From watching crime dramas and movies, most people have heard the Miranda rights read countless times. You have probably heard some variation of the following:
“You have the right to remain silent. Anything you say can and will be used against you in court.
You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”
Law enforcement officers are required to inform suspects of their Miranda rights before beginning any custodial interrogation. Courts have debated the precise definition of this term as many fact patterns present interesting questions as to whether a suspect is in custody or whether law enforcement is actually interrogating a suspect.
In general, a person is in custody if the person is under arrest or if a reasonable person would believe that his/her movements have been restricted in the same way as a formal arrest. An interrogation refers to a question or statement by a law enforcement official (or someone acting at the direction of a law enforcement official) that is designed to elicit an incriminating response.
While law enforcement officials must inform suspects of their right to remain silent and right to counsel, there is no requirement to inform suspects of the potential impact of this decision beyond the fact that any incriminating statements can be used against the suspect. Thus, it is important to go beyond Miranda and analyze the potential impact of an individual’s decision whether to waive his/her rights and speak with police.
When law enforcement officials interview the primary target of an investigation, there is an obvious desire to obtain a confession. The law enforcement officials conducting the interrogation may tell the suspect of the importance of cooperation and that this moment is the suspect’s only chance to explain what happened. The officials may also inform the suspect that, while law enforcement cannot guarantee an outcome or make a plea deal, the suspect’s cooperation can only help down the road. Law enforcement officials can also promise to tell the prosecutor about the nature of the suspect’s cooperation.
While cooperation can certainly help a suspect (future defendant) mitigate his/her ultimate sentence, the statements made during an initial interview could have a major impact on one’s ultimate sentence. To illustrate this point, let’s consider a hypothetical federal drug case.
Hypothetical Scenario
Assume the following: A Drug Enforcement Administration (DEA) agent initiated an investigation against Suspect A, a suspected drug dealer in his community. The agent made three controlled purchases of cocaine base (crack cocaine) from Suspect A that were video-recorded by the DEA. Each purchase consisted of 5 grams of crack cocaine (15 grams total).
Before arresting Suspect A, the DEA agent approached Suspect A, informed Suspect A about the controlled purchases and the recordings, and offered Suspect A the chance to talk. Suspect A agreed to the interview and Suspect A rode to the station with the agent. Once at the station, the agent read Suspect A his Miranda rights and strongly encouraged Suspect A to cooperate. The agent noted that if Suspect A were to cooperate the Government might file a substantial assistance motion, which could knock some time off Suspect A’s ultimate sentence. Suspect A agreed to talk, and the agent asked Suspect A to detail all of his prior drug trafficking activities, including his supply sources and his customers.
Let’s also assume that during the interview Suspect A said that he purchased 10 grams of crack cocaine per week from Supply Source B for the last two years to distribute to each of his customers that he named for the agent. Suspect A was cooperative, subsequently pled guilty, and the information provided by Suspect A led to the successful prosecution of Supply Source B. At sentencing, the Government filed a substantial assistance motion and, at the recommendation of the prosecutor, the judge agreed to reduce Suspect A’s sentence by 50%. At this point, we would think that things worked out well for Suspect A, correct? Not necessarily.
Federal Sentencing
In federal drug cases, the United States Probation Office prepares a Presentence Report in which a United States Probation Officer determines an offender’s drug weight and calculates the corresponding base offense level. The base offense level and an offender’s criminal history level then determine the offender’s advisory sentencing guideline range.
The drug weight determination not only includes the quantity of drugs sold by the offender in the case charged (here, 15 grams) but also the quantity of drugs trafficked by the offender as part of any relevant conduct (related, but uncharged, conduct). In this hypothetical example, Suspect A’s drug weight would not have been 15 grams; instead, it would have been 1,040 grams of crack cocaine (10 grams purchased per week for 2 years = 10 grams x 104 weeks = 1,040 grams).
The difference in drug weight would likely have had a significant impact on Suspect A’s base offense level. Under the current United States Sentencing Guidelines, had Suspect A’s drug weight been 15 grams of crack cocaine, his base offense level would have been 18; instead, a drug weight of 1,040 grams of crack cocaine corresponds to a base offense level of 32.
Now, let’s consider the impact on Suspect A’s advisory sentencing guideline range. Assume Suspect A was a Record Level III and that in each scenario Suspect A’s base offense level was reduced by 3 levels for acceptance of responsibility. With a base offense level of 15 (Level 18 – 3), Suspect A’s advisory guideline range would have been 24-30 months. Instead, with a base offense level of 29 (Level 32 – 3), the advisory guideline range would have been 108-135 months. With a 50% reduction in sentence, Suspect A might have received a 12-month sentence in the first scenario but a 54-month sentence in the second scenario.
What’s the Point?
In federal court, Suspect A’s original statement to the DEA agent would have been considered unprotected. It was not made pursuant to a plea agreement or a proffer agreement with the Government. Under this hypothetical example, law enforcement did not do anything against the law nor did the agent violate Miranda. This example shows that, under Miranda, a law enforcement official is not required to review the potential impact or effect of an individual’s statement made subsequent to a waiver of his or her Miranda rights.
Had Suspect A politely declined to speak with agents initially and instead agreed to cooperate with agents after consulting with an attorney and signing a plea or proffer agreement, then Suspect A’s admissions about prior drug trafficking activities could not have been used to calculate his total drug weight/base offense level. Suspect A could have received the benefit of cooperation without paying the price of a higher sentencing guideline range. When law enforcement is interested in a suspect’s information on a bigger target, it should not matter whether a suspect provides the information initially or after consultation with an attorney. However, the potential impact on the suspect’s sentence could be significant.
Thus, it is important to know that the decision whether to waive Miranda rights and speak with law enforcement without an attorney at the outset of a case could have a lasting effect on a suspect. The Miranda warnings do not necessarily provide suspects with all the information necessary to make the decision of whether to answer a law enforcement official’s questions.
***NOTE: This information does not create an attorney/client relationship for a specific case nor does it constitute legal advice for any specific case or situation. It is for informational purposes only. With questions, please contact Weede Law, PLLC for a free initial consultation.