If I told an investigator that I wanted a lawyer but he kept badgering me so I finally gave a statement against myself, can I fix this?

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If I told an investigator that I wanted a lawyer but he kept badgering me so I finally gave a statement against myself, can I fix this?

Asked on June 26, 2012 under Criminal Law, Wisconsin


Russ Pietryga / Pietryga Law Office

Answered 11 years ago | Contributor

It sounds like you want to know if the statements you made to the police can be suppressed.  You have indicated that you asked for a lawyer.  Therefore, I am making the assumption that your statement was made in violation of your Miranda Rights. 




 Miranda Warnings protect people from being compelled in any criminal case to be a witness against themselves.[1] The Miranda Warnings/Rights are: (1) You have the right to remain silent; (2) Anything you say can and will be used against you in court; (3) You have the right to consult with an attorney and have an attorney present during questioning; and (4) If you cannot afford an attorney, one will be provided to you before questioning at no cost to you.[2]   


   However, many people misunderstand when a peace officer is required to give them Miranda Warnings.  A suspect is only accorded Miranda protections during a custodial interrogation.  Both elements (i.e., custody and interrogation) must be present before the peace officer is required to give Miranda Warnings.  That means peace officers are not required to give Miranda Warnings when they are still in the investigatory stage.  For instance, a peace officer is not required to give Miranda Warnings when he asks a person suspected of driving under the influence if they have been drinking or asks them to conduct field sobriety tests.  This is because the peace officer is still trying to ascertain whether a crime has been committed (i.e., The Investigatory Stage).


            That said, in Utah, a person is in custody when an individual’s freedom of action is curtailed to a degree associated with a formal arrest.  The inquiry is objective, and a person may understand himself to be in custody based either on physical evidence or on the nature of the peace officer’s instructions and questions.  Utah Courts have set out a five-factor test to determine when a person is in custody for the purpose of Miranda protections. They are: (1) the site of the interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; (4) the length and form of the interrogation; and (5) whether the accused came to the place of interrogation freely and willingly.


            In Utah, after it has been determined that the accused was in custody, the court must decide whether the accused incriminating statement was the product of interrogation.  Interrogation is either express questioning by the peace officers or its functional equivalent. And, it incorporates any words or actions on the part of the peace officers that they should have known were reasonably likely to elicit an incriminating response.


            There are many Utah cases that have interpreted custodial interrogation and when Miranda Warnings are required to be given by peace officers.  In Salt Lake City v. Carner, 664 P.2d 1168 (1983) and Salt Lake City v. Gallegos, 2009 UT 42, the Utah Supreme Court explains the circumstances in which a peace officer is required to give Miranda Warnings.


            In Carner, the Utah Supreme Court held that the defendant was not in custody, or otherwise significantly deprived of his freedom.  Nor did custody compel the defendant to take field sobriety tests. Defendant was requested and he agreed, both verbally and by his attempts at compliance, to perform the field sobriety tests. Therefore, the defendant was not compelled to give evidence against himself.


            The relevant facts in Carner are as follows: The peace officer observed defendant’s vehicle cross the center line of the street three separate times while traveling approximately one block; After defendant’s vehicle made a sweeping left turn, the peace officer pulled defendant over; Upon approaching defendant’s vehicle, the peace officer smelled an odor of alcohol coming from the vehicle’s interior; While speaking with the defendant, the peace officer noticed that defendant’s speech was slurred; The peace officer asked the defendant to get out of the vehicle and requested that defendant perform field sobriety tests; The defendant verbally agreed to perform the field sobriety tests; The peace officer instructed defendant on how to perform the heel-to-toe test, the finger count test, the hand slap test, and the balance test; the defendant attempted to comply with the field sobriety tests; However, the defendant was unable to effectively perform any of the field sobriety tests; and, Based upon the peace officer’s observations of the driving pattern, field sobriety tests, the odor, and defendant’s speech, the peace officer formed the opinion that the defendant was intoxicated to the point that it impaired his ability to drive and arrested him for driving under the influence.


            The Court reasoned that field sobriety tests were requested and taken on a public street.  Moreover, no indicia of arrest such as readied handcuffs, locked doors, or draw guns were present when the peace officer asked the defendant to perform the field sobriety tests.  Also, the field sobriety tests only took minutes, a relatively short period of time.  These factors do not suggest a custodial setting.


            Additionally, the peace officer was still in the investigatory stage when he asked the defendant to perform the field sobriety tests. If the defendant’s ability to operate a vehicle had not been impaired or was impaired for a reason other than being under the influence, there may have been no crime committed.  Therefore, when the peace officer requested that the defendant take the field sobriety tests, he was continuing to ascertain whether a crime had been committed at all. As soon as the peace officer determined that defendant’s driving appeared to be impaired due to alcohol, he did arrest him. Until that time the peace officer was entitled to investigate circumstances at the scene without giving the defendant a Miranda Warning.


            In Gallegos, the Utah Supreme Court held that the defendant was in custody at the time he made statements to the peace officer, and that the defendant was interrogated for the purposes of Miranda.


            The relevant facts in Gallegos are as follows:  Defendant engaged in an online chat with an undercover peace officer; The peace officer represented to the defendant that she was underage; Despite this, defendant agreed to meet with the undercover peace officer to engage in a sexual relationship; After obtaining a photograph of defendant six peace officers went to defendant’s home; The defendant’s wife informed the peace officers that defendant had moved out and gave them his current address; Defendant’s wife told defendant that the peace officer’s were looking for him; Defendant contacted the peace officer’s and agreed to meet them at the clubhouse of his apartment complex; When defendant arrived at the clubhouse the peace officers directed him where to par, and an SUV and a police vehicle pulled in directly behind him with their lights flashing; The peace officers then instructed defendant to get out of his car while keeping his hands visible, and began to surround him; Some of the peace officers had police vests on, while others simply wore badges around their necks; After the peace officers patted defendant down for weapons, defendant placed his car keys and other items inside the car; The peace officers then asked defendant for his computer;  Defendant told the peace officers that he had thrown the computer out at a friend’s garbage can; and at this point, a peace officer read defendant his Miranda rights, and defendant invoked his right to remain silent and his right to an attorney.


            As to custody, the Court reasoned that places that are confined or isolated are more likely to indicate custody than those that are public and open.  In this case, defendant requested to meet the peace officers at the clubhouse of his apartment building and that he went voluntarily.  At first blush, this suggests a public environment, which weighs against a finding of custody.  However, the peace officers pulled their cars directly behind the defendant with the flashing lights on, the location transformed from one of a public and open nature to one of confinement.  Moreover, while the apartment clubhouse may be a public place during the day, at four o’clock in the morning it takes on an isolated character.


            The second factor, the focus of the investigation, clearly weighs in favor of a finding of custody.  Defendant had spoken to his wife, who informed him that peace officers in SWAT gear had been at the apartment looking for him. Therefore, the defendant was clearly aware that the investigation focused on him.


            The third factor, the presence of indicia of arrest, also weighs in favor of a finding of custody.  While no guns were drawn, defendant was surrounded by “six to seven” peace officers, some of whom wore police vests, while others wore badges.  Defendant’s vehicle was surrounded by police cars with their lights on, and he was frisked and asked to remove the contents of his pockets, including his car keys.  Moreover, while not physically restrained, the placement of the police cars and the removal of defendant’s car keys made any movement practically impossible.


            Finally, as to the length of the interrogation, this factor weighs against a finding of custody.  Defendant only asked a few questions about the whereabouts of his computer, and then quickly placed defendant under arrest.  On balance, the Utah Supreme Court concluded that defendant was in custody for the purposes of Miranda protections because a reasonable person in defendant’s position would not have felt free to leave.


            As to interrogation, the Court reasoned that after the custody determination is made, the courts must next decide “whether the incriminating statement was the product of interrogation.” Here, the peace officer’s initiated direct questioning abut the key piece of evidence the peace officers would eventually need—defendant’s computer.  The peace officer’s statements were not questions normally attendant to arrest and custody, nor were they simply agreements with defendant’s voluntary statements.  Instead, the peace officer should have known that questioning defendant abut the whereabouts of the computer would likely elicit an incriminating response from him.  The Utah Supreme Court concluded that defendant was also interrogated for the purpose Miranda analysis.


[1] U.S. Constitution, Fifth Amendment and Article 1, Section 12 of the Utah Constitution.

[2] Miranda v. Arizona, 384 U.S. 436 (1996) and State v. Levin, 144 P.3d 1096 (2006)


Hope this helps.


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