By Rick Collins, J.D.

If You’re Arrested

Small-time arrests for personal possession are occurring more and more frequently. Sometimes these arrests arise out of car stops for traffic violations and the steroids are found during a search of the car. Car searches are frequent at border crossings, where law enforcement authorities searching for drugs are less restricted by Fourth Amendment constraints.

What you say during a confrontation with the police can have dramatic effects upon your ability to successfully defend your case if you are arrested. Remember that certain rights protect you. Miranda v. Arizona [384 U.S. 436 (1966)] reaffirmed that confessions must be voluntary. It also established cautionary warnings to safeguard your Fifth Amendment privilege against self-incrimination and your Sixth Amendment right to counsel. They go like this:

* You have the right to remain silent.
* If you do say anything, what you say can be used against you in court.
* You have the right to the presence of a lawyer prior to and during any questioning.
* If you cannot afford a lawyer, one will be appointed for you if you so desire.
* If you choose to talk to the police officer, you have the right to stop the interview at any time. (This last one often gets forgotten.)

Do the police always have to give the warnings? No, the rule of Miranda applies only to custodial interrogation. The two elements -- custody and interrogation -- must both exist. If it’s either one without the other, the warnings aren’t required.

Custody. Custody generally means that a reasonable person, innocent of any wrongdoing, would feel that he or she was not free to leave. The place doesn’t matter: it can be at your home, job or gym, at the Postal Inspector’s office, in a police car, on the street, or wherever. If you’re not in police custody, the warnings don’t apply even if the police question you. Obviously, Miranda doesn’t apply if you’re questioned over the phone.

Interrogation. Basically, that’s police asking questions (except for pedigree stuff like name and address). If you’re in custody and they’re going to question you, they have to give you the warnings. If you’re not going to be questioned, even if you’re in custody, the police don’t have to give them. Say you’re arrested for drunk driving. They decide not to ask you any questions, so they don’t give the warnings. But you spontaneously blurt out that you “only had five beers.” Your admission of drinking can be used against you. The same usually goes if you peep up when you overhear the police talk about you to each other, such as, “This dummy is going to be doing some major time for all this juice, huh?”

What happens if the police don’t administer the warnings? The remedy is that your statements are excluded or suppressed because of the violation. Also, if the police find evidence as a result of an interrogation that violates Miranda, that derivative evidence may also be suppressed. Suppression of evidence may or may not require dismissal of the case itself. If there’s enough other evidence that is admissible, the case goes on.

Keep in mind that incriminating statements are often the most damaging evidence in a criminal case. Let’s assume that under certain circumstances you’ve decided that it’s not in your best interests to submit to police questioning. If you’re not under arrest, you can simply ask, “Am I under arrest? If not, I’d prefer not to stay and talk to you.” Then leave. If the officer replies that you’re not free to leave, then you can invoke your Fifth Amendment privilege by saying, “I want to remain silent,” or “I don’t want to talk to you.” If you invoke this privilege, the police must stop questioning you, at least for a good while. Even better, invoke your Sixth Amendment right by saying, “I want an attorney right now.” If you demand a lawyer, the police can’t question you further unless you reinitiate the conversation. [For a thorough discussion of your Fourth, Fifth, and Sixth Amendment rights, check out Legal Muscle].

Rick Collins, J.D., a veteran lawyer and former competitive bodybuilder, is the author of the groundbreaking new book LEGAL MUSCLE: Anabolics in America, available through this site. [© Rick Collins, 2003. All rights reserved. For informational purposes only, not to be construed as legal advice.]