Southern California Defense Blog

It is never a good idea to speak to the police without a lawyer. Many people incorrectly believe that the police have to read you your “Miranda rights” before they question you. However, what many people do not understand is that the formal Miranda warnings are only required if two prerequisites are met. Before the police must issue a Miranda warning to a suspectin a criminal process:

1. The suspect must be in police custody
2. The suspect must be subject to an interrogation

There is a major issue when a suspect voluntarily shows up at the police station for questioning. Investigators and detectives are well-trained on extracting any and all incriminating information from you. Detectives are permitted to lie and deceive in order to extract a confession. No suspect should make statements to police without an experienced criminal defense attorney by their side.

Any questioning that happens where the suspect is free to leave could be considered voluntary and therefore admissible in court. A voluntary statement may be used in court, and the police are not necessarily required to give the Miranda Rights warnings. There are many times, that the most incriminating evidence to a crime is the defendant’s own statement made to the police.

Self-Incrimination – Protection under the 5th Amendment

The 5th Amendment protects people from “involuntary” incriminating statements to law enforcement, which can be used against them in a court of law. An “involuntary” confession is one where the suspect’s self-incrimination was the product of law enforcement techniques and methods offensive to “due process.” Involuntary statements are inherently untrustworthy, and the use of such statements “violates our fundamental sense of decency.” A court must consider the totality of the circumstances, focusing both on the nature of the accused and the techniques used by law enforcement

NOTE: Recently, the court of appeal in California decided that Miranda warnings are not required for a person on probation. If you are on probation, and police officers arrive at your house to conduct a probation search to determine if you’re in possession of drugs or weapons, the police may ask you incriminating questions without first advising you of your Miranda rights. Later, at the probation revocation hearing, any statements made by you will not be excluded for lack of sufficient Miranda warnings.

If you or a loved one is accused of a crime contact the California criminal defense attorneys at Wallin and Klarich. Wallin and Klarich has many years of experience successfully defending clients for over 30 years. We will work to aggressively help you and to ensure that your rights are protected. The attorneys at Wallin & Klarich can be reached by phone at (888) 280-6839. With offices located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina, Victorville, Torrance, and Sherman Oaks there is a Wallin & Klarich attorney available wherever you happen to live. We will be there when you call.

When it comes to “Miranda Warnings” the basics are simple: Any time you are legally “in custody” and authorities wish to question you, the following must first be advised:

(1) You have the right to remain silent
(2) Anything you say can be used against you
(3) You have the right to an attorney
(4) If you cannot afford an attorney, one will be provided for you.

In October, a California Court of Appeal in People v. Gonzalez clarified when authorities can and cannot ask questions to a suspect after the suspect has invoked his Miranda rights.

After Christopher Gonzalez was charged with attempted murder he was taken to a Sheriff’s Station.

Once at the sheriff's station, Detectives interviewed Christopher. Christopher initially asked if he could speak with his parole agent Michael Lum. The detectives stated they needed to speak with Christopher first. They asked him some general intake questions. One detective then read Christopher his Miranda rights. Christopher stated he understood his rights and told the detectives he and Daniel had some problems because Daniel was "talking some stuff" to him.

As the detectives continued to question Christopher about the incident, Christopher unambiguously invoked his right to speak with an attorney. Detective Navarro replied, "No worries. No worries." Detective Navarro then asked Christopher if he wanted to speak with his parole agent.

Detective Licudine offered to leave the room if Christopher wanted to speak with the parole agent. The detective told Christopher that she (the detective) would not be able to speak with him if he invoked his constitutional rights. Christopher responded, "Yeah, I can talk to him."

Agent Lum was at the station because the detectives asked him to arrange a parole hold on Christopher. He spoke to Christopher for about 10 minutes. During this time the detectives were not in the room.

The record shows Agent Lum encouraged Christopher to cooperate with detectives and to tell the truth, and allegedly told Christopher, "talking about your side of the story helps me out, and helps yourself out." The record further shows that when Christopher expressed concern about going back to prison and getting the maximum punishment, Agent Lum stated, "so help yourself out, for yourself. Help yourself out. I don't want to write the report that says subject was uncooperative with the . . . investigating detectives.” Parole agent recommends maximum in-custody time. I don't want to write that." Immediately after meeting with Agent Lum, Christopher changed his mind and agreed to speak with the detectives without counsel present.

After Gonzalez was convicted of attempted murder, he appealed the court judgment. One of his contentions was that his parole agent violated Miranda by inducing his responses to questions after he had invoked his right to remain silent.

The Court of Appeals indicated in pertinent part: “If the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. . . .'

If you believe that your constitutional rights were violated during or after your arrest you need to contact the experienced criminal defense lawyers at Wallin & Klarich. Our law firm can help determine how to properly protect your legal rights and file the correct motions to ask the court to suppress evidence against you. If successful this could lead to your case being dismissed. Call us at (888) 280-6839 for a free phone consultation or visit us at www.wklaw.com. With offices throughout the Los Angeles, San Bernardino, Riverside, Ventura, San Diego and Orange Counties we are available wherever you happen to live. We will be there when you call.

Many people who are accused of a crime ask our law firm if they can have their charges dismissed because the police didn’t advise them of their “Miranda rights”. The answer in most cases is no.

The “Miranda warnings” must be given by the police to a suspect who is in “custody” prior to the police questioning them about their possible involvement in criminal activity. The police are very clever as to how they get around the requirement to issue Miranda warnings while still finding a way to obtain statements from those accused of crimes.

The police will often call a possible suspect on the phone and speak to them. They do not have to read you Miranda rights over a phone conversation because you are not “in custody”. This means if you make the very bad mistake to speak to the police on the phone those statements can be used against you in a court of law.

The police will often come to your house and ask to speak to you in your home. They will tell you that you are not under arrest and then they will ask to speak to you. Anything you say to them in your home when you are not “under arrest” or “in custody” will likely be admissible against you court.

Finally, the police may have you come to the police station to speak to them. However, before questioning you they will tell you that you are “free to leave” anytime you wish. You might be in a small interrogation room but if the officers tell you that you are not under arrest and are free to go then they do not have to read you your Miranda rights.

In other cases, the police will arrest you for a crime and then they will take you into jail. They may decide not to read you any Miranda rights because they don’t question you. If they don’t question you then they do not have to read you your “Miranda rights”.

Finally, even if the police do question you when you are in custody and they violate your Miranda rights, your “remedy” is to ask the court to not allow your statements in evidence against you. In most cases this does not mean that the case has to be dismissed if the prosecution has sufficient other evidence that is unrelated to your statements to convince a jury of your guilt.

So the next time you are speaking to someone and they ask you if they can get their charges dismissed because they were not read their Miranda rights, the answer is likely NO. The most important thing you should learn from this blog is NEVER EVER EVER speak to the police. Not on the phone. Not in your home. Not in a police station. NEVER SPEAK TO THE POLICE. If you follow this simple rule you will stand a much better chance of prevailing in your criminal case.

Wallin & Klarich criminal defense lawyers have been defending clients for over 30 years. If you feel that your rights have been violated and you have a pending criminal case call us now, even if you already have an attorney. Call us at 888-280-6839. Your call to our law firm can be the difference between jail and freedom. We will be there when you call.

The case before the Untied States Supreme Court dealt with whether a 13-year-old boy should have been notified of his “Miranda” rights. Including telling him he need not answer questions before being questioned by police officers. The boy was suspected of committing several burglaries. After first denying any involvement, the minor admitted breaking into several homes and stealing items.

The Untied States Supreme Court’s decision in the Miranda case established that suspects in custody must be advised of various rights, including the right to remain silent before police officers can begin questioning. If Miranda warnings are not given, any statements that the suspect makes to law enforcement may be excluded from evidence.

In California, burglary is codified under Penal Code Section 459. It states in pertinent part that “every person who enters any house… with intent to commit… any felony is guilty of burglary.” Residential burglary is a felony in Califronia, and may result in a strike, if convicted. The punishment for residential burglary in California is up to six years in prison.

If you or a loved one has been arrested, it is imperative you contact our firm. Hiring an experienced criminal defense law firm is the best way to ensure you keep your freedom. The attorneys at Wallin & Klarich have been helping people for over 30 years.

Please feel free to contact Wallin & Klarich to discuss your case. You can reach us 24 hours a day, 7 days a week at 877-466-5245 or go to our website at www.wklaw.com for more information.

Once a vehicle stop has been made and a DUI investigation has commenced, the issue arises as to when a DUI suspect is “in custody” for purposes of the landmark case Miranda v. Arizona. The Miranda Court repeatedly made clear that “by custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

For purposes of Miranda, it would seem clear that a motorist has been deprived of his or her freedom of action in a significant way, and thus is in custody, when a police officer conducts an investigation. DUI investigations include (a) pulling the motorist over, (b) seizing the motorist’s driver’s license and registration, (c) questioning the motorist, (d) ordering the motorist to exit the vehicle, and (e) demanding that the motorist remain outside the vehicle and perform field sobriety tests, and so on. Nonetheless, the Supreme Court has held that in the absence of extraordinary circumstances, such a detention does not constitute custodial interrogation, and thus is not protected by the Fifth Amendment and Miranda.

In order to make sure that your rights are accurately and aggressively defended after being charged with DUI in Southern California, you should contact the experienced Southern California criminal defense law firm of Wallin & Klarich. Our attorneys have been helping those accused of crimes for more than 30 years. Wallin & Klarich has the legal resources and knowledge to assist you in obtaining a successful outcome. Call Wallin & Klarich today at 888-280-6839 or visit www.wklaw.com to find out more about how we can help.

The simple answer is because there are some cops that will violate your rights because they refuse to follow the law. However, other police officers will violate your rights because they know that the conservative majority on the United States Supreme Court will likely support their conduct. Let me give you just one quick example of how recent court decisions have given the police more power to violate your rights when you are stopped or arrested.

Many years ago the US Supreme Court decided People vs. Miranda and in that decision the court made it clear that before law enforcement could question you they had to read you your "right to remain silent and right to a lawyer". You had the right to tell the officers you didn't want to speak to them. However, over the past two decades the Miranda decision has lost most of its legal impact due to the more conservative current Supreme Court wiping away many of the protections of Miranda.

The more recent Miranda rulings state that unless you are 100% perfectly clear that you want a lawyer, then Miranda doesn't protect you. Case after case has come down on the side of law enforcement in situations where a "reasonable person" would clearly see that the suspect was asking for a lawyer but the courts have said, 'Sorry, the admission or confession comes in, because the accused was not “clear enough'.

Even if your Miranda rights are violated, recent court decisions have held that if you choose to testify the statements you made to the police (after they violated your Miranda rights) are still admissible in court. What this means is that police officers are encouraged to violate your Miranda rights to obtain admissions or confessions because they know that this will limit your options at trial.

The bottom line when dealing with law enforcement is to never waive your rights and never speak to them. You have a legal obligation to provide them with your name and identifying information, such as your drivers license. After that, you have no legal obligation to speak to police officers. At Wallin and Klarich, for over thirty years we have been urging our clients to be smart and to 'keep their mouths' shut when asked any questions by law enforcement. In most interactions with the police there is no tape recorder being used. This means if you speak to the police the police will prepare a report and will detail what 'they heard you say'. In many cases what the police report you told them IS NOT WHAT YOU TOLD THEM and almost always ends up implicating you in some sort of unlawful conduct. The downside of following this advise is that often the police officer will be upset with you and may choose to arrest you. However, in the long run you are MUCH BETTER OFF by not speaking to a police officer and when and if you are read your Miranda rights very clearly repeat over and over you do not wish to waive your rights and you will not speak to them without your lawyer present. In fact after saying that, say nothing else at all.

Of course, the next step is you may be arrested and you will be given the legal right to make certain phone calls within a short time after your arrest. You should make the first call to Wallin and Klarich at 877-466-5245 so we can begin to help you. Please remember that even if you are arrested, in the long run you will almost always help your case by refusing to speak to law enforcement about the facts of the case.

If you or a loved one has been charged with a crime, it is imperative that you contact our criminal defense attorneys at Wallin and Klarich. Wallin & Klarich will help protect your rights and find the best defense strategy for your case.　 For over 30 years, our attorneys have handled many types of these cases with exceptional results. Please call us at (877) 466-5245 or visit our website at www.wklaw.com. We will be there when you call.

There are several instances where an individual may be thinking, “They didn’t read me my rights: my case should get thrown out, right?”

One of the most misunderstood concepts in Southern California criminal law revolves around the “Miranda Rights.”

Most people have heard them all before:

1. You have the right to remain silent.


2. Anything you say can be used against you.


3. You have the right to an attorney present during questioning.


4. If you can’t afford an attorney, an attorney will be appointed to you at no cost to you.

While the rights are easy enough to understand, the application of the Miranda rule is less clear.

Basically, the purpose of the rule is to keep out any statements a defendant makes under very specific circumstances.

In order for Miranda to apply:

• a. The defendant must be in custody or the functional equivalent, AND


• b. There must be an interrogation by a government agent.

Continue reading "Miranda Rights - How Do They Work?" »