Most people are familiar with Miranda rights: "You have the right to remain silent. Anything you say..." But many of my clients are quick to tell me during intake that the arresting officer never read them their rights. Unfortunately, in almost all cases police are not legally required to Mirandize a person, and often they do not.
Miranda warnings, according to the United States Supreme Court, are only required for custodial interrogations. This means that for an officer to be required to read a person their Miranda rights, that person must be both 1) in custody, and 2) being asked incriminating questions.
If a person is not in custody (“custody” being a legal concept that I will attempt to loosely define below), the officer isn’t required to Mirandize them regardless of how incriminating the questions they are asking may be.
Example: Officer, driving down your street on regular patrol – “Is that a dead body in that trash can?”
You, pushing trash can to road with a corpse poking out – “Yup, killed ‘em myself!”
No Miranda violation, though obviously quite an incriminating question.
Likewise, if a person is in custody but is not being asked incriminating questions, no Miranda violation exists.
Example: Officer, driving you to jail – “Sure is a warm winter we’re having this year, isn’t it?”
You, cuffed and stuffed in the back seat – “Sure is. I’m sweatin’ my ass off back here.”
No Miranda violation, though obviously, you are in custody.
For Miranda to apply, you have to have both elements in play. But most people don’t understand what “custody” means, and the courts sure as hell haven’t done much to clear it up. Generally speaking, “custody” is defined as detention by a law enforcement officer that would make a reasonable person feel that they are not free to leave (again, this is a loose definition, so don’t take it as the gospel, as all kinds of specifics about any particular case can affect this working definition). However, courts have held that roadside investigations (meaning questions asked on the side of the road after a traffic stop) are not subject to Miranda because the person is not in custody. I don’t know about you, but I’ve never felt like I could tell an officer who pulled me over “this has been fun, but I think I’m going to leave now.” Try it and see what happens.
However, there are lots of little facts that can change a roadside investigation into a custodial interrogation that requires Miranda warnings. So the long and short of it is don’t be surprised if you don’t hear those famous words, but nevertheless, talk to a qualified defense attorney, because one missing piece of the puzzle can make all the difference. Oh, one last thing: DON'T TALK!