Question: My nephew was walking to a Marta train station when he was stopped and arrested for Possession of Marijuana Less Than an Ounce near
Underground Atlanta in Downtown Atlanta. The officer said that he could smell burnt marijuana on my nephew when he asked him his name. The officer said that my nephew was not under arrest and that he could leave if he liked. However, after he said this, the officer stated that he just wanted to ask my nephew a couple of really quick questions. After the officer asked three questions, my nephew admitted to smoking marijuana and having a five dollar bag of marijuana in his front pants pocket. My nephew consented to a search and he was arrested. The officer never read him his Miranda Rights like they do on TV. Will my nephew’s case be kicked out of court as being an illegal arrest?
Answer: No, the police encounter and arrest were both legal. In June 1966, the United States Supreme Court created a legal standard for police encounters and citizen questioning with Miranda v. Arizona. The Miranda warning or giving an individual their “Miranda Rights” is intended to protect a citizen’s Fifth Amendment right to refuse to answer self-incriminating questions from law enforcement officers.
First, it is important to note that a police encounter is not an arrest for purposes of Miranda. The police are allowed during an encounter to ask non-testimonial questions such as your name, address, and date of birth. To get this information, an officer may ask to see your state- issued driver’s license. The United States Supreme Court has ruled that asking an individual for this non-testimonial information is not an unreasonable detention, and thus legal. Miranda Rights are invoked when there is a “Custodial Interrogation.” This legal term basically means that an individual is not free to leave and the officer is asking testimonial questions that could be used against that individual in a court of law. A prime example would be when an officer has arrested an individual and is now asking that individual questions about their alleged crime.
Here, the officer said that the nephew was free to leave before he asked one question. There was no arrest at that time. For purposes of this article, the nephew could have kept walking towards the train station. He had a choice to walk-away, not answer the questions and not consent to a search of his persons. All the nephew’s actions were voluntary. Spontaneous utterances or voluntary statements may be used as evidence in court. Therefore, the nephew’s answers to the officer’s questions will be admissible in court and the arrest will be deemed legal.
Please exercise your legal right to remain silent when encountering law enforcement officers and to walk-away if the officer states that you are free to leave. Remember, you don’t have to be rude to law enforcement officers when exercising your rights. Be polite and call The Boddie Law Group, LLC at 404-287-2393 if you are arrested for a crime in Georgia.
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