Most people are familiar with the recitation of rights that begins, “You have the right to remain silent.” This is the beginning of the famous (and essential) Miranda warnings, which police are required to deliver when they take someone into custody who they want to interrogate, before they can legally use the person’s answers against them in court.
One of the common things clients tell us is that, even though they were taken away in handcuffs, booked and charged, they were never read their rights by the police! People frequently wonder whether, because they did not hear those words, they were not actually arrested. (In New York, when you are fingerprinted and photographed on a criminal charge, you have been, by definition, arrested). Other times people assume that the police made a critical mistake by not reading those rights, and sometimes that is certainly true.
On TV, in movies, and elsewhere in popular culture, a police officer reading someone their Miranda rights is synonymous with arrest, leading many to suspect that you are only “arrested” when you hear the Miranda warnings. What most people don’t realize is that police only need to provide the Miranda warnings if police wish to subject someone to “custodial interrogation,” and want to later use statements from that interrogation against that person in court. Understanding this principle is essential to understanding what your rights are when speaking with police.
“Custodial interrogation” involves two important principles: custody and interrogation. Under New York law, custody is not defined by any bright line rule such as having been read your rights, having been placed in handcuffs, having been placed in a cop car, or having been seated in an interrogation room.
Instead, in New York, someone is in custody for Miranda purposes when a reasonable person, innocent of any offense but placed in the same circumstance would not have felt free to leave.
Of course, some situations are clear: a person is placed in a jail cell, the cell door closes and it is locked. That person does not feel free to leave and is unambiguously in custody. Being placed in handcuffs and locked into the back of a police car is almost always considered custody, but it may not be if it is only a temporary detainment at the roadside, for instance, and being done for officer safety. And it is easy to imagine scenarios that are harder to define.
For example, when pulled over by the police on the road, and while seated in your own car, most people do not feel free to leave and, in fact, they are not. However, they are usually not “in custody” for Miranda purposes at that point. In New York, upon reasonable suspicion that an offense has been committed, police may initiate a traffic stop and perform an investigative inquiry with the driver that involves briefly detaining the driver in their vehicle on the side of the road. Usually these brief detentions do not rise to the level of “custody” and, therefore, officers have no duty to advise the motorist that he or she has the right to remain silent. In these circumstances, officers can and often do ask questions and later use the driver’s answers against him or her in court. (“Have you been drinking tonight?” being one of the most common such questions.)
It is important to remember that your right to remain silent is not dependent on being given the Miranda warnings. You always have the right to remain silent – in your car at the roadside, if you’re at home and the police knock on your door, if police call you on the phone: at all times, anywhere, you have the right to remain silent in response to police questions. But many people forget that principle, and that is why people frequently make damaging admissions in response to police questioning. (“Yes, I’ve been drinking.” “Yes, there are drugs in the car.”)
The reason the Miranda warnings exist is because when people are faced with the powerful authority of law enforcement, they frequently forget their rights. It is easy to understand in the abstract the concept that, as United States citizens, the Constitution guarantees that we cannot be compelled to give evidence against ourselves, but our repeated experience at the Hacker Murphy law firm representing clients who were arrested and interrogated by police has shown that many people, when confronted by police, provide some of the worst evidence against themselves in the form of damaging admissions.
Once someone is in police custody – for instance in handcuffs back at the police station – and if the police want to ask questions of such a person, they must provide the person the Miranda warnings, and advise the person that they have the right to remain silent, that any statement they make may be used against them, that they have the right to have an attorney present at any questioning, and that if they cannot afford such an attorney, they have the right to have one provided free of charge.
Confusingly, many people hear these warnings, read a paper with them written out, and sign the paper and then waive, in writing and verbally, all of those important rights, and proceed to give damaging statements against themselves – statements without which, in many instances, they could never be successfully prosecuted!
Police have learned through years of experience that most people, when given even the most minor pressure of police authority, will waive their rights and tell on themselves and others. In fact, police frequently structure their interactions with suspects in order to extract a Miranda waiver and obtain an inculpatory statement (essentially a confession of criminal wrongdoing). When it is important in the investigation to get a statement from the suspect that he or she is guilty, police work hard to increase the likelihood that the target will talk, rather than assert their right to silence or to an attorney.
There are many cases when police do not seek to interrogate a suspect, and frequently such suspects are never advised of their right to silence. For example, if police pull over a vehicle occupied only by the driver and, pursuant to probable cause, search the vehicle and find contraband (like a gun or drugs), they do not need a statement from the driver to charge possession of the contraband. In New York, all they need is to find the contraband in the vehicle and, under our state’s law, it is possible to not only charge, but also to convict, the vehicle occupants on those facts alone. In our experience, under such circumstances, police frequently do not bother to interview such suspects, especially as it is possible that the suspect might give information that is inconsistent with guilt – it is not their vehicle, someone else was using it earlier, they did not know the contraband was in the vehicle, etc. These are the kind of arrests that often lead people to wonder why they were never Mirandized, but it is often simply because interrogation is not needed or wanted by police.
In conclusion, it is obviously difficulty to fully understand the intricacies of the Miranda rule and its application, and this article is not intended to fully explain all the ins and outs. Rather, it is to illustrate two things: 1. You always have the right to remain silent, and 2. You always have the right to consult with an attorney and anytime you are being asked questions by police, you should call an attorney before giving any answers.