When Do the Police Have to Read You Your Rights?
December 29, 2015
When I interview a new client, one of the first things that they usually tell me is that the police did not read them their rights. Many people have the incorrect idea that if the police do not read them their rights, then the case must be dismissed. Unfortunately, this is not correct.
The term “reading your rights” refers to the Miranda Warnings which the police are required to give to anyone who is under arrest and being questioned. The key to this is that a person must be under arrest or in custody before this requirement kicks in.
Take the situation where the police pull over a motorist or have an encounter with a person when they are not under arrest. In such a situation, they are not required to read the person their rights before they ask them any questions. However, if the person is in custody and has been arrested, then the police must read them their rights before they ask them any questions. Failure to do so will result in suppression or throwing out of the statement made in response to the questioning.
Many times, a question will arise as to whether or not a person is actually under arrest. Police officers will often take a person out of their vehicle, hand-cuff them, place them in their cruiser, and yet say they are not under arrest. Courts have held that a person in that situation is taken into custody and therefore the officer would have to read them their rights before asking any questions. One of the things that a person can do if they are stopped by the police is to ask if they are free to leave. If the officer tells the person “no,” then an argument could be made that they are already in custody. There are many types of statements that a person can make that can hurt their future case in court. Some are very minor things which don’t seem like a big deal at the time but could later prove to be very important to the case. When a person is stopped by the police or being questioned by the police in any way, it is always a good idea to exercise your Constitutional Rights and inform them that you do not want to make any statements until you have had a chance to speak to your lawyer. After you have had the chance to go over the situation with an attorney, you can always make a statement later if you and your attorney decide that this is a good idea.