When do the Miranda Rights kick in?

Frequently, my clients would tell me during a consultation that they were not read their rights during their interaction with law enforcement.  They would usually be quite upset when they would tell me about this.  And they would nearly always go on to ask, “Shouldn’t they dismiss my case?”  Nearly always, my answer would be, “Not so fast.”

One of the first things we learn in law school is that one’s right to the Miranda warning kicks in when one is subject to custodial interrogation.  A paradigm example of a custodial interrogation is something like the following:  you get arrested; you are then taken to a police station; and you are then confronted with officers who ask you a bunch of questions about an incident they are investigating.  In other words, your Miranda rights or your right to a Miranda warning do not get triggered unless you are first in custody and unless you are subject to questioning by officers under those circumstances.

Let’s suppose that you are pulled eneover by an officer for a traffic violation.  The officer now tells you that he can smell the odor of marijuana emanating from inside your vehicle.  The officer then asks you, “Did you recently smoke marijuana inside the car?”  Under that scenario, you are, technically speaking, being detained for investigative purposes, not arrested.  So your Miranda rights do not kick in.  And the officer does not have to first read you the Miranda rights before he starts questioning you.  Of course, the line between being arrested and being detained is not always cristal clear.

Now let’s imagine a situation where your Miranda rights are violated.  Suppose that you get arrested, you get taken to a police station and then you get subjected to questioning by officers without first being given the Miranda warning.  Let’s further suppose that you get charged criminally after such custodial interrogation.  Does this mean that your charges ought to be dismissed entirely because your rights were violated?  Not so fast.  In general, the only remedy you can obtain from the courts where your Miranda rights are violated is that any statement or statements you made to law enforcement in violation of your Miranda rights will be suppressed.  That is, law enforcement will not be allowed to use whatever statement you made in violation of your rights at trial against you.  However, the criminal charges themselves remain in place, and all the other evidence also remain in place.