more interviews. I’m sure at some point I’ll go back on the road.
Many states do now, thanks to ridiculous court rulings made by over paid fat asses that have no idea whats going on in real life.
But hauling someone back to “the station” is a rarity here. I’ve done it, but only a handful of times.
I think what the OP and the rest of America doesn’t know but is asking, is, about the dramatic license that is taken by all television shows and movies. You know what I’m talking about, Loach! The cop is still fighting with the perp, and while trying to get the cuffs on, huffing and puffing out of breath, is gaping to say “you…[huff, puff] have the [gasp!!!] right to [glurb!] remain silent!!!”
It’s cliche in anything involving law enforcement on TV shows and movies, but it’s 100% pure crap.
It has been pointed out to me that in Great Britain it is pretty much that way. Rights have to be stated at the time of any arrest. But not here. Yet.
I was around for some of the Occupy Chicago protests. In particular, I remember this event.I was watching from the sidewalk and across the street because I was on supervision for an unrelated misdemeanor and didn’t particularly want to go to jail. The officers were definitely reciting people’s rights as they arrested them. I wouldn’t be surprised if they got a little sloppy towards the end, because they were arresting about 130 people and the whole shebang took hours.
Interestingly, the Grant Park arrests were recently tossed out of court because there had been no similar arrests at other functions in the park that had ran long, such as President Obama’s inauguration rally.