Citizen – Police Contact and Miranda

There are three levels of citizen-police contact:

1. Voluntary contact. A citizen may talk to the police or walk away at any time.
2. Investigatory detention. The citizen has been temporarily detained and is not free to leave while police investigate. The time limit must be evaluated to determine if the detention is reasonable.
3. Arrest. The citizen is under arrest and not free to leave.

If the police question you, you may politely decline to make a statement. My business card, reproduced below, offers a suggestion.

Officer, I mean no disrespect, but my lawyer has instructed me not to talk about my case or about anything else. On his advice, I hereby invoke my right to remain silent. I refuse to consent to any search of my person, my vehicle or my personal effects. I shall not waive any of my legal rights. I request that my lawyer, identified on the front of this card, be allowed to be present if any identification confrontations, tests or examination are conducted in my case. If I am under arrest, I hereby invoke my Miranda rights and demand an opportunity to consult with my attorney prior to any questioning. I do not consent to any impoundment of my property, and I request a reasonable opportunity to secure same. If I am not under arrest, I want to leave. If I am free to leave, please tell me immediately so that I may go about my business.

The American Civil Liberties Union has its own bust card to assist persons who are contacted by the police.

The following is an example of a written Miranda warning:

Explanation of Rights:

1. You have the right to remain silent.
2. If you give up the right to remain silent, anything you say can be used against you in Court.
3. You have the right to speak with an attorney prior to any questioning, and you may have your attorney with you during questioning.
4. If you desire an attorney and can not afford one, an attorney will be appointed for you free of charge.
5. If you decide to answer questions now without an attorney present, you retain the right to stop the questioning at any time and request that an attorney be made available to you.

Waiver of rights:

I have read the above statement of rights and had these rights read to me by an officer of the law who has identified himself to me as a member of the police department. I understand my rights and am willing to make a statement at this time without an attorney present. I have neither been threatened, coerced, nor promised any rewards regarding this statement.

Date: _________________ Defendant’s signature: ________________________

The Miranda warning, and a waiver, is required before a (1) custodial and (2) interrogation. The term “custodial” refers to a person under arrest but not investigatory detention, above. If Miranda warning are not properly given, any statement could be suppressed or excluded from later court proceedings.

The best practice is for the police to use a written Miranda waiver, but there is no requirement that the waiver be in writing.