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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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This question is about arrest procedures in CA: a person

Resolved Question:

This question is about arrest procedures in CA: a person is sitting in his car, in a grocery store parking lot and is approached by police, who ask him what he is doing...he says he's waiting for his friend who is in the bathroom. He then implies consent to search the car after he gets out of the car so he can reach his ID in his front pocket. (when asked by police if they can search his car, he says "well, you're gonna do it anyways" as he is sitting on the curb) ...then, consequently they find contraband in his car...somewhere along the line he is handcuffed... at what point is he under arrest and at what point are they required to inform him and/or read him his miranda rights? Friend of mine was in this situation and despite being handcuffed and subsequently questioned by police, was not read his rights until he was at the police station being booked.)
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Jim Reilly replied 2 years ago.
Hello againCustomer...

Clearly, this person was under arrest once he was handcuffed. From that moment on, any questioning was custodial interrogation and, to the extent that such questioning occurred before he was Mirandized, his answers are subject to being suppressed in court.

In the situation you described, your friend was not required to answer the very first (or any other) question. He did not have to tell the cops what he was doing; did not have to provide identification, did not have to get out of his car; did not have to consent to the search of his vehicle. However, once he did each of these things, the cops could legally look in the vehicle and the discovery of the contraband is admissible evidence against him.

What's wrong, primarily, was the fact that your friend, like most people, has a misconception of just what the cops can or cannot do and what response(s) are required of people when approached by cops (though, as I mentioned above, his un-Mirandized, post-arrest statements are subject to suppression).

Thanks again for asking your question here on JustAnswer. If you have any other questions about this situation, please let me know.
Customer: replied 2 years ago.
Cool! Would never have believed you were up this late or would have requested you personally -- esp. since you are already familiar with this case...so given what I said above, as well as what you know from previous questions (yes, I have enough hubris to believe that you recall the details of the case)...is there any chance of having the case dismissed because they violated his rights?
Expert:  Jim Reilly replied 2 years ago.
LOL, I am almost always up late!

Is this the same situation as the question I answered about "furtive movements" being the reason why the cops approached the individual in the vehicle?

While the failure to Mirandize can result in suppression of any statements that he made after his arrest and prior to being read his rights, the case can still be prosecuted on the basis of other evidence (such as the contraband found in the car).

Generally speaking, violation of rights does not mean automatic dismissal, just suppression of evidence. Of course, if the suppression leaves no evidence, the DA will be forced to dismiss. That seems unlikely to be the case here, as the scenario described would still allow for the admissibility of the contraband found in the car. And, since this individual was in the car, he would be considered in possession thereof even if it didn't belong to him.

Thanks again for asking your question here on JustAnswer. If you have any other questions about this situation, please let me know.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
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