Police didn’t read me my rights when I was arrested so my case should be dismissed, right?

Brian Fishman
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Brian M. Fishman is a Philadelphia trial attorney whose main practice area is criminal defense. He represents individuals in Philadelphia and the surrounding counties in state, federal and juvenile court. He also handles personal injury claims including car accidents, SEPTA accidents, construction site accidents, slip & fall, medical malpractice and catastrophic loss as well as civil rights violations for excessive force by police, corrections officers and other government officials and other violations of one's constitutional protections. Full Bio


Police didn’t read me my rights when I was arrested so my case should be dismissed, right?


Wrong. If only it were that simple. I cannot tell you how many times I am asked this question. The general belief is that police must read someone their Miranda warnings upon arrest. I assume the theory is that if one’s rights were violated by the failure to be read their rights, then the arrest should be invalid and any subsequent charges should be thrown out of court. Unfortunately, this is a flawed premise and not the law. Despite what many believe, the police have no obligation to read Miranda warnings upon arrest. The only time police or detectives have to read you your rights is if they are seeking to conduct a “custodial interrogation”. So, what is a custodial interrogation? Well, before answering that question, let’s briefly discuss Miranda warnings.

You Have The Right To Remain Silent…
Miranda warnings are designed to protect one against their 5th Amendment right against self-incrimination and their 6th Amendment right to counsel. But, we all watch too much television and believe that once placed in handcuffs, the police, while gently guiding our head into their cruiser, must begin reading us our Miranda rights. And, if they fail to do so, they are violating our constitutional rights. On TV, when arrested, we generally hear the following, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney before speaking to the police and to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you free of charge.”

That is in fact the law. But, if you read those words carefully, the police are merely warning that you do not have to say anything to them but if you do, you run the risk of whatever you say being introduced against you at trial. So, if you say nothing, you have nothing to worry about. And, that is exactly what you should do if arrested by police. Do…Not…Talk. Don’t talk to the officers that arrest you. Don’t talk to the cops driving you to the station, don’t talk to the officers who are processing you, don’t speak with the cop who fingerprints and photographs you and certainly do not talk to any detectives. Police do have the right to ask you questions about your biographical background and you should be cooperative with police and answer the questions concerning your name, date of birth, Social Security number, address, employer, family, etc. However, you should in no way discuss the incident that led to your arrest. Despite what you may believe, I assure you that you are not going to talk yourself out of an arrest or being charged. You can and will only create more evidence that can be used against you later thereby making my job of defending you more difficult.

A Custodial Interrogation
As stated above, police need only provide you with your Miranda Warnings if they seek to conduct a custodial interrogation. Therefore, you must be both in custody and under interrogation in order to trigger the requirement that your rights be read to you. It is important therefore to define both “custody” and “interrogation”. They may seem to be clear words that need no definition, but they are interpreted in the law differently than their general connotation.

If you have been arrested, handcuffed and are in the police station, clearly you are in police custody. But, custody is defined more broadly for these purposes. Generally, if an individual’s freedom of movement is curtailed by law enforcement such that an objective person does not believe they are free to leave, they are considered to be in custody. However, there are some limitations on this more broad reading of “custody”. While a motorist stopped by police during a roadside investigation or an individual briefly detained on the street may not feel they are free to leave, police do have the right to ask some basic limited questions of those individuals as they are not considered to be under arrest and therefore in custody. But, aside from those limited exceptions, if one feels that they are not free to leave based on police commands or actions, it is the functional equivalent of an arrest and the person is deemed to be in custody. It is important to understand that just because you are in a police station does not mean that you are under arrest. If you choose to voluntarily show up at the police station to answer questions or you are there but are told that you are free to leave at any time, you are not considered to be under arrest or in custody and your Miranda warnings need not be read.

Custodial Interrogation is defined as questioning by law enforcement where police know or should know that their questions are likely to lead to incriminating statements. If you are in handcuffs in the back of a police car and shout out, “I only pointed the gun at him, I never shot it” or “I didn’t sell anyone drugs, I just split the money with my buddy who was selling”, you are not being questioned or interrogated and that “blurt out” is admissible in court as you volunteered the information. The police never asked you a question that led to your statement. On the other hand, police may not ask you a specific question but may present you with a piece of incriminating evidence and state, “How do you explain this?” Although that may not be a specific question, it is considered interrogation based on the police officers actions and the intent to invoke an incriminating response.

Examples of a Custodial Interrogation
While it may seem obvious, the lines often blur when discussing what is considered “custody” and what counts as “interrogation”. Below are some examples of a custodial interrogation and therefore Miranda Warnings would be required or the statement could be deemed inadmissible as a violation of your rights:

  • If you are at the police station following a formal arrest on the street and a detective brings you upstairs to an interview room and starts asking you questions about the very incident you were arrested for.
  • If you are in the back of a police car in handcuffs, just having been arrested by police for burglary and one officer turns around and says, “Now, tell me what you did with all of the jewelry that you took from the house?”
  • You are sitting in your home after a police raid and placed under arrest for selling drugs and police state, “Tells us where the drugs and guns are or we’re going to tear this whole house apart.”
  • Police stop you on the street after they see you make a transaction with another, they pat you down, ask you for your name and identification and then follow up with “Where do you keep your drug stash?”

Examples Where Miranda Warnings are Not Required

  • If you are pulled over by police, ordered to provide license, registration and insurance and police indicate that they smell an odor of alcohol on your breath and ask, “Are you willing to submit to field sobriety tests?”
  • If you are taken down to the station after being stopped on suspicion of DUI and while an officer is explaining the field sobriety test you state, “Officer, I couldn’t do that even if I was sober.”
  • If a police officer sees you on the street and asks you to come over and talk to him and you comply and the officer then asks, “Where did you get that jewelry?”
  • If you go to the police station to meet with a detective and you are told that you are free to leave at anytime and are then asked, “Isn’t it true that you had sex with that young girl?”

It is clear from the above examples that you must be questioned by police while in their custody for your Miranda Warnings to be required. If either prong is missing and you make a statement, that statement will be deemed admissible in court even if you were never read your rights. If police have no intention of questioning you, they don’t ever have to read you your rights and there is no violation and therefore no remedy. Therefore, it is important to understand that in most circumstances you will never hear your Miranda Warnings read to you and it will have absolutely no impact on your case because the prosecution will not seek to introduce any statement by you as one was never made. But, the lines are gray. The easiest remedy: Don’t talk to law enforcement or others when arrested, investigated or when the target of a criminal investigation. If you don’t talk, your silence cannot be used against you. If you have provided a statement to police, it is important to consult an attorney to see if the statement was legally taken or if there is a valid motion to suppress the statement and thereby keep it from being heard by the jury.

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