Written by attorney James J White

Were You Read Your Rights?

Police cannot manipulate the invocation of Miranda rights by simply delaying the time of formal arrest. [1] In order to triggerMiranda protections, the suspect must be taken into custody or otherwise be deprived of his freedom of action in a significant way. [2] Interrogation becomes custodial for Miranda purposes when the officer already has probable cause to justify arrest for the offense which is the subject of inquiry, regardless of whether a suspect is actually placed under physical arrest. [3]

Furthermore, a suspect does not necessarily need to be verbally told that he/she is under arrest for an arrest to take place. [4] For example, in Seattle v. Sage, an unconscious defendant was deemed by the court to be under arrest when the officer informed the aid crew attending to the defendant that the defendant was under arrest. [5]

In the absence of Miranda warnings, statements made by the defendant must be excluded, including those made in response to a casual conversation designed to obtain incriminating statements. [6] Interrogation is “either express questioning or its functional equivalent…[that is,] any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." [7]

In State v. Byers, the defendants were contacted by law enforcement as they were leaving the area of a reported burglary. [8] The responding officers contacted the defendant while the officers were driving to the reported scene. The officers requested that defendant drive his vehicle and follow them back to the burglary scene. In ruling that the defendant was “under arrest" at this point, the Supreme Court stated:

Appellants’ status was not altered by the fact that they did not test the officers’ resolve by attempting to escape and being subdued… Nor does the fact that appellants were not formally ‘advised’ that they were under arrest change what their circumstance was and what they knew it to be. [9]

The key inquiry is how a reasonable person in the suspect’s position would have understood his or her situation. [10]

InState v. Lewis, the prosecutor conducted an interview with Mr. Lewis. [11] Prior to, and at the time of the interview, there was probable cause to arrest. The Court held that although probable cause does not obligate the police (or State agent) to formally arrest someone, it does mean they must comply with Miranda if they are going to discuss the subject matter of which they have probable cause.

Once the police have probable cause to arrest a suspect, a delay in making the arrest cannot serve as an excuse for conducting interviews without Miranda warnings. [12] In State v. Bryan, the police had strong circumstantial evidence linking the defendant to a car theft. The Court of Appeals affirmed suppression of evidence because the police failed to advise the defendant of Miranda rights after they had probable cause, but before contacting and speaking with him at his residence.

The purposes of CrRLJ 3.1 is to ensure that the arrested person is aware of their right to counsel and to ensure that arrested persons know of their right in time to decide to exercise their options as a result of knowing their rights. [13] The Supreme Court, in State v. Templeton, held that since there was no harm to the defendants who were advised of their rights with a form that did not comply with the court rule, the evidence subsequently procured was not suppressible. The defendants inTempleton would not have altered their decision had the correct form been used. However, the Court further held that suppression was justifiable if the evidence had been provided without going through the advisement of CrRLJ 3.1 rights. Dismissal of the criminal charges is an appropriate remedy where a violation of the court rule results in prejudice to the rights of the accused, which also materially affects her right to a fair trial. [14] At a minimum, the remedy for a violation of CrRLJ 3.1 is suppression of all evidence tainted by the violation. [15]

[1] State v. Lewis, 32 Wn. App. 13 (1982).

[2] Id.; see also State v. Sullivan, 65 Wn. 2d 47, 51 (1964).

[3] Id. [Emphasis added.]

[4] Seattlev. Sage, 11 Wn. App. 481 (1974).

[5] Sage, supra. at 484-485.

[6] State v. Pejsa, 75 Wn.App. 139, 156-147, 876 P.2d 963 (Div. II 1994).

[7] Id.; State v. Johnson, 48 Wn.App. 681, 684, 739 P.2d 1209 (1987). (Emphasis added).

[8] 88 Wn.2d 1 (1997).

[9] Id. [Emphasis added.]

[10] Berkemer, supra.

[11] Id.

[12] State v. Bryan, 40 Wn. App. 366 (1985), citing State v. Dicato, 102 Wash. 2d 277 at 297 (1984) reversed on other grounds.

[13] State v. Templeton,148 Wn. 2d 193, 217 (2002).

[14] State v. Orvick, 113 Wn.2d 823, 830 (1989).

[15] State v. Copeland, 130 Wn.2d 244 (1996); State v. Prok, 107 Wn.2d 153 (1986).

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