The Police Didn’t Read Me My Rights: Shouldn’t My Case Get Dropped?
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One of the most frequent complaints I hear from prospective clients during free consultations is that the police did not read them their rights.  The significance of any such omission may not be as serious as you would think.


There is no blanket rule requiring a police officer to read you your rights, or as they are known in legal terms, Miranda rights.  You are only entitled to a Miranda warning if you are in custody and subjected to an interrogation: custodial interrogation.  A person’s Miranda rights are violated when they are subjected to custodial interrogation without being advised of their rights.


To determine whether an individual is entitled to a Miranda warning, one must first consider whether they are legally in custody.  In making this evaluation, a court will consider the totality of the circumstances, and whether a degree of force typically associated with arrest is utilized by law enforcement.  In People v. Hull, the Colorado Supreme Court held the defendant to have been in custody where police entered defendant’s apartment with their weapons drawn, and handcuffed him, thereafter removing him from his home and interrogating him inside a police vehicle, while handcuffed, for twenty-five minutes.  In that case, the defendant was never told he could refuse to answer questions or leave the police vehicle; there was every reason for the defendant to believe that he would be arrested following police questioning.  Because of this, the Court determined that any and all incriminating statements obtained during this questioning were in violation of the defendant’s Miranda rights, and therefore, were appropriately suppressed by the trial court.


In contrast, a person who makes an incriminating statement while not in custody does face his incriminating statement being used in court.  One commonplace example would be an officer, after having pulled a subject over for some traffic violation, asking the driver whether he has had anything to drink.  At this point, the driver is not in custody.  However, if the officer places the individual in custody, and thereafter asks if he or she has been drinking, without reading that person his rights, that statement may be suppressed.


Of course, all conversations between a law enforcement officer and a potential suspect do not constitute interrogation.  Interrogation can be either express questioning or its functional equivalent.  The inquiry is whether the conduct or statements of the officers would be viewed as reasonably likely to elicit an incriminating response from the suspect.  Should the officers know the suspect to be susceptible to any particular form of persuasion, that would be a significant deciding factor in determining whether the statement constituted actual interrogation, thus triggering Miranda rights.
Remaining silent usually is the right choice; if you do not say anything, your statements cannot be misinterpreted or manipulated to imply wrongdoing.  Such misinterpretations or manipulations can be difficult to correct.