Is this a violation of Miranda? LEO asks...?

Lets say I'm working one night, and go out to a bar for closing time as we've had many fights there as of late. As I'm leaving, the car in front of me runs through a stop sign. I initiate a vehicle stop, and once i get to the window, I smell the odor of freshly burnt marijuana (PC). I run the driver and everything is fine. I then ask the driver if they have been smoking weed, and they say yes. I then ask where it is, and they say in the floorboard.

Sidenote - This was only a small roach, and I was getting off in 20 minutes, and was NOT going to arrest them for this.

I then ask if there's anything else in the car, they say no. I search, and find a nickle sack, and 4 xanax (felony)

I then arrest her for possession.

My partner and I agree that theres nothing wrong with my PC for the stop, or PC for the search.

My question I guess is on the legal definition of "in custody."

The question, "Have you been smoking weed?" is a question asking the driver to incriminate themselves.

If the LEO was not intending to arrest based on that alone (keep in mind that the driver did not know this and probably felt that they were not "free to leave") is this a violation of the driver's Miranda rights?

and dont bother flaming this, I fully support LEO's being one, just a hypothetical situation to clarify a grey area Miranda decision.

<jake>

I don't think its that much of a gray area. Read the Supreme Court case Berkemer v. McCarty 468 U.S. 420 (1984). In it, the court found that police are not required to Mirandize during roadside stops. The defendant in admitted to smoking weed during the traffic stop:

"The Court then tackled the more difficult question of the statements McCarty made while interrogated at the roadside. McCarty tried to persuade the Court that the Miranda warnings apply to these questionings as well, because he was"deprived of his freedom of action," as the Miranda decision stipulates, while Berkemer maintained that traffic stops lay outside Miranda's scope. The Court decided that since traffic stops usually are temporary and brief and since they typically are not that intimidating, Miranda warnings apply to formal arrests, not to routine traffic stop questioning."

Its up to the suspect to know their rights in that situation and decide how to answer.

Dan V

I find this question stupid and I don't even see any Miranda implications in the whole question.

Number 1 your allowed to ask any question you want during the initial stop. The person incriminated themselves during your initial questioning not during detainment. Only if they incriminated themselves during detainment when they were not free to leave would there be a Miranda implication. Custosy is when a reasonable person believes that they are not free to leave... this happens much after the initial questioning.

fangtaiyang

The "Miranda" should not have been necessary until the actual arrest.

chivillry63

No there is no precident to stop you from asking that question; it's the same as doing a d.u.i. stop and asking the person whom you smell liquor on if they had been drinking, it's up to them weather or not to answer the question, as your training and experiance have already estabished p.c. and the person is not concidered "in custody" until thier right to leave of thier own free will has been taken from them

John U

I say you were conducting yourselves properly and well within Miranda. You had the PC for the stop as well as upon smelling the odor of marijuana you had the PC to investigate further as well as search the immediate area of the driver. The rest (whether you intended to initially arrest or not is known only to you) but legally can be argued as search incident to arrest leading to the felony charges of possession especially when you gained a consent to search from the operator of the vehicle. Happens everyday a thousand times a day and I would say you did what you had to and no ones Miranda rights were violated in the process. Whether one is free to leave can also occur if you are detaining for purposes of further investigation or placing someone under arrest. You don't have to be in law enforcement to figure this out because even with a mediocre understanding of Miranda you can say this happens three times an episode on COPS as officers ask questions where people end up incriminating themselves but after that it stops and they get advised. If I smell pot and ask if you have been smoking it is not wrong, as it is illegal to drive impaired. The next question of asking to search a vehicle is not an incriminating statement even if they haven't been advised up to this point. It is either yes or no and even if they refuse you still have enough PC to get a dog, which gives you the additional PC to legally search without their consent.

How many times do we know how fast a vehicle was traveling and upon approaching the driver the first thing we ask is "do you know how fast you were going?" That is an incriminating statement and can be construed as violating Miranda but we do it all the time. The caveat here is isn't the person being stopped for a traffic violation being either detained or temporarily placed under arrest pending further investigation. Once we write a traffic ticked aren't we releasing them on their own recognizance with either a promise to pay or appear in court by them signing the citation which is not an admission of guilt or innocence. To back this up what happens when we explain that their signature is not an admission of guilt or innocence and they refuse to sign what happens next, sign it or I will take you to jail, one or the other right? When conducting a traffic stop alone for whatever reason then no, the person (s) is/are not free to leave whether they feel they are under arrest or not they are certainly being legally detained/in custody and are not free to leave until we either release them or take them to jail. From what I read here you guys were well within the probable cause to conduct further investigation and the questions were not violations of Miranda when you consider both the legality of possession as well as public safety (DWI) and officer safety as well. I don't condone officer misconduct and it is great you are at least aware enough to check yourselves on these questions but as long as you conduct yourself as you have I would leave the possible Miranda arguments up to the attorneys where even in this case a sane defense attorney will figure out a way to get a good plea agreement for their client long before exploring an acquittal based on a Miranda violation.

Guru

since she gave you an affirmative on the weed she thus busted herself

with the pills and the nickle bag you did the right thing and justice seems to
have been served~I think on a first offense and she cooperates she will be getting off with a light slap on the wrist but I do not believe you violated her *Miranda*~~in the long run you are doing her a great service as well as the people like you and me ~~taking the *druggies* off the street

ahsoasho2u2

Miranda is used when under custodial interrogation.
The question you pose is at what point is custodial to be imposed?
1. The actual arrest was for a traffic stop.
When stopped, weed was smelled and you asked her about it, SHE VOLUNTEERED the answer.

2. You then asked about more items and they cooperated with your request. (Voluntary and of their own free will to do so)

3. You arrested her for possession.

The court in NY v Belton, 453 U.S. 454, (1981) had the same principal to deal with findings after a search and said; this has no workable definition: "the area within the immediate control of the arrestee "

Now on appeal an attorney will as the court for the reasonableness of the search beyond limits and the answer would be that the search was done within bounds already applied by the court earlier.

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