Officers have been involved in this scenario a hundred times: You have a suspect and say, “can we talk to you?” He asks, “what about?” What do you have to tell him before he waives his Miranda rights to have his waiver considered voluntary, knowing and intelligent?
In United States v. Davis (Dec. 10, 2019) 2019 WL 6713394, the Unites States Supreme Court explains that Miranda v. Arizona (1966) 384 U.S. 436, 384 does not require law enforcement to explain the nature of the crimes under investigation for a suspect’s waiver of his rights under Miranda to be “voluntarily, knowingly and intelligently” waived. So, what do you have to tell the suspect?
In Davis, Defendant Davis was convicted of providing false statements to a licensed firearms dealer from whom he was purchasing firearms. On the forms, Davis indicated that he was the actual buyer, but in fact Davis was acquiring the firearms for other persons. When ATF performed search warrants at Davis’ house, agents interviewed Davis. Prior to questioning Davis– and setting aside the issue of whether he was “in custody” for purposes of Miranda as that was not an issue before the Court– agents twice advised Davis of his Miranda rights, once by memory and again from a written card. The only information given to Davis about the nature of their investigation was that the search warrants “related to his activities in firearms.” Davis waived his Miranda rights and made admissions about his firearm purchases.
At trial, Davis tried to suppress his statements, first, by claiming that by failing to inform him that he was being investigated for making false statements, law enforcement failed to fully and adequately advise him of his rights under Miranda. It is clear that Davis was fully informed of his rights– twice! As explained above, the United States Supreme Court affirmed that Miranda does not require an explanation of the investigation as part of the Miranda waiver.
Next, Davis tried to suppress his statements claiming that his waiver was not “voluntarily, knowingly and intelligently” made because the failure to inform him of the charges being investigated, amounted to “trickery or deception” to persuade him to waive his privilege under the 5th Amendment. The U.S. Supreme Court reiterates that the Supreme Court has never found mere silence by law enforcement as to the subject matter of an interrogation to constitute trickery sufficient to invalidate a suspect’s waiver. Instead, the U.S. Supreme Court has previously held, and affirmed here, that a suspect’s awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the waiver is voluntarily, knowingly and intelligently made. Regardless, here where the agent told him the warrants were related to firearm activities was not misleading at all.
What does this mean for you? You do not need to tell the suspect anything about your investigation before he waives Miranda, but if you do tell him something, best to keep it truthful and vague… as you don’t want to give rise to “trickery.”
