Thursday, July 14, 2016

Can the State and Courts Circumvent Your Rights?

All week long I have been discussing the implications of the Miranda decision on the criminal justice system.  Lately there have been numerous cases on Fox News, CNN, MSNBC focusing on police conduct and the implications of such conduct on society.  We know the majority of police out there patrolling the streets are outstanding cops doing their job.  Occasionally, like all professions there are a few bad ones.  Once in awhile a police officer makes a bad stop without probable cause or a warrant.  A suspect is hauled into the police station and interrogated until he confesses.  For starters, the suspect was not doing anything at all. Merely on his way home from work when the officer stopped his vehicle.  Once he is placed inside a interrogation cell he is Mirandized in an attempt by the police to get a confession.  The confession is thought to eliminate the effect of the unlawful stop.  Yes and no.  Here is what you need to know.  Simply giving Miranda warnings will not always admit statements or confessions that were obtained after a Fourth Amendment violation.  Even if the confession or statement is made following a Miranda warning, it can be suppressed if the suspect was arrested without probable cause and without a warrant.  This is because the law requires that such statements be "sufficiently an act of free will to purge the primary taint" under the Fourth Amendment.  There are other factors to consider however. What are those factors?  Glad you asked.  Factors include the temporal proximity of the arrest and the confession, the presence of intervening circumstances and the purpose and flagrance of the misconduct. There are other relevant factors as well.  Here are some examples to make this clear.  The Court has held in a case where there was a warrantless arrest and no probable cause at all, that the defendants confession given six hours after Miranda, should not have been admitted in Court. Here the Court flat out dismissed the idea that the Miranda warnings themselves could somehow purge the bad arrest and cure the Fourth Amendment violations.  On the flip side however, the Court also has said that a suspects "spontaneous" admission of owning drugs found in another persons purse  after he was detained is admissible.  Here the officers believed their warrant might have been erroneous.  The Court however rationalized that the conduct of the police did not rise to the level of flagrant misconduct requiring prophylactic exclusion of the defendants statements.  Which brings me back to my earlier post.  The Court and the State are always willing to characterize a defendant's constitutional protections as elastic to avoid suppressing evidence resulting from unconstitutional conduct by the police.  If you have been charged with a crime, call The Law Offices of Randall J Craig. You may reach us on the web at or  We will make sure your rights are protected. #Mirandarights #RJC #Criminaldefense #Law #knowyourrights #domesticviolence #criminaldamage #drugtrafficking #randallcraig #possession #dui #Arizona #phoenix #phx #az #lawyer

Tuesday, July 12, 2016


We have been discussing the Miranda v. Arizona case recently and pondering the question of what that case actually does for a defendant who has been charged with a criminal offense.  We have talked about the fact that a suspect who is in custody must be advised they have a 5th Amendment  right to remain silent and that anything they say can be used against them in a court of law.  Moreover, because of Miranda such defendants have 6th Amendment rights to consult with a  lawyer prior to being interrogated, and if they can not afford one, one may be appointed.  Ok, it is routinely asked of me, "can I pick my own lawyer".  The answer is no.  It has long been  established by the Court in State v. Bible, 175 Ariz. 549 that a defendant is not entitled to counsel of choice or even a meaningful relationship with his or her #attorney.  Moreover, what about those situations where a defendant has various assets and would like to hire his own lawyer but the government has seized those assets. Well there is good news and bad news.  In a fairly recent case concerning the right to counsel and the government's pretrial seizure of a defendant's assets, the United States Supreme Court ruled on March 30, 2016, that a defendant has a 6th Amendment right to use her own "innocent" property to pay a reasonable fee for the assistance of counsel.  What say I about "innocent" property?  I will get to that in a minute.  This issue arose in a case entitled Luis v. United States.  A grand jury charged the defendant with paying kickbacks and other crimes.  The Supreme Court found that "the pretrial restraint of legitimate, untainted assets needed to retain a lawyer of choice violates the 6th Amendment.  The majority on the court rationalized and distinguished between tainted funds and innocent funds needed to pay for counsel.  Anyone who has been charged with transporting marijuana should know when funds are not "innocent".  If someone has been charged in such a crime and their car was used to transport the drugs the government swoops in and uses asset forfeiture laws to claim the vehicle.  Any cash found in the car or that has been alleged to have been derived from the drug deal is also swooped up under the asset forfeiture provisions of the law as being "tainted".  However, if there is cash that can be demonstrated having nothing to do with an illegal act, such cash should be termed "innocent" property.  Such funds may be used to retain counsel of choice.
     If you are charged with a crime, call The Law Offices of Randall J.Craig, PLLC at 480 767-0400 in Scottsdale, Arizona. You may also reach us via the web at or
     In the coming weeks we will continue to take a hard look at Miranda and examine the governments attempts to limit Miranda's impact on the criminal justice system.  For now, keep in mind the protections under the 5th and 6th Amendments to the United States Constitution and do not ever talk without consulting a lawyer.  


Monday, July 11, 2016


We recently posted about Miranda and the true implications of such a fundamental and historic ruling that came down in 1966.  As we stated police must warn people in custody prior to interrogation that they have a Fifth Amendment right to remain silent and that anything they say can be used against them in a court of law.  People in custody also must be warned they have a Sixth Amendment right to consult with counsel prior to and during in custody interrogations, and that counsel will be appointed for them if they cannot afford one.  So what does it mean when someone is "in custody"?  The question is routinely asked of me "when do my Miranda rights apply"? The term "in custody" basically means when someone is not free to leave.  This term includes both police station interrogations and any other situation depriving a suspect of their freedom of action in a paramount way.  As I mentioned in an earlier post there are many holes the State has been able to drive through in asserting that Miranda does not apply.  For instance where the defendant made incriminating statements on his tax returns instead of claiming the Fifth Amendment privilege, because nothing suggested he did so by law enforcement's overbearing tactics. It was said  he instead could complete the return at leisure and with legal assistance.  Another instance is when a probation officer interviews a person on probation, the probationer was not then formally arrested, even though the investigation had focused on a suspect.  Lastly in instances where a citizen is questioned by an IRS agent investigating potential criminal tax violations because there is no custodial interrogation occurring.  In the coming weeks we will focus on other instances where this historic ruling has benefited our lives and also left short many questions unanswered.

Sunday, July 10, 2016


It is no secret to those practicing criminal defense that in the majority of cases we handle the police obtain a waiver of a suspects Miranda rights.  What you need to know is, once the police obtain a waiver of such fundamental and important rights Miranda offers no real protection.  Once you waive your Miranda rights any statements made are admissible at trial.

Miranda v. Arizona was decided by the United States Supreme Court in 1966.  Most non lawyers have a vague reference to this landmark case.  We have all heard references to it on television and in the news.  But do most people really understand the significance of the case itself? Do most people understand what law enforcement could do before this important decesion was held. The Court decided in Miranda v. Arizona that police must warn people before any in custody interrogation that they have a Fifth Amendment right to remain silent and that any statement they make can be used against them. The rights afforded to people by this decesion do not end there however.  The Court also said that any such person detained must be told they have a Sixth Amendment right to consult with a lawyer prior to being interrogated by the police when in custody and counsel will be appointed for them if they can not afford one.
Through the years I have seen many clients utter those famous words to me: "what about the police violating my Miranda rights? My case should be tossed out".  Well not quite.  Assuming a clear cut Miranda violation exists, the effect of such a violation may or may not help a defendant today.  This is because many later decesions by the Court have limited the Miranda decesion and focused its intent on what role a police officers conduct played in getting a confession.  Nevertheless, statements obtained in violation of Miranda may be precluded from the States case.  Many opportunities for the state to sneak them in exist. For instance, as defense lawyers we often struggle to present our clients story. This becomes troublesome when our client has a prior felony conviction. Once he takes the stand, the jury hears he has a felony background.  Although statements taken in violation of Miranda must be precluded, it may not bar use of voluntary statements for impeachment on cross examination if the defenant takes the stand. Other pitfalls remain. At The Law Offices of Randall J. Craig we will be writing about such openings the state can use in the comming months.
   If you have been convicted of a crime and made statements to the police you may reach us at We handle all sorts of crimes ranging from felony drug offenses domestic violence to burglary.  Do not waive your Miranda rights.