Please Scroll Down to See Forums Below It doesn't have to be a formal arrest. If there is a restraint on freedom of movement of the degree associated with a formal arrest, then the person is "in custody" for Miranda purposes.
Legal Question: 4th Amendment
- Thread starter Metasomatized Ijolite
- Start date
It doesn't have to be a formal arrest. If there is a restraint on freedom of movement of the degree associated with a formal arrest, then the person is "in custody" for Miranda purposes.
txbondsman
New member
in the legal books he is maybe theoritically "in-custody", but irl, that won't fly. I guess he is wanting to know what the laws say, so you may be correct going by that standard. Irl, it doesn't work that way. Otherwise, you'ld have to Mirandize every person that you wanted to question for any offence. Ain't happening....
Only if you handcuff them. If you pull them over and ask them to get out of the car and then start asking questions they're not in custody, so Miranda doesn't apply. But if four cops have their guns drawn at the suspect, or you put him in handcuffs then his sense of freedom of movement is restrained enough for him to be "in custody" for Miranda purposes.
txbondsman
New member
cop pulls you over, wants to talk, your freedom to leave has just been lost, try and split. Handcuffs or no handcuffs, your under detention till he says so. From what your saying, he'd have to be Mirandized. In Texas, after he says the majic words, your under arrest, good cops will stay within the law, the 95 percentile will keep asking questions, the people under arrest just keep talking.
Unless you talking about murder cases or cases where it's life w/o parole, etc., the person arrested will sometimes be hollaring the next day "I wasn't read my rights!" to his lawyer. It will go something like this, the lawyer will tell him that he'll make that motion when they go to court, BUT if they go to court, the plea offer that was made previously will disappear and they will be facing ??? years in prison. They usually start to think of what happens when/if they lose, the "did I or didn't I get Mirandized" goes out the window, and he takes the probation or small jail time. That's 99% of the time, that's why you rarely ever here of it, other than TV...
Unless you talking about murder cases or cases where it's life w/o parole, etc., the person arrested will sometimes be hollaring the next day "I wasn't read my rights!" to his lawyer. It will go something like this, the lawyer will tell him that he'll make that motion when they go to court, BUT if they go to court, the plea offer that was made previously will disappear and they will be facing ??? years in prison. They usually start to think of what happens when/if they lose, the "did I or didn't I get Mirandized" goes out the window, and he takes the probation or small jail time. That's 99% of the time, that's why you rarely ever here of it, other than TV...
you have the answer in #2
either way if they dont' get a prosecution on the owner/tenant.. they pulled a big load.. idiots should have said they heard someone in the premises calling for help..
and you'd be surprised how many doors are "left open" and the police find them that way..
either way if they dont' get a prosecution on the owner/tenant.. they pulled a big load.. idiots should have said they heard someone in the premises calling for help..
and you'd be surprised how many doors are "left open" and the police find them that way..
correct! you will do great on your test tomorrow.
That is true that technically you are not free to leave when a cop pulls you over. But the courts have interpreted that kind of stop differently than a full on guns draw in handcuffs stop. There is a case that makes an exception to the Miranda requirement for roadside questioning - but not when in handcuffs, that is when the balancing comes in.
There are all sorts of "fictions" in judicial opinions. Like in one opinion two officers came on a bus and started asking a guy some questions and asked them if they could search his bag. The court held that this wasn't a stop (which would need RAPS) but only a mere accosting because a reasonable person in his position would feel free to leave the bus. That seemed ridiculous to me. Imagine being on a bus and two armed officers getting on board and you trying to squeeze past them to get the hell off the bus. I don't think I would feel free to leave in that situation, but that is how the court interprets it.
Being pulled over is more than a mere accosting. But a cop can pull you over if he has probable cause to believe that you committed some kind of traffic violation (which means that he can pull you over for just about anything). So once you're pulled over it is a stop (as opposed to a mere accosting or an arrest). The stop doesn't escalate to an arrest until there are serious physical restraints on your liberty or you have been formally placed under arrest. Like if a cop puts you in the car and takes you to the scene of a crime, that exceeds the scope of a stop and you are approaching the realm of custodial arrest.
TB the courts have now established through case law that handcuffing would lead the reasonable person to conclude that they are under arrest/in custody (wheter they are or not). Therefore if questioning pertinent to the crime, Miranda warnings should be issued.
Although during a routine traffic stop you are not free to go, you are only under investigative detention. The courts find a difference between this and being in custody. The handcuffing is a major factor that the courts have ruled on and made it clear that interrogation while handcuffed whether on the side of the road of other places equals a reasonable person to believe they are in custody. in custody + interrogation = miranda.
But you're correct. unless the stop is being videotaped, its the officer's word vs. the suspect on whether he was mirandized or not.
Although during a routine traffic stop you are not free to go, you are only under investigative detention. The courts find a difference between this and being in custody. The handcuffing is a major factor that the courts have ruled on and made it clear that interrogation while handcuffed whether on the side of the road of other places equals a reasonable person to believe they are in custody. in custody + interrogation = miranda.
But you're correct. unless the stop is being videotaped, its the officer's word vs. the suspect on whether he was mirandized or not.
I can't believe I just read all this.
