Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: The MA Miranda – Statement Admissibility Game (Part Two)

Yesterday, we discussed whether an investigating officer’s failure to read a suspect in custody his or her Miranda Rights (hereinafter, the “Rights”), means that the case against said suspect must be dismissed.

The answer, in most cases, is no.

The remedy is to suppress the statement so that the Commonwealth may not use it against the suspect at trial. However, this is not as simple as one might imagine. The question becomes what is a “custodial interrogation”. Let’s look at three scenarios.

1) Duncan Drugdealer is at home when the police arrive with a search warrant. They tell him to sit down while they search the place. All of a sudden, as the officers are going upstairs, he yells out, “Hey, that coke in the bedroom ain’t mine!”

2) Virginia Victim stands in Boston’s Government Center, screaming that she her purse has just been stolen. The police see her and then see Alfred Assault running away from her, carrying a woman’s purse. The officers know Alfred and he very rarely carries a purse. So they chase him. As they catch up to him, he turns around and says, “It ain’t the old lady’s purse, man!”

3) Ollie Offender gets a telephone call from a local detective. The detective asks him to come down to the station so that they can discuss an allegation that has been made. Ollie asks, “Is this because of that bitch claiming I raped her?” Ollie then agrees to go down to the station.

Down at the station, Ollie sits in a room with four officers. They begin asking him questions about the rape allegation. They never read him the Rights. He finally breaks down and, in lurid detail, admits the rape. The officers then read him his Rights.

In none of these scenarios have the officers read the Rights to the suspects in a timely manner. What are the possibilities of suppressing the statements?

Being at home when the police come in and seize control of the place by way of a warrant presents a potential argument for suppressing any resulting answers to questions posed by the officers. That is, of course, assuming that the warrant is lawful and the police therefore have the right to be there. A key question normally would be whether Duncan were free to go or if he were in custody during the search.

In Duncan’s case, however, the statement was not the result of any questioning from the police, so it really does not matter It was a volunteered statement. Therefore, it was not the result of any coercion and so is not likely to be suppressed.

Alfred’s situation is a bit different. He does appear to be in custody. The question is whether or not the police lawfully pursued and had the requisite cause to seize him. They probably did. However, like Duncan, Alfred has loose lips. He was not asked anything. Therefore, the only issue is whether or not he was lawfully in a custodial situation. If the police did not have the right to grab him, then the statement was the result of an unlawful stop. We lawyers call that a fruit of the poisonous tree, said tree being the bad stop. Statement will be suppressed if that is the case.

Ollie has some good news and some bad news coming. His first statement, on the phone, is clearly not going to be suppressed. First of all, he is not in custody. Second of all, there was no interrogation yet. Ollie just blurted his statement.. However, when Ollie came down to the station and he was placed in a room surrounded by police officers who began questioning him about the rape, he should have been read his Rights. The second, more important, statement should be suppressed.

The fact that the officers read Ollie his Rights after the statement is of no help to them at all.

These examples are somewhat simplistic, I know, but they tend to illustrate the rules a bit. However, this does not mean that you have now become an expert on the legal issues of criminal investigations and so no longer need to hire experienced counsel.

Sorry about that.

The rules of criminal procedure are complex and there are a multitude of cases which stand for different propositions and which help (or hurt) the cause of suppression, depending on the circumstances and, often, the advocate.

The advice is still the same, folks. Get an experienced criminal defense attorney. This should be done before you make statements. If your phone rings, as it did in Ollie’s case above, the smart move is to contact an attorney to get involved right there and then…if not sooner.

Should you wish to discuss a criminal case with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

Kindly continue to have a great, safe and law-abiding weekend!

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