A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Monday, July 13, 2009

"We Have No One In Custody, Legally."

That was the Sheriff of Escambia County, Florida yesterday during an interview on cable TV regarding this horrific murder of the parents of 16 children in their home.

The three people arrested yesterday will be prosecuted for this unexplainable brutality, and if they are guilty, there is no doubt they will receive the maximum penalty for whatever they are eventuallly charged with.

But I'm tired of the semantics. I'm tired of the bullshit.

Let's review.

When I was growing up, both as a kid, and in the criminal justice system, there was no such creation as a "person of interest."

Everyone knows Miranda, you know, what we hear on Law & Order every 3 hours? "You have the right blah blah blah?"

Miranda applies to persons in custody.

In custody?

We defense lawyers litigate that every day.

In custody is determined on a "totality of circumstances." Was the person "free to leave?" (No one is ever free to leave while with a police officer, but we like to say that they are sometimes.) Was anything said to the person to lead them to believe they were a "suspect?" Were they in handcuffs, in the back of the police car, put in a room, taken somewhere, and on and on and on.

How do we take someone into custody, not arrest them, knowing they are a suspect, and not have to read them their "rights?"

We call them a "person of interest."

Person of interest=suspect.

But not legally.

When the Sheriff said yesterday that "we have no one in custody, legally," he was saying this:

"We have the murderers in custody, they are going to be arrested, but we are getting a "rights" free confession out of them before all that damn constitutional crap comes into play and we have to tell them they don't have to talk. So please lady, don't ask if we have anyone in "custody" 'cause we don't."


Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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