Clients will frequently ask me if they can beat their case because the cops didn’t read them their rights. My answer, like any question in law question, is “maybe.”

We all know the Miranda warnings by heart from TV. “You have the right to remain silent….” What non-lawyers don’t get from TV is what happens when you aren’t read your rights.

First off, the most important thing to know is that Miranda warnings are only required for custodial interrogations—the means you are detained or locked up. If you are standing on the street and an officer asks you “do you have anything illegal on you?”, your response could be admitted in court. Only when a court says that any objective person would think you are not free to leave the area would that be considered a possible custodial statement. So, if you admit to having a couple of gel caps, or a blunt, you just gave the cops probable cause to search you and find it.

There are times that clients point out they were not read their rights and I ask “did you say anything?” If the answer is no, then it really doesn’t matter.

Miranda or “your rights” only protect against statements, things yu say in response to questions. If you don’t say anything, you don’t have a loophole for your case, but you also haven’t given the State any help in building a case against you. Much better!

Let’s say that you are being cuffed. Clearly you are under arrest, the cops are searching you now and you know you have a gun. You want the cops to know it’s not yours before they ask you anything.

You yell “that gun isn’t mine!” Surely they needed to read you your rights then? Probably not. Courts have held that statements that aren’t made in response to questions are “blurts” and are not a violation of Miranda. You may have just given the State a valuable piece of evidence against you.

So, what should you do? Many “know your rights” videos suggest you ask “am I being detained.” That can be a possible option. If the cop says yes you know to not make any statements or say a word. But cops can be clever and say something that can be confusing in court later. Your best option may be to limit what you say to your name, date of birth, and that’s it. Be polite but be firm. “I just want to call my lawyer.” “Officer, I’m just on my way home” are statements that can show you are being polite without making any statements at all.

Remember, that anytime you are read your rights, you should ask for a lawyer. Period. There’s nothing you can say to the cops that won’t be better said with a lawyer next to you.

Catch a Charge? Get Finegarlaw!