Originally posted by boomstick:
Correct - but they don't have to tell you that unless and until they actually place you in custody.
And unless they're actually asking you questions...they can use whatever unsolicited comments you make against you without a rights waiver from you. And there are exceptions too. The "public safety" exception and using an otherwise inadmissible statement to impeach you when you lie on the stand.
I am not sure I understood you correctly, but basically they can interrogate you as ruthlessly and persistently as you're willing to put up with, as long as you're legally free to leave (whether you feel like you can or not is a personal problem). If you have the legal power to stop talking and walk away, then you're not in custody.
Here's the point: everything you say up to the time you're formally arrested and placed in custody is admissible as evidence against you. It don't make a spit's worth of difference how they got you to say what you said, as long as you were not in custody.
How to decide whether or not you're in custody: There are three levels of "arrest" (a word we get from Norman French influence on the common law of England which simply means, "stop").
The cops can stop you and demand that you tell them who you are and where you live. In some states, that's limited by time of day, because at common law they could only do that at night. That's an identification arrest, or detention for identification purposes, and because all you're legally required to do is to tell them your name and address, anything else you say is your having volunteered information, so it can, and will, be twisted and distorted and mischaracterized and used against you.
The second level of arrest is an investigative arrest or detention. In order to detain a person beyond the identification phase, a cop has to have "reasonable suspicion". That means an objective reason for thinking that "something's up". It does not require "probable cause" or any identifiable problem. Just a good reason for being suspicious. At this point you're neither free to leave, nor in custody - it's sort of a limbo situation. The cop can pat you down for weapons, if he's got reason to think you may put his life in danger (they always think that, because they're cops and you're the person whom they've stopped, and therefore you probably want to kill them - the courts routinely uphold this kind of reasoning). This is the point at which you'd better have your concealed carry permit with you. But unless you're driving, you don't have to produce any other identification. Nor do you have to say anything other than who you are and where you live, so if you volunteer information, it can, and will, be twisted and distorted and mischaracterized and used against you.
The third level of arrest is the custodial arrest. This requires probable cause to believe, on the basis of objective fact, that a crime has been committed, is being committed, or is so close to being committed that it may as well be considered as "in progress". At this point, they will pat you down, put you in the back of the cruiser, and will probably put the 'cuffs on you. This is the point where they have to tell you that you have rights and get you a lawyer if you want one. If, after having been warned, you go ahead and volunteer information, it can, and will, be twisted and distorted and mischaracterized and used against you.
The moral of the story is to keep your mouth shut, except (1) be polite; (2) tell them who you are and where you live; and (3) say, "I want a lawyer." If they had probable cause to arrest you, then they're going to arrest you, and nothing you say is likely to affect that outcome, so keep your mouth shut. If they do not have probable cause to arrest you, then all you could do by talking to them is to give them probable cause to arrest you, so keep your mouth shut. This is not a game that you can win; all you can possibly do is not lose. If you open your mouth and start talking, your odds of losing go up astronomically.
Here's another thing. If you're not an attorney who actually practices in the field of criminal law, then you really don't have a clue what's going on. Half the time, the cops don't have a clue, either. You have no idea what a prosecutor will make of what happened and how he'll characterize it to a jury. My personal opinion is that the law ought to be accessible and simple enough that everyone can understand it, but it's not. Almost no one even understands such day to day things as vehicular right of way. You are really at a serious disadvantage when you are dealing with the police, and you have no idea how out of your depth you really are. I can't stress enough the importance of finding a good attorney before you need one. And, like plumbers, store clerks, cops, and everything else, some of 'em are really good, some are really bad, and most are average. If you wait until you're in the back of a police car before you start thinking of lining up a native guide in the legal jungle, the overwhelming odds are you're going to end up with a bad lawyer, or if you're lucky, an average lawyer. That's not what I'd want. You want an average surgeon cutting up your abdoment? Well, how do you feel about spending a few nights in jail, and, for the rest of your life, having to explain why you were arrested and charged with a crime?
Again, the moral of the story is, keep your mouth shut. Don't be a jerk, but don't blather, either.
