Miranda rights and questioning: when it applies – part 2 of a series

In part one, I discussed what the law of the 1966 Miranda decision requires when a person is being questioned by police.  In this part, I’ll explain when the police are even required to read your rights.

First – Custody

The whole decision of the Miranda case dealt with custodial interrogation.  That means that the police are required to give the Miranda warnings when a person is in custody before they can get a statement from them.

What is “custody”?

Under case law, “custody” is defined as a formal arrest or the functional equivalent of an arrest.  Obviously, if you have been told you’re under arrest, you are “in custody” for the purpose of the Miranda rights.  If the police want to question you after you’ve been arrested, they must advise you of your rights.  But other situations can trigger the Miranda rights as well – even when you haven’t been formally arrested.

“Custody” without being arrested

First, a quick overview of the categories of police interaction:

  • Consensual encounter:  The police can engage in a conversation with anyone as long as that person is free to leave and an ordinary person would feel free to leave.
  • Detention: A person is temporarily not free to leave and has been detained based on reasonable suspicion of criminal activity
  • Arrest:  A person has been taken into custody based on probable cause to believe they’ve committed a crime.

It is only during that third category – an arrest – that automatically means they must advise you of your rights before questioning.  During a consensual encounter or detention, case law has said that you’re not “in custody” and therefore the Miranda rights don’t apply.  Here are some examples:

Let’s say the police walk up to a person just standing on the street corner.  Assuming they don’t do anything to indicate the person is not free to go, they could ask if that person had any drugs on them.  If the person says “yes” – it’s absolutely incriminating, but not a Miranda violation because the person wasn’t “in custody”.

Similarly, if you were stopped for speeding and the officer smelled alcohol, you can bet the first question he’d ask would be, “Have you been drinking?”  If you answer “yes”, you’ve just incriminated yourself.  However, because you are only “detained” for the speeding violation, you’re not “in custody” and Miranda warnings are not required.

A detention can be “custody”

In some circumstances, even during a detention, you can be “in custody” for Miranda purposes.  A detention is supposed to be a temporary situation – just long enough for the police to deal with the reason you were detained.  Either they can develop enough evidence to have probable cause to arrest or they will determine there’s not enough and let you go.  If that detention is prolonged (an unreasonable length of time to deal with the reason for the detention), it can turn into the equivalent of custody and Miranda warnings would be required or the statement would be inadmissible.

If the detention rises to a level beyond a temporary detention in its intensity, that too can be “custody” for Miranda purposes.  For example, although a person could be detained at gunpoint initially, to continue to hold them at gunpoint for an extended period of time, surrounding them by multiple officers or other circumstances beyond that necessary to detain someone could make the detention into “custody.”  Transporting a detained individual to another location without their consent or emergency circumstances would also elevate an ordinary detention into custody.

When are you NOT in custody?

When the circumstances surrounding your police interaction are less than I talked about above, it is likely to be seen as non custody.  One of the biggest factors in determining this can be your consent.  The Miranda decision primarily focused on the police-dominated and coercive atmosphere of the police station.  But if you agree to go with the police for an interview or if you show up for an interview, you’re there with consent.  If the police are savvy, they’ll give you a Beheler admonition [from the US Supreme court decision in California v. Beheler (1983) 463 U.S. 1121].  A Beheler admonition is when they advise you that although you may be in the police station behind closed (or even locked) doors, you’re free to go at any time.  If you agree to stay, that takes away (in the court’s mind) any coercive nature of being in the police station.

Custody for Miranda also means just that – you’re in the custody of the police.  You can’t be in custody if they call you on the phone.  No matter how intimidating or heated telephonic questioning may be, you’re free to simply hang up.

So – if the police are required to read you your rights, they must do so or any custodial statement is subject to being excluded from the prosecution’s case.  If you said something in a statement taken in violation of Miranda that leads them to pieces of physical evidence (drugs, a gun, stolen property, etc.), that too can potentially be excluded from evidence.


Next up – part 3 in the series – waiving or invoking your rights.


Joe Dane, Orange County Criminal Defense Attorney



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