Since that time, police have been required to read suspects their Miranda rights while in custody before they are interrogated.

The Miranda principle has faced many legal challenges, including when police are required to read the rights.

The Arizona Supreme Court recently considered whether or not the police are required to read a person their rights before being questioned curbside.

In this case, the suspect was not read his Miranda rights, before police asked him about his involvement in a crime.

Instead, the police questioned the suspect curbside, after finding him sitting in front of a building.

In this case, the Arizona Supreme Court held that the suspect was not in custody for purposes of the Miranda warning.

Therefore the self-incriminating comments made by the suspect were allowed to be admitted and used against the defendant for purposes of prosecution.

In this article we will cover the following:

• 3 Things You Need to Know about Miranda Rights
• Arizona Supreme Court Case overview
• How a Criminal Defense Attorney can if you’ve been Arrested

This discussion is intended to provide insight into information that is not part of the Miranda reading, but is crucial in helping one to avoid self-incrimination.

3 Things You Need to Know about Miranda Rights

Here are three important things you should know about your Miranda Rights:

1. The police are required to read or say the Miranda rights to a suspect being taken into custody, but before being questioned about involvement in a crime.
2. You have Miranda rights whether they are read or not.
3. Any statements given police anytime before the Miranda warning is read can be used for purposes of prosecution. This includes statements made in seemingly friendly or casual conversation.

1. Police are required to read or say the Miranda rights to you after an arrest and prior to interrogation.

The police must read Miranda warnings to suspects following an arrest or while they are in custody, to inform suspects of important rights they possess. However, the timing of which the police are required to provide them to you does not change the fact that you have them outside of custody and before arrest

2. You have Miranda Rights whether they are read to you or not.

Under the Fifth Amendment of the United States Constitution, persons have the right remain silent of protection against self-incrimination.

Under the Sixth Amendment of the U.S. Constitution, suspects have the right to a criminal defense attorney. This includes having an attorney present during interrogation.

3. Statements you give to police before being Mirandized can be used against you.

Miranda warnings are intended to help you avoid running afoul of your constitutional rights if you are in custody, and the police plan to question you regarding your involvement in a crime.

If you do not invoke your right to an attorney and your right to remain silent, anything you say, even in casual conversation to the police can be used against you in court.

One police tactic used to obtain incriminating information from a suspect is through use of casual conversation.

Police often strike up a casual conversation or appear friendly during questioning.

This informal approach often catches a suspect off guard, leading them to unknowingly provide self-incriminating statements.

Your statements can later be admitted and used against you for criminal prosecution.

The following discussion reveals the crucial impact each of these three factors had on the defendant’s case in a recent Arizona Supreme Court’s opinion in this case.

Case Overview

The case arose when a driver saw the defendant sitting on a curb outside an empty building.

The building belonged to a church that was also located on the property.

An observant driver noticed that a board was missing, that had previously been placed over a broken window.

Due to prior break-ins in that building, the driver decided to report it to police.

Officer Huntley was dispatched and parked in the lot next to the building.

After talking to the driver who noticed the exposed broken window, the officer approached the defendant, who was still sitting in front of the building.

The officer noted that the suspect’s possessions were in a shopping cart nearby.

The defendant gave the officer identification upon request and agreed to a pat-down search for weapons.

The officer confirmed that the suspect was not armed, and there were no outstanding warrants for him.

The officer asked the defendant what he was up to, and if he knew anything about the board being removed from the broken window.

The defendant denied any knowledge of the board being removed from the window.

Then the officer asked the defendant to sit in the patrol car because he didn’t know whether anyone else was inside the building.

A second officer arrived on the scene. The defendant then sat on the curb again.

Then a third officer arrived on the scene and helped check the building for unsecured doors.

The pastor of the church arrived and told the first officer he’d be willing to pursue charges if there was a suspect.

The first officer again asked the defendant if he knew anything about the board being removed from the broken window.

The defendant admitted to the officer that he removed the board the day before and had entered to search for money.

The officer then arrested the suspect and escorted him into the police car.

After a search of the building, the officers found no evidence of forced entry, accept for the board being removed from the broken window.

The pastor reported that he found nothing missing.

The officer returned to the police car and advised the defendant of his Miranda rights.

The defendant was read his rights after he had already made the self-incriminating statements that led to his arrest.

For the third time, the officer asked the suspect about his entry into the building. Again the defendant admitted that he removed the board to go inside of the building.

The defendant was charged with burglary.

The defense moved to suppress the defendant’s incriminating statements.

The trial court denied the motion to suppress holding that the defendant was not considered to be in custody when the incriminating statements were made.

The suspect was found guilty of third-degree burglary. His sentence was suspended, and he was placed on probation, with the requirement that he serve 30 days in jail as a condition of probation.

The Arizona Court of Appeals affirmed the trial court’s denial of the motion to suppress the incriminating statements made by the defendant.

The defendant then appealed to the Arizona Supreme Court. The court reviewed the question of whether or not the defendant was in custody for purposes of Miranda at the time police questioned him.

The defense argued that police must provide Miranda warnings before interrogating someone who is in custody.

The Arizona Supreme Court explained in precedent cases they heard, someone is considered to be in custody if there’s been a formal arrest or a restraint on the suspect’s freedom to move.

The court noted that the limitation of not being free to move is generally associated with being arrested or taken into police custody.

However, the Court explained that the United State States Supreme Court more recently considered this issue.

Citing Howes v. Fields; Berkemer v. McCarty; and Maryland v. Shatzer, the U.S. Supreme Court held that not just one factor should be considered.

The Arizona Supreme Court held that when evaluating whether or not a person is in custody subject to Miranda, that multiple factors should be considered, citing U .S. Supreme Court opinions in Howes v. Fields 2012; and Stansbury v. California 2012.

Since then, the Arizona Supreme Court considered these factors when deciding whether or not a person was in custody for purposes of Miranda:

• If the suspect experienced substantial freedom of movement, in a way that would make any reasonable person to feel that they were not free to leave an interrogation; and
• The environment and location of where the questioning takes place, and the presence of objective indicators that an arrest has taken place;
• Length of the interrogation.

With regard to the first factor, the record indicates that after the defendant submitted to a pat down, he was asked to sit in back of the police car.

Later, the officer asked him to get out of the patrol car and again sit on the curb.

The court recognized that the defendant was under constant police supervision from the first time the officer spoke to him. They held that a reasonable person wouldn’t have felt free to leave.

The court then moved to the next factor, regarding the location of the questioning.

It noted that consideration must be given to whether or not the location of questing was familiar rather than one unfamiliar to the suspect.

An example of an unfamiliar location would be in custody at the police station (Miranda v. Arizona).

In Miranda the court held that the unfamiliarity and the change of environment to the police station resulted in a psychological advantage for the police. This environment, in which Miranda was interrogated, played a crucial role in the U. S. Supreme Court’s decision.

To be considered “in custody” for Miranda purposes, the environment of the questioning would need to present circumstances where “inherently coercive pressures” existed.

These circumstances would be such that they would push a defendant into complying with the interrogator’s will.

The court held that being questioned while in public view, serves to diffuse the feelings that the suspect is being threatened with physical force if they do not agree to answer questions.

In this case study, the defendant answered the questions on the street in public, in the familiar surroundings. The officer questioned him casually where he had been sitting on the curb when the officer arrived on the scene.

The third factor the court considered in this case was length of time. The Court noted that the total time that elapsed was an hour, from the officer’s arrival on scene until the arrest.

The Court cited precedent cases where questioning occurred, held that 1 hour to 1 ½ hours did not constitute being “in custody’ ’ for Miranda purposes.

Additionally, the Court reasoned that it matters whether there was an unreasonable delay by the police during the investigation in order to get an advantage over the suspect and increase the likelihood he would incriminate himself.

In this case, the defendant was not interrogated in isolation from others and was visible to passersby.

The investigation was a little bit longer, but this was appropriate in the context of an investigation of a possible burglary.

The officers acted efficiently and without exaggerated displays of authority in conducting the investigation.

The defendant was only asked a few questions, and his property was not seized.

The Court concluded that the curbside questioning was not conducted while the defendant was in custody, and the questioning was not coercive enough to require Miranda warnings.

The Arizona Supreme Court affirmed the lower court’s order denying the motion to suppress and affirmed the conviction.

How a Criminal Defense Attorney Can Help if You’ve Been Arrested for Burglary in Mesa AZ

In Arizona a person may be guilty of burglary if they intended to carry out burglary even if they did not take anything as in this case under A.R.S. 13-1506, and A.R.S. 13-1507.

Penalties for burglary convictions in Arizona are severe. All burglary charges in Arizona are categorized as felonies, which expose a person to prison terms if convicted.

Mere possession of burglary tools call for prison sentencing from for up to 2 years in prison.

Third degree burglary charges sentencing include a maximum of 3.75 years in prison.

Burglary charges in the second degree call for prison terms of 8.75 years.

First degree burglary charges expose a person to a maximum of 21 years prison.

James Novak, of the Law Office of James Novak, exclusively defends criminal charges.

He is former prosecutor and experienced criminal defense attorney. James Novak provides a strong defense for those who have been accused of criminal charges.

If retained, James Novak will evaluate your case determine the best strategy for your defense.

James Novak, works hard for his clients, and will pursue the most favorable outcome possible in in your case.

Criminal Defense Attorney, James Novak, offers a free initial consultation to those who face active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you are charged with burglary or another felony offense, you can contact or call the Law Office of James Novak at (480) 413-1499, and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

• A.R.S. 13-1508 (Burglary in the First Degree)
• A.R.S. 13-1507 (Burglary in the Second Degree)
• A.R.S. 13-1506 (Burglary in the Third Degree)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Miranda v. Arizona
• Fifth Amendment of the U.S. Constitution
• Sixth Amendment of the U.S. Constitution
• Arizona Criminal Code Sentencing Chart 2016-2017

Other Articles of Interest from our Award Winning Blog:

• Mistake of Law: How to Challenge an Unlawful Stop
• Marijuana Odor Probable Cause for Search Warrant
• One of the Most Important Reasons to Resolve Your Warrant
• Entrapment: The most important requirement for Your Defense
• Your Right to Request Change of Judge in Arizona Criminal Court

Introduction

This collaborative two part series was inspired by my friend and colleague, Eyitayo Ogunyemi, LL.B, B.L, Attorney and Human Rights Advocate in Lagos, Nigeria.

This is part I of II which applies to Phoenix, AZ laws, in the USA.

Eyitayo Ogunyemi has written Part II, which applies to Lagos, Nigerian laws.

To symbolize human rights, we have chosen the number “15”, to represent 15 Universal Declaration of Human Rights, that often involve police brutality if violated. They include:

Freedom from slavery; Freedom of opinion or expression; Right to peacefully assemble; Freedom from non-discrimination; Freedom from brutality and torture; Freedom inhumane or degrading treatment; Freedom from arbitrary arrest, detention or exile; Freedom of thought, conscience and religion; Right to equality; Right to life, liberty and security; Right to remedies for violations of human rights under the law; Right to trial; Right to presumption of innocence until proven guilty; Right to adequate shelter, food, clothing, medical care and other fundamental needs; Right to protection against interference or attacks against privacy, family, home, honor, reputation, or correspondence.

Police Use of Deadly Force Denounced by Amnesty International & UN Human Right Council

Earlier this year, Amnesty International reported its findings that 50 States and the District of Columbia in the USA failed to comply with the international standards on the use of lethal force. They highlighted a “widespread pattern of racially discriminatory treatment by law enforcement officers and an alarming use of lethal force nationwide.”

We also heard about the criticism by the UN Human Rights Counsel early this year about the use of excessive force and racisms.

As our great Country works hard to resolve these crucial human rights issues, the one thing we as individuals can do to reduce fears and tensions is to understand the laws, and rights afforded within them.

“15” Ways to reduce the risk of becoming a victim of brutality, or misconduct by police

Being aware of your rights and the laws where you live or travel, is your first line of defense in avoiding police brutality.

1. Stay calm, polite and respectful;
2. Stop talking;
3. Listen carefully to instructions by police;
4. Obey the commands;
5. Always keep your hands where the officer can see them;
6. Never display a firearm or other deadly weapon unless the officer asks you to;
7. In the event, ask the officer to direct you as to how they would like it to be presented or safely displayed so that they do not feel threatened by it:
8. Move slowly and carefully at all times;
9. Never move to a location behind the police officer unless they request you to do so;
10. Never reach for, or attempt to take an officer’s weapon;
11. Never argue or provoke the officer;
12. Never resist arrest;
13. Never walk away from police until they tell you that you are free to leave;
14. Never flee from the officer if they attempt to arrest you;
15. If you are being questioned or interrogated about a crime, invoke your 5^th amendment right. To do this, politely tell the officer that you wish to remain silent and request that your attorney be present during any questioning regarding involvement in crime.

Any police stop can be tense for all involved. This includes the officer. Police will be the first to tell you that there is no such thing as a “routine stop.”

Police are trained to approach each encounter as though it could turn deadly, at any moment.

It is important to understand this mindset of the officer.

They will always be on guard, armed, and ready to protect themselves in the event the encounter turns violent.

If an officer feels threatened, or that his or her life is in danger, they are trained to react with force equal and necessary. That may include lethal force in the event that is the level of threat against them.

The key to avoiding a violent or dangerous encounter with police is to avoid making the officer feel threatened in any way.

Each person should be aware that their own actions may either keep them from harm, or put them in harm’s way.

What Should You Do if you are Being Assaulted by Police

Though these tips will reduce your risk of harm, unfortunately, violent encounters may still erupt.

People often want to know if it is lawful to use deadly force against a police officers who is beating and brutalizing them, or using excessive force. The short answer to that is yes.

Under Arizona Criminal Code A.R.S. 13-404, a person is allowed to protect themselves by using necessary physical force, against an officer. However, this is only lawful, if the police officer is using physical force that exceeds that allowed by law.

Having said that, it is important to understand the consequences of which a person is exposed in making that choice:

• It could result in serious harm or death as the officer retaliates;
• The suspect who used deadly force against an officer to protect themselves will likely be arrested and a criminal investigation will ensue;
• The suspect may be charged with aggravated assault or homicide if the force used by the police officer did not exceed the lawful amount of force needed under the law;
• In trial, the suspect will need to make a showing that the physical force used by the police officer did in fact exceed the amount of force required;
• The prosecution will attempt to persuade a jury that the police officer’s initial actions did not exceed the necessary force allowed under law. For this reason it is important to obtain surveillance footage, and eyewitness statements, or other evidence that can provide such showing or accurate account of the events.

The Most Common Criminal Defense used for Use of Deadly Force Charges in Self-Defense

The most commonly used defense in this situation is a what is known as “Justification” defense which affords the right to self defense under AR.S. 13-404.

Though the Justification defense generally does not apply to police officers, the exception to that is if they reasonably believed force was needed to immediately and necessarily protect themselves against the officer’s use of unlawful excessive force.

Lethal force, however, is not justified if the suspect uses it merely to resist an arrest, even if the person feels they are innocent.

Even if a suspect is completely innocent, it is important for them to stay calm, obey the orders, cooperate, and then consult a criminal defense attorney as soon as reasonably as possible following an arrest.

Formal Rights that offer Protection from Police Brutality & Use Excessive Force by Police

Most of the formal rights afforded to individuals are those under the

1. United States Constitution and Amendments;
2. State of Arizona Constitution and Amendments.

The United States Constitution

Some of the rights under the US Constitution that afford protections against brutality include:

• 4^th Amendment: Freedom from unlawful search and seizures;
• 5^th Amendment: Freedom from self-incrimination; deprivation of life, liberty, or property absent due process;
• 8^th Amendment: Freedom against cruel and unusual punishment;
• 14^th Amendment: Freedom from denial of privileges and/or immunities of citizens of the US; deprivation of life, liberty, property in absence of due process; denial of equal protection under law.

State of Arizona Constitution

Some Rights under the State of Arizona Constitution Article II which address the protections against brutality, harm, and police, and police misconduct include:

Article II. Declaration of Rights

• Section 4. Freedom from deprivation of life, liberty, or property without due process;

• Section 5. Right of petition and for peaceful assembly, protest rights;

• Section 8. Right to privacy; freedom from disturbance and home invasion without lawful authority;

• Section 15. Freedom from excessive bail; and infliction of cruel & unusual punishment;

• Section 24. Rights of thee accused in criminal prosecutions

Consequences of Law Enforcement Violation of Rights in Criminal Law

One common violation is the US Constitution’s 4^th Amendment for unlawful search and seizure.

If the police entered your home without a valid warrant or your consent to search it, then seized evidence against you, and planned to use that evidence to prosecute you, then that would be a constitutional violation.

If the unlawful search and seizure was material, your criminal defense attorney may file a motion to suppress that evidence.

This means the evidence obtained as a result of a violation of the suspects rights, will not be admissible to use against them in trial.

Suppression of material evidence generally leads to an acquittal or dismissal of the criminal charges or other favorable outcome in case for the defendant.

Remedies for Victims of Brutality, Criminal Misconduct, or Cruel and Unusual Punishment

Constitutional Violations that involve brutality, gross misconduct, or cruel and unusual punishment, may have both criminal and civil remedies available.

In the case of an officer involved shooting, a detained inmate grossly abused or neglected, or fatally beaten by guards, criminal charges may be brought against those involved.

Civil remedies exist such as law suits being filed by qualified survivors for wrongful death of their loved one. The civil suits may be filed against the agency, jail, prison, city, county, or other locale with jurisdiction of those who committed the crime.

Civil Law suits may be filed by the victims, or their families or the American Civil Liberties Union (ACLU) on behalf of the victims.

Law Suits for Constitutional Violations of this nature are filed under Federal Rule 42 USCA § 1983; often referred to as a “Section 1983” lawsuits.

These are civil right laws that protect inmates in prison or jail, or civil detainees, from being deprived of their Constitutional rights.

Those responsible from the violations may include law enforcement officers, jail or prison guards, or other employees working there.

Obstacles to Justice: Qualified Immunity Laws

Police, guards, and other civil servants have general protections under what are known as Qualified Immunity Laws. These are in place at the federal, state, and local level. In Arizona, they can be found under A.R.S. 12 – 820.02 for reference.

These laws provide immunity from civil liability against litigation against officers acting within the scope of their job duties.

As long as their actions were not in violation with police, prison, jail procedures; and as long as their actions did not constitute a criminal offense the civil servant will be afforded protection under the Qualified Immunity Laws of their jurisdiction.

In these situations often people feel the criminal justice system has turned away, without offering any remedy for their injury or injustice.

There is a perception among many that prosecutors and police are on the “same side” considering they work closely together to prosecution criminal offenses. As a result, they feel that prosecutors are in no hurry to bring charges against police in these situations.

Amidst the recent fatal police shootings and tragedies, the violent protests that erupted had much to do with the fact that it has been increasingly difficult to prosecute criminal conduct by police.

Charges can be brought against a police officer in two ways in Arizona and most states in the USA. They can be brought by the prosecutor filing a formal complaint, or by Grand Jury indictment.

A Grand Jury indictment is not required to bring criminal charges.

It is the prosecution who decides if they want to take the case to the Grand Jury or file the formal charges themselves.

The prosecution decides what evidence they want the jury to see and hear; and what witnesses to call.

So generally speaking if the prosecution is not passionate about the grand jury bringing charges, they know what the jury needs to see and hear, to assure the desired outcome.

Even if the Grand Jury decides not to bring charges, the prosecution can still bring them. They are not bound to the grand jury’s decision not to bring them.

In numerous cases recently, where the charges were not brought where evidence seemingly existed to the contrary that criminal liability existed, violent protests erupted.

Tensions continue to mount as more tragic incidents occur, in Arizona and across our great nation.

What a Criminal Defense Attorney can do to help you if you face Criminal Charges

If you were arrested or face criminal charges, you should always consult an experienced DUI or Criminal defense attorney before going to court, or pleading guilty.

If retained your criminal defense attorney will thoroughly review your case, gather all the evidence available including evidence in your favor. They will present your side of the story through the proper legal channels.

They will then determine what the best defense strategy will be given the circumstances of your case. If your constitutional rights were violated, they may file a motion to have the evidence obtained as a result that violation, be suppressed.

Other defenses may exist in your case that you are not aware of. The challenge may lead to a favorable outcome such as a reduction of charges, mitigation of sentencing in the event of conviction, dismissal, or acquittal of the case.

James Novak, DUI, and Criminal Defense Attorney is a former Maricopa County Prosecutor who is effective, and dedicated to providing a strong criminal defense for his clients. He will work hard to get the best possible outcome in your case.

If you face active criminal or DUI charges in Phoenix, Mesa, Gilbert, Tempe, Scottsdale, or Chandler, AZ call James Novak of The Law Office of James Novak for a free initial consultation at (480) 413-1499.

If defending and resolving your charges is important to you, it’s more important to James Novak, experienced DUI & Criminal Defense Attorney of the Law Offices of James Novak.

Personal Insights

As a proud American, and former US Marine, I consider the USA to be the greatest country in the world.

No one deserves to be deprived of their fundamental human rights. Yet, atrocities mount across the globe as we speak.

We are not alone in this fight, given no country on the planet is immune to the travesties, violations, abuses, or corruption.

Our forefathers who created the Declaration of Independence, The US Constitution, the Bill of Rights, 235 years ago when the United States was founded, likely did not imagine the events we face today.

For over two centuries our brave soldiers fought, lost life and limb for our country while proudly serving our Flag, and the freedoms and rights afforded by our Constitution; and so that no one would not be deprived of basic human rights, protections, or dignity.

We continue to strive to make sure that all those legally within the boundaries of the United States of America would flourish, live freely, and not be violated.

We are the same country. We have the same fundamental values. We have the same rights if not more protections ever before afforded in our Country’s history. The US Constitution has not has regressed.

The problem is not with the laws themselves, but the violations of those laws.

If a person wishes to commit a crime, or an injustice upon another, they will have little regard for the laws. Their actions will be driven by impulse, provocation, threat, emotional instability, fear, criminal intent, or other motive.

When it comes to victim injustice, or brutality, they are not being mindful of the laws in that instance.

Human behavior must change.

Human and procedural modifications can be further explored as they relate to public trust, and law enforcement activities.

More emphasis should be placed on education, training & retraining, accountability,monitoring, supervision, detention and law enforcement surveillance, disciplinary actions, and more legal remedies for victims.

There is much work to be done to improve relationships, and increase public trust within our law enforcement communities. But I am hopeful that we can and will overcome this difficult and turbulent time if we approach and deal with it constructively.

I extend my deepest gratitude to Eyitayo Ogunyemi, Human Rights Attorney in Lagos Nigeria for his valued contributions to this article. We hope you will stay with us for Part II of our discussion.

Excerpts from Part II
“I have even had course to share comparative experiences with colleagues in other countries which clearly revealed that the mistrust that the public has against police institution is universal even though it is on different levels…
I humbly encourage you to re-share this post with the hope that it will go a long way in sensitising the public on simple ways to hold the police institution to account and also create the much sort after change that we desire.” – Eyitayo Ogunyemi

Eyitayo Ogunyemi is an Associate at Falana & Falana’s Chambers in Lagos Nigeria. He is the President of Paralegal Academy which teaches elementary principles of law to the public.

Eyitayo Ogunyemi is the Initiator of “The People’s Parliament” in Nigeria.

Legal Advocate, Eyitayo Ogunyemi is dedicated to raising awareness and educating the great people of Nigeria regarding their human and civil rights, and providing legal advocacy within.

Eyitayo Ogunyemi arms himself with the message that one person can and will make a difference in progressing, evolving, and improving human rights in Nigeria.

Other Articles of Interest:

• Police Brutality: Your Rights
• Liability for Victims of Cruel Punishment or Police Brutality & Wrongful Death
• US. Supreme Court Tips Scale to 4th Amendment Rights at Police Stops
• Grand Juries: A Look Behind the Curtain: An Overview of the Role, purpose, and Processes of Grand Juries in the Criminal Justice System
• Arizona Court of Appeals Marijuana Trafficking Case Study: Part II of II – Suspects 40 Minute Detention for K-9 Drug Unit Not Unreasonable.

Additional Resources:

• Aggravated Assault on Police Officer Laws Arizona
• Resisting Arrest; Classifications; definition Arizona Law
• Eighth Amendment Guarantees in Criminal Cases
• State of Arizona Constitution
• Arizona Qualified Immunity Laws
• The Universal Declaration of Human Rights