Tampa's Miranda note irks lawyers

Local defense lawyers are angry over a Tampa Police Department memorandum outlining the department's approach when reading people Miranda rights.

The memo, written by Tampa police legal adviser Kirby Rainsberger and obtained by The Tampa Tribune and News Channel 8, states that in certain situations where a suspect needs to be questioned, only the first line, "You have the right to remain silent and anything you say can be used against you in court," is good enough.

The second line, which informs a person of his or her right to an attorney, can wait until the suspect is willing to talk, the memo states.

Although police say this is nothing new, Tampa-based defense lawyer DeeAnn Athan said the memo urges officers to be tricky by splitting up the Miranda warnings.

"They are trying to usurp people's constitutional rights," Athan said. "It's not a game and it's not a technicality. These are rights under the Constitution every person has."

The method outlined in the June 30 memo gives officers several opportunities to get information from a person in custody.

If officers "routinely blurt out Miranda warnings for no particular reason and the suspect equally thoughtlessly says he'll take the free lawyer, the latent investigators have just lost their best opportunity to help resolve the case, and perhaps many others," Rainsberger writes.

Once a person requests an attorney, law enforcement can no longer question them unless his or her attorney is present.

Before questioning a suspect, once the first Miranda line is read, "stop right there," Rainsberger says. "Ask the suspect if he wants to talk about the matter now. If he says 'No,' go no further with the rights advisement of the interview."

An amended version of the memo was sent out on July 28 and includes suggestions on when officers can approach a suspect without his attorney present and try questioning him again. According to the amended version, the conditions are:

•The Miranda warnings must be given at the outset.

•There must have been a sufficient lapse of time between the invocation of the right to remain silent and the resumption of questioning; two hours is enough, perhaps less.

•The second round of questioning should be at a different location/setting.

•The second round of questioning must concern different crime(s).

Assistant Public Defender John Skye said Tampa police's Miranda procedures have two problems.

"First of all, that's not what you're supposed to be doing," Skye said. "You're supposed to be telling people of their constitutional rights, not trying to trick them. The other thing is if you succeed and the whole truth comes out, then it seems much more likely to me that the statement would be suppressed."

Tampa police disagree and say how they recite Miranda rights is nothing new.

"This is a tool to keep criminals off the street," police spokeswoman Andrea Davis said. Officers don't have to read a suspect his or her Miranda rights if they have probable cause to make an arrest, she said.

Rainsberger wrote the memo in response to a recent U.S. Supreme Court decision about interrogating suspects in custody.

What actually changed in the wake of the Supreme Court's decision in May "is to allow officers to contact a defendant post-arraignment about the crime for which he has already been charged."