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The Florida Bar

The Right to Remain to Silent in Criminal Investigations: Consensual Encounters

Generally, Miranda warnings (right to remain silent) are not required where the individual makes statements during a consensual encounter. They are required only where the defendant is in custody and under interrogation. If either element is missing, the warnings are not required.

In Davis, the Court reiterated the test for determining whether one is in custody for purposes of Miranda. The test is whether there is a “restraint on freedom of movement of the degree associated with a formal arrest.” Further, “[t]he proper inquiry is not the unarticulated plan of the police, but rather how a reasonable person in the suspect’s position would have perceived the situation.”

These exact standards have been applied to traffic stops by the U.S. Supreme Court in Pennsylvania v. Bruder, Berkemer v. McCarty, and the Florida Supreme Court in Allred v. State. These cases stand for the proposition that Miranda warnings need not be given for an ordinary traffic stop until the defendant is subjected to circumstances that are the functional equivalent of a formal arrest. This is so, because such stops do not expose the defendant to a coercive environment warranting Miranda rights advisement. In making that determination, the court must apply the same reasonable person test described above in Davis.

The uncommunicative subjective intent of the officer is irrelevant in the determination of a reasonable person’s understanding of his situation. Similarly, whether or not the defendant is the focus of the investigation is irrelevant in that determination.

If you have been arrested in Fort Lauderdale, contact the criminal defense attorneys of William Moore, P.A. We will be happy to discuss the effect that an individual’s right to remain silent has on any particular case.

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