THE MIRANDA NOTICE AND THE PRIVATE INVESTIGATOR
A Collection Of Issues And Responses From The Private-Eye Mailing List
Compiled By Ralph D. Thomas

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I recently attended a seminar on Interviews and Interrogations. I had quite
an argument with the instructor on Miranda and the Private sector.

My understanding as of this date is that only Law Enforcement, or Private
Security with police powers of arrest, are required to give Miranda Warnings
during accusatory interrogations or arrest.

The instructor said that 3 or 4 years ago there was a Supreme Court ruling
in New Jersey stating that Private Security persons are required to give
Miranda and that he believed Private Investigators.

I asked him for the case identifier/number. He had no back up, said he
called DAs and would have an answer for me, but none ever came.

This is a serious question, does anyone know the answer and can give me the
case with date, etc. so I may substantiate the information.

Please excuse any spelling errors, I do not have spell check.

Thank you in advance for any information.
Jim Klingensmith
=================================
Protective Circles, Inc
P.O. Box 1173
Martha's Vineyard Island
Edgartown, Ma. 02539

James Klingensmith, President
Licensed Private Detective, Massachusetts #P-136
Phone: 508-627-8787
Fax: 508-627-4099
email: circles@vineyard.net
http//www.vineyard.net/biz/circles/index.html

RThomas007@aol.com wrote:
>
> This is an interesting subject. I know of no law but I could certainly see
> this being used by a smart defense attorney to disallow admission of evidence
> based on the fact that the miranda was not read before the evidence was
> obtained in a criminal case. Correct me if I'm wrong but I don't believe that
> Miranda applies what-so-ever to civil cases.
>
> Think about it........if you were a defense attorney, wouldn't you try and
> use this angle?
>
> Although I have seen no statutory law on the federal level, there might be
> state laws concerning it that are amplified above and beyond what the federal
> law says. When that is the case, (that is, when state law is stricter than
> federal law) the state law applies within that state. I would also thing that
> somewhere there is some case law on it but it's liekly be a bear to research.
> Can ANYONE throw some light on this or has anyone has any dealing with it?
>
> Ralph
> National Association Of Investigative Secialists
> http://www.pimall.com/nais

Ralph:

Restatement of Torts 2d 120A recognizes the right of temporary detention without
arrest by anyone who reasonably believes another has wrongfully taken a chattel,
provided that the detention is solely for reasonable investigative purposes and
is carried out only upon the premises of the detaining party.

Generally, private sector retail security investigators only detain suspected
shoplifters, or employees suspected of theft, until the Police arrive to make the
Arrest based upon sufficient probable cause a crime was committed. When in LEO
Custody, Arrested suspects must be given food, shelter, and medical treatment.

Many states have a Temporary Detention Statute (Chapter 812.015 Florida Statutes)
to provide merchants statutory immunity from civil and criminal liability. Such
merchants can detain suspects for a reasonable length of time and ID the suspects
to investigate if a crime was committed. LE should be called to make an Arrest.

Miranda is a Constitutional warning for Police during Custodial Interrogations.
When the Police are about to Interrogate someone who is in their Custody, or who
has otherwise been deprived of their freedom, by (governmental) authority, in a
significant way, that person must be given Miranda warnings, as prescribed by the
U.S. Supreme Court (Miranda v Arizona).

Miranda makes it impermissible for Police to attempt to talk suspects out of any
decision to remain silent. Ponder the words on a plaque beneath a huge billfish
hanging on the wall of the Honorable Pinellas County (FL) Judge Quesada's
chambers, "If I had kept my mouth shut, I would not be here."

Miranda mandated the only time a Police Interrogation can be conducted on a
suspect who is in Police Custody, or otherwise deprived of his freedom, is after
the warnings and after he has expressed a willingness to answer questions without
a lawyer present. A confession obtained by Police obtained in violation of the
Miranda rules is inadmissible as evidence, except for the limited purpose of
using it to discredit or impeach the confessor when they take the witness stand
and deny guilt. Miranda has no application in the private sector, except perhaps
when PI's investigate Police abuses against criminal defendants for lawyers.

Private persons, including retail security or loss prevention investigators, and
others, like insurance company investigators, need not give Miranda warnings to
suspected employees, customers or others, even when the suspected person has been
subjected to a Citizen Arrest. However, if the arresting citizen uses physical or
psychological abuse or threats of abuse, confessions or admissions may be
excluded. Only voluntary confessions or admissions are useable as evidence.

Trickery and deceit by LE, however, may provide an admissible confession or
admission. The Courts seem to look to the totality of the circumstances in
determining admissibility. Confessions obtained after an illegal Arrest may be
subject to the Exclusionary Rule because of the unreasonable seizure provision of
the Fourth Amendment. That is why, when circumstances permit, suspects are
requested to come to the Police Station, rather than be picked up, unless there
are reasonable grounds for Arrest and Custodial Interrogation.

If a retail security officer or loss prevention investigator is a moon lighting
LEO, or working in conjunction with a LEO, or has been commissioned by the state,
county or city, of if full police powers are given, i.e., to campus police, the
Miranda warnings must be given. It is of no consequence if the private sector
operates in a strictly private citizen capacity or under a commission or license.
The private sector is not obliged to issue Miranda warnings in the absence of a
governmental grant of powers comparable to those possessed by the regular Police.

SeeYa!)

Ron Azzarello
ALLIANCE Surveillance & Investigation
Dunedin, Florida 1-813 736-6775

p.s. This is as short as I can make it.
alliance@IntNet.net




Protective Circles, Inc. wrote:

I recently attended a seminar on Interviews and Interrogations. I had quite
an argument with the instructor on Miranda and the Private sector.

My understanding as of this date is that only Law Enforcement, or Private
Security with police powers of arrest, are required to give Miranda Warnings
during accusatory interrogations or arrest.

The instructor said that 3 or 4 years ago there was a Supreme Court ruling
in New Jersey stating that Private Security persons are required to give
Miranda and that he believed Private Investigators.

To all,
The bulk of my business is criminal defense. To my knowledge, unless you have
the power to arrest, and do so, you have no obligation to "read miranda" to anyone.
We are "private" investigators, not investigators working for the state.
I have never run into that problem. But who knows, life isn't over yet.

Jim Wingate
Wingate Investigations
124 South Metcalf St.
Lima, Ohio
419-225-6234
wingate@worcnet.gen.oh.us

It is my understanding that Miranda rights need only be read to an
individual who is under arrest. Many law enforcement personnel are now
including Miranda with witness statements, but generally, only law
enforcement personnel can make an arrest. In order for an arrest to occur
there must be probable cause and the Supreme Court has determined that
probable cause must be determined by an officer's experience, knowledge, as
well as some continuity of acts by the subject to warrant probable cause,
etc.

But......James' situation does pose an interesting question. For example,
if a private security person or private investigator interviews a
shoplifting suspect and the subject's statement at the time ends up being
passed on to law enforcement and an arrest follows based upon that
information, then I would think it could be challenged. I would hope the
private security/investigator would have corroborative evidence such as
film, possession or eyewitness accounts so that the whole Miranda issue
would be minimized.

I know that in many instances, information passed on such as described is
considered a "lead" to law enforcement and constitutes nothing more that
community assistance. In this regard, Miranda would not have to be read by
the private security/investigator.

If I stopped someone for shoplifting, I would simply attempt to physically
isolate the person from the crowd, be sure my butt is covered with
evidence, ask for no statement from the subject and call the police. Let
them decide if an arrest is warranted and Miranda is necessary.

Our group of subscribers should have some very interesting responses to
this one and I'm eager to see their opinions!

Jeff Rataiczak
condor@dnaco.net

I would suggest that someone check New Jersey's Rules of Criminal Procedure.
This would be highly unusual for the Miranda rule to apply to private citizens.
Remember Miranda was derived in purpose to serve the Constitutional
protections afforded against the police (government).

If New Jersey extended the ruling to private security they would be in their
rights to do so.
Remember this trusim- the State can always extend you more rights than the
Federal but they can never deprive you of more rights than than the Federal.
----------------------------------------------------------------------------
--------
Joe Black
InfoQuest Investigative Services
6100 Hollytree Drive # 252 Pager: 800-624-7243 (210-9026)
Tyler, Texas 75703 Voice:903-534-5441
Texas License # A-8117 Fax:903-509-1459

E-mail:InfoQuest@tyler.net
URL's: http://www.tyler.net/infoquest.. /index/more.htm.../index/cic.htm

As a Welfare Fraud Investigator, working at the Local, State and Federal
level, I was advised by our local Commonwealth's Attorney in Virginia Beach,
Va. that I did not need to advise suspect of Miranda Rights prior to
interviewing because I had no power of arrest and no authority to hold the
client against their will.I presented the evidence I collected to a Grand
Jury as probable cause to determine a "True" Bill of Indictment. If a True
Bill was issued, the client was then arrested by the Warrant Officer and
advised of his rights. This procedure was never challenged by any Defense
counsel in any of the hundreds of cases I prepared for Court including those
in which I was able to secure a Notorized signed statement of intent to
Fraud. Of course, I can only speak from my limited local experience. Now
that I am in the Private sector, I will follow the advice of the attorney I
serve.

Sarah Sammons
OIIS
Online Information and Investigative Services, Inc.
Va. Private Security Services Business Lic. 11-2109

oiis@exis.net

Jim,
I believe that your understanding is correct though I'm not sure that if you have
powers of arrest as a private security officer you are required to give the warning.

First, the warnings are required ONLY when a person is in custody, not when he is
a suspect and/or the focus of an investigation.

Second, private individuals (that includes private detectives, security, store
security, etc.) are not required to give the warnings UNLESS they are acting as
agents for government law enforcement agents. That is, you are working a joint
investigation of, say, theft of proprietary company information at XYZ Corp.
A suspect is identified and rather than the cops coming in and putting the arm
on the guy, they ask you, as company security director to haul him into your
office, squeeze him and intimidate him by making him think that if he refuses to
speak to you, his job and life as he knew it are history. In that case, I think
you can forget about using anything gained from the session in court. BTW, the
same scenario holds true, and is probably seen more often, in the case of a
search of employee spaces in a plant. If the cops plant the idea in your head
and you react, you need a search warrant if acting as their agent.

Third, even if the instructor was right and it's possible that he is since he was
referring to what a New Jersey court has ruled (there are some really strange
people sitting behind massive wooden desks wearing black dresses<g>), it only
applies to New Jersey. You're up in Martha's Vineyard, why in hell would you
ever want to go to New Jersey? <bg>

Bob

To James Klingensmith and the Private Eye members,
Wow, this crew is definately the best at creating interesting
discussion material!
Well, where to begin? First, lets take a jab at the law. Each and every
state is different (we all know that) and every state expects a little
something different in their expectations of private investigators. In
some states, a PI is nothing than another businessperson whose trade
industry involves investigating instead of selling something or making
something. In other states, the PIs are associated with the security
people and viewed as pseudo-law enforcement persons. Find out what your
state thinks of you and that will boil down the use of Miranda.
As stated earlier, the whole purpose of Miranda is to protect the
public from an overzealous government entity empowered to strip freedom.
If the Supreme Court starts forcing private investigators to read
Miranda, what are they saying?
- are they saying PIs are like police officers? If that is the case,
why don't PIs have the same police powers as LEOs?
- are they saying that anyone who makes a 'Citizen's Arrest' must read
the arrested person the Miranda Act? Will this be a new part of 'Civics'
class in Mrs. Stumblebum's eighth grade class?
Also, it is not always necessary to read Miranda, although it should
always be done. As a law enforcement officer, I have made arrests when
the entire incident played out right in front of me as a witness; I
cuffed the perp, brought him to the station, processed him and wrote the
reports, and took him to the jail without ever questioning him about the
crime because I was RIGHT THERE. The only questions I asked of him were
basic identity stuff (name, address, SSN, etc) for the arrest report.
No questioning was needed because I had all of the info I needed from
my own two eyes. Miranda is only to educate a person when they are going
to be asked questions which may determine their guilt or innocence.
What do the states and courts want from private investigators? Do they
independant bussinesspeople or pseudo-law enforcement?

Don Cesaretti
Cesaretti and Associates
cesare@gbsias.com

Jim,

Ive been in law enforcement for many years and I am with you. I
have not heard of it. It sounds like your instructor leaves a lot to be
desired. If he is teaching such a thing he should be able to support what he
said. I know if I'd made a statement like that I'd have a copy of the
decision in front of me. That type of decision would affect a lot of
people. We had several of these wan-a- be instructors in my department.
They are usually someone's fair haired boy with not that much practial
experience, a yellow streak up their back that have been doing a lot a
A___k___ing around the department, but yet they are certified instructors.
They are teaching what they want you to believe not what is fact. I
would find out for myself about that law. And I believe there are places on
the internet you can find that. Then if he is wrong be sure to bring it to
his attention. Then you will know what kind of instructor he really is.
Did not mean to ramble but that has been a peeve of mine for a long time.
We have had officers really get into problems because of poor instructors.

Mick.
Mick@InfoAve.Net

Good point... I haven't heard of any particular state having
different rules, I've also taught in Oregon, Montana and Wyoming... but
I'm a California kinda' guy....

Regards,

Shannon Mossman
The Thin Blue Line
CA PI #18913
619-471-1851
thinblue@zNET.com


Last time I checked, only those exercising power for the state have an
obligation to advise of constitutional rights. Because security guards
(with some exceptions) and all investigators (perhaps with some very
obscure exceptions and missions) are private citizens, there is no
requirement or mandate to use Miranda. This is what I've been told and I'd
really like to see the citation of any case that says different. At first
read, I'd think your "source" is full of it, but having been full of it at
times, I can keep an open mind.

Gil


Gil Zimmerman, Agency Director
The SAWYER Company
1720 Smith Tower
506 Second Avenue
Seattle, Washington 98104-2311
(206) 953-7847 (24-hrs)
(206) 624-6362 (fax)
sawyer@gnn.com

Ralph

fter a quick call to the C.A.'s office, I can now say "Yes" you can use my
Miranda post. It appears that at one time - long ago - many groups were
issuing the Miranda when it was not required. Our talented and informed
C. A.'s advised against useage by Fraud Investigators years ago. So, I can't
imagine why a local attorney would currently suggest useage by a P.I.

Thank you for checking Ralph.

Your contributions to the P.I. Profession and to me personally
(through your writings and inspiration) have been significant.
Many thanks!

Sarah Sammons
OIIS
Online Information and Investigative Services, Inc.
Va. Private Security Services Business Lic. 11-2109
oiis@exis.net

RALPH

Advising a suspect of his Constitutional right to counsel (6th Amendment) and right against self-incrimination (5th Amendment), as described in the Miranda Warning only applies to custodial interrogations. I would say that this means if you are an officer or investigator, whether government or private, and you are questioning a person about matters that could result in him/her being charged with a crime, and he/she is not absolutely free to leave at anytime he/she chooses, then Miranda would be appropriate. When in doubt, Mirandize. At least that's the way we teach it.

Tom Beardslee,
SOUTHEAST MISSOURI STATE UNIVERSITY
Law Enforcement Academy
TBeards221@aol.com

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