Know Your Miranda Rights

Reading The Miranda Rights
Miranda Rights which is also commonly known as Miranda Rule or Miranda Warning is part of a procedure requiring law enforcement officials to administer to an individual that is in custody and is subjected to questioning. Many individuals falsely believe that if they were not properly informed of their Miranda Rights, they will be able to escape punishment. This is simply not true. What is true is that the prosecuting attorney will not be able to use anything that the suspect said against the suspect in court. However, there are exceptions that may apply in certain situations.

About Miranda Rights
Miranda Rights were enacted into law as a result of the Miranda v. Arizona US Supreme Court case. The police officers in this case had violated the defendant (Ernesto Arturo Miranda) Fifth and Sixth Amendment Rights when arresting him for kidnapping, armed robbery, and rape. The primary factors that would trigger a Miranda Warning are “interrogation” and “custody.”

Interrogation is considered explicit questioning or behavior that is likely to elicit some sort of incriminating response. Custody is considered a formal arrest that deprives an individual of his or her freedom. The United States Supreme Court did not indicate the exact wording to use; however, they did establish a set of guidelines that must be adhered to.

These guidelines are as follows:

1) The individual in custody must be informed of his Miranda Rights prior to any type of interrogation.
2) The individual must be informed of his right to remain silent.
3) The individual must be informed that anything said may be used again him in a court of law.
4) The individual must be informed of his right to counsel.
5) The individual must be informed that he can have an attorney present during questioning.
6) The individual must be informed that if he is indigent and unable to acquire an attorney, one will be provided.

In Supreme Court Case Berkemer V. McCarty, the courts decided that individuals being subjected to custodial interrogation can benefit from the procedural safeguards of the Miranda Warning, regardless of the severity or nature of the offense for which the individual was arrested for.

In Supreme Court Case Berghuis V. Thompkins, the courts ruled that criminal defendants who have been administered their Miranda rights (who have indicated an understanding of those rights and have not chosen to waive those rights), must state before or during the interrogation that they do not wish to speak to the police for fear of self-incrimination. If they choose to speak about the incident to the police prior to invoking their Miranda Rights, any information provided may be used against the defendant in court.


Typical Usage
Every jurisdiction within the United States has its own procedures regarding the notification of Miranda Rights. In Texas, the Miranda Warning is often cited as:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

The courts later ruled that Miranda Rights must be “meaningful.” This usually requires that the arrestee be asked if he or she understands these rights. Some law enforcement agencies require their law enforcement officers to ask the arrestee if he or she understand the Miranda rights after every sentence. If the suspect chooses not to answer any questions, silence cannot be used as a waiver.

Some courts have ruled evidence to be inadmissible when an arrestee’s little knowledge of the English language prohibited the arrestee from fully understanding the Miranda Warnings. The courts felt the arresting officers should have had someone administer Miranda Rights to the arrestee in a language that he/she fully understands.


When is a Miranda Warning Required?
Miranda Warnings are required during a potential interrogation from a law enforcement official that could ultimately lead to criminal punishment. Miranda Warnings can be administered in an alley, jail, beach, home, park, school or police station. Wherever the officer decides to interrogate you, that is where the Miranda Warnings must be administered. If an individual is not in police custody, then no Miranda Warning may be necessary.


Pre-Arrest Questioning
It is important to note that questions asked prior to an arrest could result in the information being used in a court of law. If an individual has not been arrested, the individual may voluntarily answer questions. If the individual declines to answer any questions, that alone cannot be the basis for an arrest. Answering questions prior to an arrest is a personal choice (that you may want to seek out legal representation for), but there is no law indicating that you must answer questions by law enforcement.

A “right to silence” is protected under the Fifth Amendment of the U.S. Constitution. This means that the officer must have probable cause prior to an arrest or reasonable suspicion to stop and frisk. An individual that is stopped by a police officer has the right to refuse any questions. Individuals who are potential suspects may want to politely decline an interview and seek legal representation prior to answering any questions.

However, exceptions to the “right to silence” rule exist. Here are the two most common:

1) Loitering – The right to silence may not be acceptable if the officer suspects an individual of loitering. Many states have implemented laws allowing a police officer to question an individual that is loitering. If the individual fails to comply, the individual can be arrested.
2) Traffic Stops – Answers to police questions usually are required from motorists suspected of violating traffic laws. The officer has the right to request identification. If a motorist fails to respond to the officer’s request for identification, the motorists could be arrested.


Post-Arrest Questioning
If you are arrested for a crime and brought to the police station for questioning, the almost universal rule is to remain quiet until you speak with your attorney. Suspects often reveal information that is later used against them at trial. Once an individual has invoked his/her Miranda Rights by choosing to remain silent, have an attorney present, or both, police will usually terminate the interrogation process. There are some circumstances where the prosecuting attorney may use statements after Miranda Rights have been invoked. This is what is known as a waiver of Miranda Rights.


General Rules of Questioning
Most law-enforcement agencies will terminate an interrogation once an arrestee has invoked the Miranda Rights. If an arrestee only invokes the right to remain silent, the law enforcement officer may still try to probe at a later date. If the arrestee invokes the right to counsel, the questions must stop until the arrestee’s attorney is available.

Honoring the “right to silence” after invoking Miranda Rights is not always clear. Courts may consider the passing of time and new situations. For example, if an individual has been arrested for a crime and invokes Miranda Rights, police will probably cease questioning. However, a different officer may question the arrestee about an unrelated crime. The arrestee may choose whether or not to invoke Miranda Rights on the unrelated crime.


Initiating Conversation
Once an arrestee has invoked Miranda Rights and later decides to initiate a conversation, the conversation may be admissible in court. Police will normally re-advise the arrestee of his/her Miranda Rights prior to re-questioning for any statements to be admissible in court.


Limited Invocation
If an arrestee decides to invoke Miranda Rights for a specified purpose only, the police can continue interrogation around that purpose. For example, an arrestee may want an attorney present for the purpose of only signing a document but not for questioning.


Exceptions TO The Miranda Rights
Since the inception of the Miranda Rule, several exceptions have emerged. The exceptions offer an assumption that the statement is inadmissible due to possible police misconduct or physical coercion. If a defendant gives a statement that contradicts a witness testimony, the prosecutor can use the violation of Miranda as a means of attacking the defendant’s credibility.

Some jurisdictions will even allow prosecutors to use statements obtained in violation of Miranda at sentencing hearings. Although the defendants confession is not admissible at trial, the statement can be used at sentencing to seek a harsher sentence for the defendant.


Using A Violation Of Miranda To Obtain Evidence
Prosecutors will not normally use a violation of Miranda to obtain evidence. However, certain exceptions apply.

1) Public Safety – If a situation is dangerous and jeopardizes the safety of the public, police officers can question suspects without giving a Miranda Warning.
2) Tangible Evidence – Any tangible evidence acquired by the police as a result of a violation of Miranda can usually be used by police and may be admissible at the defendant’s trial.
3) Witness – Any statements received in a violation of Miranda that leads to another witness, the witness can be used against the defendant at trial.
4) Inevitable Discovery – Any evidence that police eventually would have found on their own, can be used at the defendant’s trial.


Frequently Asked Questions

How much time do I have to invoke my Miranda Rights?
There is no time limit for invoking Miranda Rights. Once Miranda Warnings have been administered, the arrestee can invoke the Miranda Rights immediately or once a few questions have been answered. Once the Miranda Rights have been invoked, law enforcement is required to stop all questioning. However, any statements made prior to the invoking of the Miranda rights may be used against the arrestee in court.


If I am arrested and the officer fails to read me my Miranda Rights, will my charges be dropped?
If you are arrested and the police officer fails to inform you of your Miranda Rights, your attorney would most certainly try to use the violation in an attempt to have your charges dismissed. However, if the police officer has acquired an overwhelming amount of evidence against you and the officer does not need to use the information that you provided in court, there is a great possibility that your charges may not be dropped.


I was stopped by a police officer and asked all sorts of questions without being read my Miranda Rights. Is this legal?
A police officer can stop you at any time and ask you questions. You can decide whether or not you choose to answer those questions. The Fifth Amendment grants you the right not to cooperate. If you are the suspect of a crime, it is highly recommended that you speak with your attorney prior to answering any questions. If a police officer asks to see your driver’s license or insurance, you cannot refuse to provide the officer with those items.

An officer will only read you Miranda Warnings if the officer has the intentions on using your answers at trial. Therefore, there may be many instances when an officer may stop you and question you. If you do not wish to answer any questions, you can politely tell the officer that you do not wish to answer any questions at this time.


I know that I am entitled to have an attorney before being questioned by a police officer, but I am unable to afford an attorney. What can I do?
If you are unable to afford an attorney, the courts will appoint you an attorney, which is usually a public defender.


I received a call from a police officer asking me to come in to the police station to answer questions. I don’t want to go. What should I do?
If you do not wish to go to the police station and answer questions, you may politely deny the request. However, if you are the suspect of a crime, there is a possibility that the officer will later have probable cause to arrest you or obtain a search warrant if the officer feels you are in possession of valuable evidence that could possibly lead to you being convicted of the crime.

The SpaceX Dilemma: Where the Shores Meet the Cosmos

Lay off the moon rocks people. SpaceX recently announced plans to construct a launch pad near Boca Chica Beach. This decision has brought national attention to Brownsville, TX. However, no one seems to be worried about what it means to us avid beach-goers. In light of all the excitement, it appears that five pressing legal questions remain omitted from public discussion—lets launch in.

1. Is Boca Chica Beach a public beach as defined by Texas Law?

Yes. The Open Beaches Act (OBA) defines a public beach by both its location and our right to use it. A public beach exists along the Gulf of Mexico and extends on the shore from the line of mean low tide to the line of vegetation. Additionally, a public beach is one in which the public acquired the right of use by virtue of continuous right in the public since time immemorial. Boca Chica Beach is in Texas and along the Gulf of Mexico. Boca Chica Beach also has a rich history of public use stretching back to a time before Texas was apart of the US. Therefore, Boca Chica Beach is a public beach as defined by Texas Law.

2. What right do we have in accessing a public beach?

The OBA declares the State’s public policy to be a “free and unrestricted right of ingress and egress” to Texas public beaches. A brief search of the case law shows that the State of Texas will even go as far as to force destruction of houses build within the line of mean low tide to the line of vegetation.

3. Will the proposed SpaceX launch pad affect our right to access Boca Chica Beach?

Yes. When Texas House Bill 2623 passed into law in 2013, The General Land Office Commissioner obtained the authority to close public beaches for “Space Flight Activities” WARNING: use of legal term by government.

4. What “Space Flight Activities” can restrict public access to Boca Chica Beach?

The law gives “Space Flight Activities” an expansive legal definition. Under current Texas law, space flight activities consist of activities and training in any phase of preparing for and undertaking space flight. All of the following can lead to closure of Boca Chica Beach:

  • the research, development, testing, or manufacture of a launch vehicle, reentry vehicle, or spacecraft 
  • the preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew, or space flight participant for launch, space flight, and reentry; 
  • the conduct of the launch; 
  • conduct occurring between the launch and reentry; 
  • the preparation of a launch vehicle, reentry vehicle, payload, spacecraft, crew, or space flight participant for reentry; 
  • the conduct of reentry and descent; 
  • the conduct of the landing; and 
  • the conduct of post landing recovery of a launch vehicle, reentry vehicle, payload, spacecraft, crew or space flight participant.

5. When is it not allowed to close down Boca Chica Beach?

There is no short answer here. At first glance, the current law prohibits beach closure on the following list of days:

  • the Saturday or Sunday preceding Memorial Day;
  • Memorial Day;
  • July 4;
  • Labor Day; or
  • a Saturday or Sunday that is after Memorial Day but before Labor Day.

However, the law allows for beach closure even on the above list of days if the Cameron County Commissioners Court obtains prior approval from the General Land Office. To make matters worse, the current law allows for the Cameron County Commissioners Court to enter into a Memorandum of Agreement with the General Land Office that governs Boca Chica Beach closure. In the current Memorandum of Agreement, the Cameron County Commissioners Court has left out Saturday and Sunday between Memorial Day and Labor Day. Therefore, under current Texas law, it is fair to suggest that Boca Chica Beach can be closed down at any time.

According to Congressman Rene Olivera, “We have balanced the people’s access to their beach at times of peak usage and we have shown a world class company that Cameron County and Brownsville are doing everything in our power to bring them to South Texas.” Is this a balance of interest or an unconstitutional encroachment on the public’s right to access a public beach in Texas? Is it fair to sacrifice the rights of many on earth for the few who make it to space on a commercial flight? Time will tell. What is certain is that the future has arrived.

Undocumented Citizens

One thing that I think is extremely important down here in Brownsville and any border city really is a whole lot of criminal defendants who aren’t here legally. They’re undocumented. And it becomes a race to get a bond sometimes before the ICE immigration people get to the jail. But if they get there, you get a federal hold on you.

So any state bond is trumped by the federal hold. So you have a lot undocumented immigrants here doing hard work– working, have families here that are stuck in jail. What’s important from the immigration consequences is if you plead guilty to a crime involving moral turpitude, for instance, an assault case with finding a family violence, you’re deportable.

What that means is that you’re placed back in your country. And if you cross again within a certain time period, you’re facing federal charges. So it’s important that people get somebody who cares to represent them if you’re an undocumented person in this country.

Illegal Search and Seizure

If you’re arrested after an illegal search– now, that’s hard to declare. It just– as an illegal search, you usually need to be arrested. And a lawyer needs to evaluate whether there was enough evidence to support probable cause. But it happens. If you’re arrested, and let’s say something is seized as a result of your arrest,– let’s say, a bag of marijuana, contraband. –that piece of evidence is the most important thing in the prosecutor’s case.

If the search was unconstitutional, there’s a doctrine called fruit from a poisonous tree. What that means is that evidence will be suppressed. And what that means for you going to trial is that evidence cannot be introduced in a court of law. If they don’t have the contraband, drugs, or other whatever is seized, then, you’d better believe the case is going to be dismissed.

My Process

My process is quite simple. I’ll ask you to come down to my office immediately. There are real consequences for not showing up to these hearings. If it’s a criminal case, an arrest warrant, a bench warrant will be sent out. And it could be a month or two down the road, you get stopped for a traffic ticket, and all of a sudden you’re spending time in jail and you need a bond.

So it’s of high importance to show up to these hearings. My process again, I’ll bring you to my office, we’ll talk about your case. I’ll look up the case with the county clerks or the district clerks, and verify if the hearing is an arraignment or if it’s a bond forfeiture. We’ll figure out exactly where you are along the process. And once we get everything verified, we’ll begin your defense.

We’ll begin what it is we need to do, depending on the type of case you’re ordered to go to court on.