The Tennessee Highway Patrol holds an event today at Chattanooga State seeking new employees. (Photo department of safety and homeland security)
A gracious member of the bar takes time today to straighten us out on the uncertainties of arrests, custodial arrests and Miranda warnings.
His name is John Wysong, an attorney with local connections who posts two comments on Facebook about my latest review of Chattanooga police activity. His best advice to members of the public is that they should do nothing to “make a statement to authorities, talk to police, assist police in any way shape or form in an investigation of themselves, or what could turn into an investigation of themselves.” You should, he implies, Mirandize yourself, obviating the need to decide when, from an officer’s perspective, Miranda warnings should be given.
Miranda is the 1966 Court decision which makes it official policy for cops who have custody of a defendant, suspect or victim to notify the individual that he is not required to make any statement, may have an attorney present, and that he be warned that anything he says or produces (by way of physical object or permission search) will be used against him in court.
Miranda is doing poorly in the River City.
The Chattanooga police department did not mirandize Hanson Melvin nor Michelle Gelpin in their false arrests in Hixson on May 29, 2016. It did not mirandize city councilwoman Demetrus Coonrod on June 24 when she was seized and stopped in her car, which had friend Anthony Gladden behind the wheel. Transportation stops rarely get a Miranda warning, though every traveler or operator is in custody, being not free to leave. It appears the department rejects its own policy requiring instant Miranda warning when the person is arrested (“Arrest procedures” policy guide, Page 6).
Mr. Wysong makes other points about arrests, pointing out that that the officer has the burden of proof in making his accusations. He cites key cases defining arrest in Tennessee, including State v. Raspberry, 640 S.W.2d 227, 230 (Tenn. Crim. App. 1982), which, as he explains, “references Terry v. Ohio, 88 S.Ct. 1868, (1968), in its statement that ‘The text of that case makes it clear that for Fourth Amendment purposes the words “stop”, “arrest”, or “seizure”, are synonymous.’ This is to show that under the Fourth Amendment any stop, arrest, or seizure requires justification and that the Fourth Amendment protects in each of these instances.”
Mr. Wysong has a high view of attorneys as members of government, warns against my fomenting “increased unnecessary volatility in a misinformed public” (one that I stand accused of misinforming), objects to my statements about his being pro-police, and speaks about the equanimous state of relations between cops and the American citizenry. — DJT
Best citizen tactic: give Miranda warning to yourself, attorney says
By John Wysong
It is with some measure of hesitancy that I respond to [“If city obeys Miranda rule, it sharpens prosecutor Pinkston’s blade] again. The maxim “never wrestle with a pig, because the pig likes it and you both get dirty” echoes in my mind.
The arena of law is one that requires attention to details and nuances. It also requires reading comprehension. Another requirement is the recognition that what I want the law to be, and what the law is are two vastly different things.
‘Guilty beyond a reasonable doubt’
1. I take it as a personal affront that any assertion could be made that I in any way said, suggested, or even inferred that anyone during any interaction with police should make a statement to authorities, talk to police, assist police in any way shape or form in an investigation of themselves, or what could turn into an investigation of themselves. It is the duty of the State (encompassing the federal government and all state governments) to prove a person guilty beyond a reasonable doubt. At no point have I uttered even the slightest suggestion that any citizen should cooperate with authorities. And, never have I indicated that they should “talk, talk, and talk” themselves into a conviction. As I truly believe that it is exceedingly rare that any statement to police is ever helpful to a defendant, that no one should ever agree to field sobriety tests, and that all requests for searches should be refused.
What I have attempted to do, failing as I have, is to provide simple and understandable examples as a means of explaining the difference between custodial interrogation and arrest and the need for authorities to act in conformity with the decision in Miranda to protect the rights of citizens and their investigation. I find it hard to square what I perceive to be clear statements as a suggestion that I would give any advice to the detriment of my clients.
Citizen protections
2. Miranda is a protection for citizens. And, they should know about these protections. But, it is the duty of a citizen to know these protections, and that they may use at any time. The Supreme Court has not expanded the protections to such a degree that state agents must give them upon any interaction with the citizenry. It is assumed by the Supreme Court that citizens are aware of their rights under the Constitution and the court does not burden police with a role of teaching civics while attempting to solve crimes.
3. Defense attorneys work as a part of the criminal justice system. Defense attorneys are used as a check on the extraordinary power of the State. They attempt to protect society from the creeping growth of overreach by the State. They lead the charge to ensure fairness and fair adjudication of a criminal trial.
Attorneys defend the exercise of rights adversarially
4. Our criminal justice system is an adversarial system. But, defense attorneys are citizens as well. They are grateful for the protections afforded them by police officers and agents of the state that work incredibly hard to protect all the citizens of this country. Defense attorneys more than any other members of society understand the cruelty, the corruption, the abuse, the violence that criminals can wreak upon society. Nonetheless, defense attorneys recognize that the ends do not justify the means and that overreach and abuse by any agent of the state is an affront to society and justice. But, being grateful for the ability of state agents to solve crimes in an ethical and constitutional manner in no way undermines an attorney’s commitment to zealous representation of their client, or willingness to challenge the unconstitutional actions of the State.
5. The statement, “CPD does not Mirandize anyone, I don’t think” shows a complete lack of research or investigation into the inner workings of CPD. A simple FOIA request would quickly confirm not only are Miranda warnings given, but there is often a written waiver of those rights signed by the individual being interviewed.
2 key cases on arrest
6. Without proper citation, it is almost impossible to know what cases exactly you are requesting insight. State v. Garcia, 123 S.W.3d 335 (Tenn. 2003), has nothing to do with our discussion of Miranda. Nonetheless, it states, as I stated previously, that reasonable suspicion is required to make a traffic stop. State v. Raspberry, 640 S.W.2d 227, 230 (Tenn. Crim. App. 1982) references Terry v. Ohio, 88 S.Ct. 1868, (1968), in its statement that “The text of that case makes it clear that for Fourth Amendment purposes the words “stop”, “arrest”, or “seizure”, are synonymous.” This is to show that under the Fourth Amendment any stop, arrest, or seizure requires justification and that the Fourth Amendment protects in each of these instances. Raspberry does not stand for the proposition that each of these things has the exact same meaning. The Supreme Court has made it clear that in each, the requirements of the State to infringe upon the liberty of a citizen is unique.
Worry about ‘societal unrest’
7. I am highly concerned that the information you are passing on to your viewers has no basis in law. If people believe they are being oppressed when agents of the State are, in fact, following the letter of the law, then you are contributing to societal unrest. Should you begin to advocate for changes to the laws or Constitution, I find no fault in that, and may even support you. But, misrepresentations do not help avoid abuse, but engender increased unnecessary volatility in a misinformed public.
8. All citizens should be grateful for the work of those agents of the state that work diligently to protect other. And, I recognize that when I am reviewing an officer’s work in hindsight that often I am in essence grading a paper of someone working under enormous stress and pressure.
Digging up ‘constitutional mistake’ by officer
9. The societal compact that we in the United States have entered allows for certain things to be awarded to my client if I find a Constitutional mistake by the officer. In some instances, someone who might almost assuredly be convicted at a trial will go free because of an officer’s mistake. I will continue every day to look for those mistakes, and in instances of abuse, raise my voice in indignation and confront officers when they are wrong, or overreach. But, that doesn’t require me to not be grateful for their protections. As George Orwell noted, I too will “sleep peacefully in [my] bed at night only because rough men stand ready to do violence on {my} behalf.
10. I am not the sheepdog I once was, but I still support and defend the Constitution against all enemies, foreign and domestic.
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