You’re approached by officers.  They begin to ask you some questions.  What can the officers do?  What should they do?  What should you do?  In some instances, officers are required to give you a Miranda warning; in some instances, they are not.

What is a Miranda Warning

Before discussing when a Miranda warning is required.  It is important to understand the Miranda warning.  This warning emanates from a case from the infamous case of Miranda vs. Arizona from 1966.  The warning has six elements, some of which you may have heard on police dramas and movies. They are as follows:

  1. You have the right to remain silent and refuse to answer questions;
  2. Anything you say may be used against you in a court of law;
  3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning;
  4. If you cannot afford an attorney, one will be appointed for you before any questioning;
  5. If you decided to answer questions now without an attorney present, you will still have the right to stop answering questions at any time until you speak with an attorney; and
  6. Knowing and understanding your rights as I have explained them to you, are you willing to answer questions without an attorney present?

When Is a Miranda Warning Required?

Now that we have addressed the required elements of a Miranda warning, we must look at when it is required.  Contrary to what you have learned from watching movies and popular legal sitcoms, law enforcement is not required to recite your Miranda warnings simply because you have been arrested. A Miranda warning is required when a suspect is subjected to custodial interrogation.  Custodial interrogation has two parts:

  1. If you are in the custody of the police; and
  2. The police are interrogating or asking questions designed to get the suspect to give statements that could be used to incriminate the suspect.


So our first question is: “What does custody mean?”  Custody means a formal arrest or where the police have deprived a suspect of the freedom of action or movement in any significant way.

In determining if a suspect is actually in custody, courts will look at several factors including who was asking questions; who was present during the questioning; how did the questioning or conversation begin; where and when did the questioning take place; how long was the questioning; and did the individual feel free to leave at the end of the questions.

When looking at the questions above, courts will use a reasonable person standard.  That is to say, looking at the above questions, would a reasonable person in the same situation have felt free to leave?


Interrogation for the purposes of a Miranda warning, is not limited to questions.  It can also include any comments or actions by an officer that an officer could reasonably calculate would lead to an incriminating response by a suspect.  Police often use deceptive, seemingly nice or empathetic lines of conversation to elicit incriminating evidence from an individual.

What the Police Must Do & What You Should Do

As we’ve established, if the police have subjected you to a custodial interrogation (again, think custody and questioning), they must read or otherwise provide the Miranda warning.  If they do not, information obtained from that questioning may be inadmissible in court.

In order to invoke your Miranda rights, you must reply affirmatively and audibly; silence is not enough!  Although there are several ways to invoke these rights, informing the police that you want to speak with an attorney is a clear way to demonstrate that you intend to take advantage of your rights as provided by the 5th and 6th amendments of our Constitution.

Best Practices to Safeguard Your Rights

Questions surrounding whether an individual is in custody or being subject to an interrogation can be complex.  Further, there are exceptions to Miranda.  It is absolutely critical that you consult an attorney whenever you are contacted by police.  If police begin to question you, ask if you are free to leave.  If they say yes, leave; then contact an experienced attorney.  If they say no, tell them that you would like to speak with an attorney and say nothing more until your attorney arrives.

Police questioning can be a frightening and confusing experience.  It is always best to have an experienced attorney guide you through those complicated waters to safeguard your rights. For any questions about your rights, please contact us here at Miller and Stevens.