When do my Miranda Rights “Kick In”

A recent decision by the Colorado Supreme Court while clarifying when a person is under arrest so that his or her Miranda rights “kick in” -may actually end up confusing the average citizen as to why they are not considered “under arrest” when a police officer tells them they cannot leave.

Here is the present law of CUSTODY FOR MIRANDA PURPOSES in 2014

Believe it or not a person may be “in custody” for 4^th Amendment search and seizure purposes but NOT in custody for the purposes of a trigger of their Miranda Rights.

A confession and/or other kinds of incriminating statements can be used against a defendant at trial if those statements are NOT taken in violation of one’s constitutional rights such as one’s rights under Miranda. That is a motion to suppress evidence intended to prevent the admission of this evidence at trial as a violation of your constitutional rights will fail if the statements were NOT taken in violation of your constitutional rights.

Finally, put yet another way whether or not incriminating statements made by you in a police investigation are admitted at trial and then used to convict you may turn on whether you were under arrest at the time you made those statenments.

The case of Miranda v. Arizona, (1966), is famous because it protects a defendant’s Fifth Amendment right against self-incrimination by requiring police to provide an advisement before custodial interrogation.

You are considered “in custody” for the purposes of Miranda if:

“under the totality of the circumstances, a reasonable person in the defendant’s position would consider himself to be deprived of his freedom of action to the degree associated with a formal arrest.”

BUT under the Fourth Amendment, a seizure occurs ONLY WHEN:

“a reasonable person would not have felt ‘free to leave’ or otherwise terminate an encounter with law enforcement.”

Miranda then is much narrower in scope as to what actually amounts to “custody”for Miranda than the “seizure”standard under the Fourth Amendment. You can be ‘seized’under the Fourth Amendment, but NOT in ‘in custody’for the purposes of Miranda and the Fifth Amendment.

Under Miranda the issue is not the “free to leave,” standard but whether a person believes he is in police custody to the extent of a “formal arrest.”

A trial court that applies the “free to leave”standard in determining whether a suspect is in custody under the Miranda doctrine is making an error. The correct standard is the “formal arrest” standard below.

The Courts use the following factors (which are not considered a complete list) are representative of most of the criteria that are used in determining whether a defendant is in custody:

1. the time, place, and purpose of the encounter;
2. the persons present during the interrogation;
3. the words spoken by the officer to the defendant;
4. the officer’s tone of voice and general demeanor;
5. the length and mood of the interrogation;
6. whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;
7. the officer’s response to any questions asked by the defendant;
8. whether directions were given to the defendant during the interrogation; and
9. the defendant’s verbal or nonverbal response to such directions.

It is important to understand that this is considered an “objective reasonable person standard” which means it is taken from the view of the average person being detained and not the thoughts or views of either the police officers or the suspect in a particular case.

Colorado law has changed then. Custody for one amendment is not custody for another. For the 4^th Amendment:

The question of custody turns on an objective assessment of whether a reasonable person in the defendant’s circumstances would have believed that he was “free to leave the officer’s presence” BUT custody for Miranda purposes is “whether the defendant’s freedom is restrained to the degree associated with a formal arrest.”

Sometimes during the investigation of a case a person is detained by the police because they are suspected as having been involved in a crime. In this circumstance a “show-up” identification procedure may be used where the suspect is detained (not under arrest) until the alleged witness/victim can be brought to the scene to determine whether the person being detained is the actual perpetrator.

There is no question in the show up procedure that the suspect is NOT free to leave. Suspicion of the police has focused on the suspect and the suspect is held against his or her will. If the suspect tried to leave a show up procedure he would almost certainly be stopped.

The Courts in Colorado call this an“investigatory detention”that does not have the“degree of restraint”associated with a “formal arrest.”While a defendant is being detained in an “investigatory stop” the Courts have held that he is not under arrest until after he is identified by the victim. Therefore the reasoning is that he is not in custody before the identification for Miranda purposes.

Of course how long a suspect is made to wait during a “show up” procedure may turn the investigatory detention into an arrest all of which turns on the

“totality of the circumstances surrounding the stop, including the length of time spent waiting for the witness identification and whether the suspect is transported by police to the location of the witness.”

The Colorado Courts state that:

“[t]he purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing” and to protect suspects from the ‘ inherently compelling pressures’ of custodial interrogation.”

The distinction may be lost on the man or woman on the street. So the best advice is REMAIN SILENT. Whether the police are required or not required to “give you” your rights is less important than your protecting your own rights by remaining silent. You ALWAYS have the right to remain silent after identifying yourself after you have been stopped on the street. These cases this law focuses on whether the police must “Mirandize” you before questioning you.

If you remain silent and immediately ask for a lawyer distinctions such as this one make no difference.

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Never stop fighting never stop believing in yourself and your right to due process of law.

About The Author: H. Michael Steinberg Email The Author at [email protected]. A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

A Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. If you are seeking counsel there maybe other more specific technical or legal advice on the information provided and related topics. For that, please contact the author.

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