• Chris Zachar

When do the police have to read you your rights?


Repeat after me: "I WANT A LAWYER!"

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 and to have that attorney present during questioning. If you cannot afford an attorney one will be appointed for you at public expense.


Miranda warnings have become a part of our culture. We see television cops reading suspects their rights as soon as they slap the cuffs on. We see it in movies and read about them in books. Many people are able to recite Miranda warnings from memory, but most aren’t aware that in a large number of cases police are not required to read suspects Miranda warnings before you make an incriminating statement. Let’s take a look at when they are required.


ISSUE # 1: Were you in custody?


State and Federal courts place a huge distinction on interrogations that occur in custody and those that occur out of custody. The theory is that suspects will feel more pressure to confess in custody, therefore as a safeguard against coerced confessions suspects must be advised of their rights before being questioned in custody.

So when are you in custody for purposes of Miranda? Wisconsin uses the “reasonable person test” to make this determination. What this boils down to is asking whether a normal “reasonable” person in the same circumstances would have felt free to end an encounter with law enforcement and walk away. This test focuses on how the suspect would perceive his or her circumstances, not on the perspective of the officer. Increasingly the tests for determining whether a suspect is under arrest and whether he or she is in custody for purposes of Miranda are one in the same. Courts will look at a number of factors to determine whether or not someone is in custody, but some of the most common include:


• Whether you have been told not to leave, told to sit on a curb, or placed in the back seat of a locked squad car;

• Whether you were placed in handcuffs;

• Whether an officer used force such as drawing a firearm, taser, or other weapon;

• Whether you were in a police department, jail, or correctional institution;

• Whether you were separated from people in your car, your wallet or identification was in the possession of the law enforcement officer, or you were separated from your children;

• Whether you had reason to believe he or she was under arrest or about to be arrested;

• The length of your encounter with law enforcement;

• What the officer said or otherwise communicated to you about whether you were free to leave.


In Wisconsin, you are automatically “in custody” for purposes of Miranda when any of the following apply:


• You are a prisoner inside of a jail, prison, or correctional institution;

• An officer has explicitly told you that you are under arrest.


It becomes more difficult to determine whether you were in custody for purposes of Miranda if you weren’t placed under arrest. For instance, Wisconsin courts have held that handcuffing alone does not always place a suspect “in custody.” Nor does a frisk of your clothing or the phrase “you’re being temporarily detained.” Courts have ruled in certain cases that pointing a firearm at a suspect does not constitute “custody,” and that questioning in a police department is oftentimes non-custodial. There are thousands of cases in Wisconsin alone that try to sort out when a suspect is in custody, but the facts of each case must be individually evaluated to determine whether a suspect was in custody. An experienced criminal defense attorney will be up to date on Fifth Amendment caselaw and will be able to help you determine whether you were in custody under the circumstances of your case.


So when are you not in custody for purposes of Miranda?


Simple traffic stops. Even though you must pull over and are not free to leave until the officer finishes the stop, a simple traffic stop is almost never enough to trigger Miranda. If you choose to speak to an officer during a traffic stop an admit to speeding, possession of drugs in the vehicle, or any other type of infraction, generally the prosecutor can use those statements against you even when you have not been read Miranda warnings.


Voluntary interviews. If the police show up at your doorstep, call you on the phone, or ask you to come down to the police department for a conversation, you are generally out of custody and the officer does not need to advise you of your rights before inviting you to incriminate yourself.


Controlled drug buys and recorded phone conversations. Even though they are designed to incriminate suspects, you are not in custody if you participate in an undercover drug transaction, or say something incriminating while being monitored during a phone call, text/Facebook message, or other type of communication.


ISSUE # 2: Were you interrogated?


Once you have established that you are in custody, the second question is whether or not the officer interrogated you. “Interrogation” means that the officer asked you a question, made a statement, or took some other action that was likely to elicit an incriminating response. For instance, asking you to confirm that you sold drugs would definitely be interrogation. But an officer could interrogate you even if he or she doesn’t ask any questions. One common tactic is for an officer to generally talk about the harm done to an alleged victim during a ride to jail with the hope that a suspect will feel guilty and begin talking.


But there are also several common scenarios that do not constitute interrogation. Probably the most common is the suspect who persists in asking the officer questions about their arrest and the case against them. When you open the door to this type of conversation, many courts will conclude that you voluntarily decided to share information with the officer because your comments were not in response to an officer’s questioning. However, conversations that are unrelated to a criminal investigation, including questions asked during routine jail bookings, also are not considered interrogation.


ISSUE #3: Were the warnings valid?


Contrary to popular belief, an officer is not required to read you any particular version of Miranda warnings. Our courts have determined that valid Miranda warnings must satisfy the following:


1. They are in a language or medium that allows the suspect to understand the warnings. Suspects who speak a foreign language, are hearing impaired, or are under the influence of a controlled substance can sometimes challenge Miranda warnings that they could not understand.


2. A suspect is advised of the right to remain silent.


3. A suspect is advised that his or her statements will be used against him during prosecution.


4. A suspect is advised that he or she has a right to an attorney at public expense.

While it is good practice to read from a standard Miranda card, officers are not required to do so. Nor are they required to get a written waiver of your rights before they begin questioning. Many police departments include a final warning that a suspect can decide to stop answering questions at any time and exercise his or her rights, but this warning is also not specifically required.


Your statement may be used as a flotation device.


ISSUE #4: Did I exercise my rights?


Anyone who is read Miranda warnings must unambiguously exercise their rights. This means that you must very clearly tell an officer that you’re exercising your rights. It isn’t enough to say “maybe I shouldn’t talk about this,” or to ask an officer whether you should get a lawyer. The U.S. Supreme Court has even concluded that remaining silent is not enough to exercise your right to silence. If you want to exercise your rights, you need to be clear, and you need to say it our loud. Any of the following will work:


• I’m not saying anything without a lawyer.

• I’m not talking to the police.

• I’m invoking my Fifth Amendment rights to remain silent and have a lawyer.


Always remember that the police wouldn’t be talking to you if they didn’t want you to incriminate yourself. You are always better off if you say that you aren’t talking to police and requesting a lawyer after you’ve been read Miranda warnings.

But even if you spoke to the police, an experienced criminal defense attorney will carefully review the circumstances of a statement and fight to have invalid statements thrown out of a client’s case. If you have questions about what you said to the police, contact us immediately to review your options.