Can I fight against my arrest if I was questioned without my miranda rights read to me? 66 Answers as of July 03, 2013

I was brought in under the word of the officers that I was not under arrest. I was asked to answer a few questions then I was let outside to smoke a cigarette. After I returned, I was placed under arrest and booked instantly. No Miranda rights were read. Can I fight the way they did this?

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Jules N. Fiani, Attorney at Law
Jules N. Fiani, Attorney at Law | Jules Fiani
No.
Answer Applies to: Michigan
Replied: 5/31/2013
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
Miranda rigjhts are a complicated area of the law and the cases are decided on a case by case basis. Generally if you are not in custody and not being interrogated they do not have to read your Miranda rights.
Answer Applies to: New York
Replied: 11/16/2011
Law Office of Daniel K Martin
Law Office of Daniel K Martin | Daniel K Martin
Many people ask this question. The general public does not know that Miranda does not provide very much protection. It will have no affect on the legality of your arrest. Many people are arrested without being advised of their Miranda Rights. Here is how Miranda works: If a person was in custody and interrogated without being told that they have a right to have an attorney present and waiving an attorney, then anything they said in response to questions is not admissible in the main part of the prosecutions case. The case is not automatically dismissed just because a person was not read Miranda Rights.
Answer Applies to: California
Replied: 11/15/2011
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
It is not possible for me to answer this question with the information provided. It well may be that you can have your statement to the police suppressed but it would depend on the situation of you providing the statement to the police. Miranda rights are complicated and there are many exceptions to whether Miranda applies or not.
Answer Applies to: Alabama
Replied: 11/15/2011
Mark Thiessen, Attorney at Law
Mark Thiessen, Attorney at Law | Mark Thiessen
Yes, but you need to fight them with a lawyer. The DA will not listen to you.
Answer Applies to: Texas
Replied: 6/26/2013
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    The facts as you describe them would lead me to believe they mislead you into giving a statement in violation of your rights. An experienced attorney may be able to get the statements suppressed.
    Answer Applies to: Kansas
    Replied: 11/14/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    Law enforcement officers are required to read a person his Miranda rights before any in custody interagation is started. If on a motion of the defense the court finds that the Miranda rights were violated then all statements and all evidence obtained as a direct result of those statements are inadmissible in the prosecutions case in chief. What is in dispute in your case is were you in custody when questioned and was the questioning an interagation? Custody in relation to Miranda is would a reasonable person in like circumstances feel free to leave. Here the officer bringing you in told you that you were not under arrest. However, being under arrest is of higher standard than being in custody. Did you feel that having the officer bring you in that you could leave at any time and a reasonable person in your situation would feel the same, then you were in custody. If the questioning was about the crime you are charged with; then it is an interagation. If the court rules that you were in custody and under interagation then you have a Miranda violation. Will this help in your case depends on the facts of your case. If the prosecution has evidence other than your answers and what was linked to your answers then you could be convicted. Also if you on the stand make a statement that is contrary to what you said during the police questioning the statement that were excluded may now be used to impeach you. This is a very complicated area and you need to consult an attorney before doing anything else. And for the love of god do not talk to anyone about the facts of your case!
    Answer Applies to: California
    Replied: 11/14/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Maybe, maybe not. I have no idea what you said or how the situation transpired. You need to retain local counsel so that you can review the specific facts with him/her and also look at the police reports.
    Answer Applies to: Washington
    Replied: 11/14/2011
    Law Office of Mark Bruce
    Law Office of Mark Bruce | Mark Corwin Bruce
    You were "brought in?". Does this mean the cops handcuffed you and brought you in. Miranda kicks in when there is a "custodial interrogation". But the definition of "custodial" shifts. If you clearly were not free to go, it's custodial.
    Answer Applies to: California
    Replied: 11/14/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    The answer is . . .it depends. If your were in custody, even though they said that you were free to leave, then miranda will apply. If not, then what they did was perfectly fine and your statements can be used against you at trial. You will need to hire an attorney to review the matter and file a motion/have a hearing, depending on the results of a more in depth analysis I hope that this was helpful.
    Answer Applies to: Michigan
    Replied: 11/14/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    No, you cannot challenge your arrest but merely any responses that you made without having been given your Miranda rights to police interrogation as evidence that might be used against you in the trial of the case. The competent criminal defense counsel whom hopefully you've hired by now to represent you in this matter can further explain.
    Answer Applies to: Virginia
    Replied: 11/14/2011
    Law Firm of Martin & Wallentine
    Law Firm of Martin & Wallentine | Jerry Lee Wallentine Jr.
    They will argue that Miranda was not required by arguing that you were not yet under arrest. It's a quasi factual/legal determination the judge will make after looking at the full situation. I think you may have a difficult time getting your statements suppressed given the facts you stated.
    Answer Applies to: Kansas
    Replied: 11/14/2011
    Shane Law Office
    Shane Law Office | Robert J. Shane
    Police are only required to read the Miranda warning when you are "in custody." A person must be restrained to a degree associated with a formal arrest before you are "in custody." In deciding this issue, the courts consider whether or not a reasonable person in your place would believe he or she was in police custody. If a reasonable person in your place would believe he or she was in custody, the Miranda warning must be given to you prior to police questioning. When you go to the police station on a voluntary basis to answer questions, you are not considered to be in custody and no Miranda warning is required prior to questioning. There still may be an issue as to whether or not your confession was voluntary. In determining the voluntariness of the confession, courts look to several factors including: the defendant's age, maturity, intelligence, education, experience and ability to comprehend. If your confession was not voluntary, it can not be used against you at trial even though you were read the Miranda warning. If during during the course of police questioning you admit to a crime, the police will have established probable cause to justify an arrest and you will be taken into custody pending formal charges.
    Answer Applies to: Minnesota
    Replied: 11/14/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    You will need an experienced criminal attorney to determine if a motion to suppress your statements are warranted. Miranda warnings must be given when you are in police custody and they are asking you incriminating questions. It's a case-by-case determination and will depend on several factors. Seek out a criminal defense attorney to help you.
    Answer Applies to: Michigan
    Replied: 11/14/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Miranda rights are supposed to be read at the time of arrest, and if not, statements made after arrest may be able to be suppressed. It may be possible to argue you were actually under arrest at the time you answered the questions, even though the officers said you were not. You should contact an attorney to speak about your case in more detail.
    Answer Applies to: California
    Replied: 11/14/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    You may be able to. I you were the focus of the investigation when questioned, they should have read you your rights. You need to retain an attorney to review this matter on your behalf.
    Answer Applies to: Michigan
    Replied: 11/14/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    You can try. Strictly speaking, Miranda rights only kick in if you are in custody but not Mirandized, interrogated, make statements, and then those statements are used against you. An easy way around this rule is to tell someone that they are not under arrest before interrogating him or her. In truth, however, the subject would not be free to leave and, therefore, is in fact in custody. Sounds like that may have been your situation. The solution is for a smart attorney to bring a suppression motion and argue that you were, in fact, not free to leave and in actual custody during the interrogation. If this argument is successful then any statements made could be suppressed. Know, though, that these motions are very seldom won. Good luck.
    Answer Applies to: California
    Replied: 11/14/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    The cops are only required to read you Miranda warnings if you are being interrogated in a custodial setting. The circumstances that you describe are not custodial. Unfortunately, the answer was not to talk to the cops. Hire a good attorney.
    Answer Applies to: California
    Replied: 11/14/2011
    Connell-Savela
    Connell-Savela | Jason Savela
    You can fight it, but it seems like you were not in custody when they asked you questions - in that case, Miranda warnings are not required this is why you always refuse to speak with the police and demand a lawyer - why trust the people that are trying to put you in jail.
    Answer Applies to: Colorado
    Replied: 11/14/2011
    Keyser Law Firm
    Keyser Law Firm | Christopher W. Keyser
    Based off these facts, there isn't much of a remedy for you. It is a common misconception that cases can be thrown out because Miranda warnings were not given. This is a falsity perpetuated by television crime dramas. Law enforcement is only required to provide a Miranda warning during a "custodial interrogation." This almost always translates to an interrogation at the police station where the arrested party is not free to leave. To distinguish, a cop asking you questions on the street is not a custodial setting because you are free to walk away. In the case you describe, the police did nothing illegal. If you were taken inside an interview room at the jail and asked questions by law enforcement, were not provided the chance to speak to a lawyer, and then made incriminating statements, you may have a basis for challenging your case.
    Answer Applies to: Minnesota
    Replied: 11/14/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Miranda warnings, i.e. the right to remain silent and/or have an attorney present during questioning need only be given when you are in custody or your right to freedom is deprived in a meaningful way. The effect of their not being given when necessary is that any statement that the suspect makes is inadmissible at trial except that it may be used to impeach the defendant if he gives a different version as part of his trial testimony. Otherwise there is no requirement the warnings be given and no right to have a case dismissed because they were not given.
    Answer Applies to: California
    Replied: 11/14/2011
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    You may be able to fight your arrest on some other basis but not for failure to have been ready your Miranda Rights. The Miranda warnings, as they're now known, came out of the Supreme Court case, Miranda v. Arizona, as an effort to protect a citizen's 5th Amendment right to remain silent. In short, the police are to alert suspects that they have the right to remain silent and not incriminate themselves; that if they choose to speak, whatever they say can and will be used against them in proving their guilt; and that they have a right to an attorney present during questioning even if they can't afford an attorney. (Author's Note: These rights should ALWAYS be exercised!) The Miranda warnings are only required to be given by police when a suspect is in custody and being questioned. (custodial interrogation). Hence, if you are not in custody or you make statements without having been questioned, then the Miranda protections do not apply. The easiest way to find out if you are in custody if you are not sure is by asking the police officer if you are free to leave. In your case, you were questioned and then were allowed to leave (to smoke a cigarette); therefore, there is evidence you were not yet in custody while being questioned and the officer's did not read to read you your rights. If the police did not question you after your arrest upon your return, then your lawyer may seek to prevent or limit the prosecutor's ability to use any statements made by you after your arrest. It does not mean that the charges against you are dismissed, as the prosecutor is allowed to use any other evidence against you that was lawfully obtained to try and prove their case beyond a reasonable doubt. There are a great many legal decisions discussing the nuances of this area of law so I highly recommend discussing the particular facts of your case, with an experienced criminal defense attorney like myself.
    Answer Applies to: New York
    Replied: 11/14/2011
    Law Office of James E. Smith
    Law Office of James E. Smith | James Smith
    Your attorney can file a motion to suppress any statements you made before the arrest, but a Judge will have to determine if the police were acting in bad faith when they brought you in for initial questioning. The police can conduct investigative questioning without reading you your rights and then if you give information which incriminates you they can decide to arrest you.
    Answer Applies to: Nevada
    Replied: 11/14/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    No, rights only kick in after arrest. Since you were free to leave, your statements were voluntary.
    Answer Applies to: Michigan
    Replied: 11/14/2011
    Law Offices of Sean Logue
    Law Offices of Sean Logue | Sean Logue
    Unfortunately, yes.
    Answer Applies to: Pennsylvania
    Replied: 6/2/2013
    Vasilkovs Law Office | Donna Vasilkovs
    No. Miranda rights need to be read to you ONLY BEFORE CUSTODIAL INTERROGATION and when the state wishes to introduce your statement against you in court. You freely came and answered questions. You were not NOT free to leave as exhibited by your freedom to leave and smoke. You could have left the area. Whatever you said to them gave the police, in their opinion, probable cause to arrest. That is what you may fightthe court could rule there was no pc for the arrest. Your answers, however, come in b/c they are considered investigatory questions asked to determine whether there is pc for an arrest. Whatever you said did the trick for them.
    Answer Applies to: Washington
    Replied: 11/14/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    They could have gotten a warrant while you were at the station. (I have had a client that happen in Travis County.) At that point, when they placed you under arrest, they should have read your rights to you. If they did not - at that point - and then questioned you and you made inculpatory statements, those statements may be suppressed at trial but that is not cause to dismiss the case.
    Answer Applies to: Texas
    Replied: 11/14/2011
    Law Offices of Paula Drake
    Law Offices of Paula Drake | Paula Drake
    The issue depends on whether it was in fact a custodial interrogation. If you were free to leave, then they would not read you your rights because they will say you are not in custody. Once you incriminated yourself it probably gave them enough probable cause to arrest you; once they arrest you any statements need to be preceded by the Miranda advisements. My guess is that they didn't question you any more once arrested. The issue of whether or not you were truly free to leave vs. whether you were in "custody" at the time of the statements is worth a look at by your attorney. You should get counsel if you do not have one in order to explore the issue in more depth.
    Answer Applies to: California
    Replied: 11/11/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    You were evidently not in custody and under arrest when you voluntarily answered questions and were free to go smoke. You must have incriminated yourself with answers that then gave them the probable cause to arrest you. After you were arrested, anything you said without being Mirandized could be suppressed and not use to prosecute you.
    Answer Applies to: Pennsylvania
    Replied: 11/11/2011
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    Police are required to advised an individual of their Miranda rights only if they are under arrest or not free to leave. Since you were told you were not under arrest and apparently free to leave then it is unnecessary to advise you of your Miranda rights.
    Answer Applies to: California
    Replied: 11/11/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    If you were free to have left the station when you had gone outside to smoke, after the questioning was concluded, you were not under arrest, and you probably would not get your statement suppressed. However, you should have your attorney file a motion to suppress your confession, you could get a ruling in your favor.
    Answer Applies to: Illinois
    Replied: 11/11/2011
    Law Office of Rankin Johnson IV, LLC
    Law Office of Rankin Johnson IV, LLC | Rankin Johnson IV
    Unlikely. The remedy for an illegal arrest, or a lack of Miranda warnings, is suppressing evidence found as a result. Further, the police can lawfully delay arresting you once they have probable cause to do so, or, perhaps, they arrested you after your answers to their questions gave them probable cause. In theory, it is sometimes possible to sue for illegal police conduct, but that is very hard, even with significant injuries.
    Answer Applies to: Oregon
    Replied: 11/11/2011
    Attorney & Counselor at Law
    Attorney & Counselor at Law | John Hugger
    No. You must always respect the officer's authority. You can always file a civil action if abused as long as written notice is given within 180 days. Miranda only goes to suppression of statements made or events ocurring after the time that Miranda should have been given.
    Answer Applies to: Colorado
    Replied: 11/11/2011
    The Law Offices of Victor J Mazzaraco
    The Law Offices of Victor J Mazzaraco | Victor J Mazzaraco
    Yes, it sounds like a strong argument for police misconduct to me. Your 5th amendment rights may very well have been violated Basically, the cruxt odf the issue is: Would a reasonable person in your particular situation have felt like they were free to leave, or was the police conduct such that - even if unspoken - a reasonable person would have known what was up. Also, the questioning must have been designed to illicit information that would ge you in legal trouble.
    Answer Applies to: California
    Replied: 11/11/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    You have no told me what you were charged with or if you made admissions or statements. The police should give Miranda Warnings to a suspect if he is in custody. If they warnings are not given the defense attorney can run a Huntley Hearing to ask the court to suppress the statement at trial. Even if the statement is suppressed it can be used to impeach the defendant if he takes the stand and testifies. If the police ask you questions you should ask for your lawyer or ask that a lawyer be appointed before you answer any questions. You must insist that all questioning stop and the police must then stop questioning you. They can hold you for a few days before they have to charge you and bring you in front of a judge. The will manipulate you, lie to you, play good cop/bad cop or hold you in custody for 24 hours until they can persuade you to make admissions or confessions. Most police officers are very smart and most criminals are very stupid, so they get most people to give up their rights and make admissions that will make it much harder to get a good plea deal since now the prosecutor has an easy win at trial. In other words, Fish Only Get Caught When They Open Their Mouth.
    Answer Applies to: New York
    Replied: 11/11/2011
    Law Office of James A Schoenberger
    Law Office of James A Schoenberger | James A Schoenberger
    Miranda rights must be read before an interrogation where you were not free to leave. If you went outside for a smoke it would seem you were free to leave. While not perhaps the best police practice not to advise someone before any interrogation, it does not appear your Miranda rights were violated.
    Answer Applies to: Washington
    Replied: 11/11/2011
    Reza Athari & Associates, PLLC | Seth L. Reszko
    From the information you provided, you might have consented to giving answers to the questions of the officers without the officer having to advise you of your Miranda rights. After your arrest, you should have been given Miranda warnings. I don't know if you provided the police with any information after you were placed in custody because that information could be challenged in Court.
    Answer Applies to: Nevada
    Replied: 11/11/2011
    DeVito & Visconti, PA
    DeVito & Visconti, PA | John E DeVito
    What you can challenge are any statements tht you made to the police prior to the reading of Miranda. If those prior statements incriminate you and the statements are suppressed, that is, not used during any trial against you, then you may win the case. If the police have other evidence against you and that evidence is sufficient to convict you, even with out you statements, then you may be convicted.
    Answer Applies to: Massachusetts
    Replied: 11/11/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    The remedy for not being read your rights ("Mirandized") is that any admissions found to be involuntary that you may have made to the police cannot be used against you. It does not mean an automatic dismissal of the charges against you. The police know this so they don't bother Mirandizing you if they don't need your statements or a confession to prove your guilt.
    Answer Applies to: New York
    Replied: 11/11/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    No you can't. You were never arrested when you came in, so it is considered voluntary. In other words, Miranda simply didn't apply. You can only blame yourself for going in to be questioned in the first place. You should always exercise your right to remain silent, and never talk to law enforcement about anything unless your attorney is present.
    Answer Applies to: California
    Replied: 11/11/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    Miranda rights are required to be given if a person is in custody and being interrogated. If there was a violation (they were required to give the rights, but didn't, for example), then the statement and any evidence obtained from that statement would be subject to exclusion, but it wouldn't necessarily invalidate the entire arrest. Discuss all the particulars with your attorney, as Miranda and search issues are always very fact-specific. There may be more to this than just what you've posted.
    Answer Applies to: California
    Replied: 11/11/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Miranda only deals with confessions.
    Answer Applies to: Michigan
    Replied: 7/3/2013
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    You can fight whatever you want. You are not going to win on the MIranda issue, because you voluntarily came to visit the police. Miranda rights only need to be read to you IF you are under arrest (not free to leave) and the police are asking you questions about the crime you are under arrest for (not your age, name or affinity for the Falcons). Other than that Miranda right do not need to be read. You walked in on your own (no attorney), not knowing what the police knew and gave them probably just enough to warrant the arrest.
    Answer Applies to: Georgia
    Replied: 11/11/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Many people believe that they must be read miranda rights when arrested or questioned. That is not true. Miranda rights only need be read when two circumstances are present - (1) the person is in custody; and (2) an interrogation occurs. You can be interrogated without being custody and you can be in custody without being interrogated. "Custody" is defined by case law to be whenever a reasonable person would not feel free to leave based on the circumstances. They need not be arrested. Interrogation means they are asked questions. If they are arrested and no questions are asked, there is no need for Miranda. If miranda is not read and a custodial interrogation occurs, that does not mean a case is dismissed. Instead, it is a basis to file a motion to suppress and statements made and any evidence that results from that interrogation. If there is sufficient independent evidence to proceed after that, the case may still go forward.
    Answer Applies to: Minnesota
    Replied: 11/11/2011
    Law Office of Ronald Aronds, LLC
    Law Office of Ronald Aronds, LLC | Ronald Aronds
    If the answers you gave to the unMirandized questions were the basis for your arrest then I would certainly consider filing a motion to suppress the evidence (i.e. your statements) and thereby get your charge dismissed.
    Answer Applies to: New Jersey
    Replied: 11/11/2011
    Michael Edwards, Attorney at Law
    Michael Edwards, Attorney at Law | Michael Edwards
    It sounds like the officers probably complied with the law in the way they handled this situation. You see, they are not obligated to read you the Miranda warnings until you have been arrested (or there are objective indicia of arrest, like handcuffs or another loss of freedom), and they intend to question you post-arrest. In your case, it sounds like you were questioned before you were under arrest. Then, based upon what they knew of the whole case, they arrested you. That procedure is legally and constitutionally unobjectionable, though I'm sure that doesn't make you feel any better.
    Answer Applies to: Utah
    Replied: 11/11/2011
    Law Office of David Baum
    Law Office of David Baum | David M. Baum
    Yes. You can challenge a prosecution based upon evidence, such as your statement to police, obtained in violation of your Miranda rights.
    Answer Applies to: California
    Replied: 11/11/2011
    Attorney at Law
    Attorney at Law | Michael J. Kennedy
    If the setting was such that a reasonable person would have believed he was in custody, ie, not able to leave, when you were questioned, then the answers cannot be used. If not, they can. It is never, ever, EVER, wise to talk to the cops, as many have announced here over the years, so why you would do that is a mystery. The cops, and the government in general, are not your friends, and only a fool falls for that long established trick.
    Answer Applies to: California
    Replied: 11/11/2011
    Theresa Hofmeister, Attorney At Law
    Theresa Hofmeister, Attorney At Law | Theresa Hofmeister
    It depends on what you're being charged with and what the prosecution wants to use against you as far as statements made. Talk to a local criminal defense attorney in your area.
    Answer Applies to: California
    Replied: 11/11/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    If you are 'free to go' when questioned, then no Miranda rights need to be read to you. If for some reason you were to have been read Miranda rights and weren't, then the remedy the court gives you is to not allow the use of your statement. Any other evidence in the case would still be available for use.
    Answer Applies to: Colorado
    Replied: 11/11/2011
    John Segelbaum, P.S.
    John Segelbaum, P.S. | John Segelbaum
    If you were not in custody they did not need to read Miranda.
    Answer Applies to: Washington
    Replied: 11/11/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Miranda Rights only apply when you are in custody. That is generally when you are not free to leave. Since you were free to smoke a cigarette you were not under arrest or in custody. Besides that, the lack of being advised of rights is only of limited value. It doesn't mean the case will be dismissed. All it means is your in custody statements may be thrown out.
    Answer Applies to: Washington
    Replied: 11/11/2011
    Law Office of Charles J. Block
    Law Office of Charles J. Block | Charles J. Block
    Probably, but you will have to show the arrest was based upon the questioning and not other evidence
    Answer Applies to: New Jersey
    Replied: 11/11/2011
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    You can file a Motion to Suppress your statements prior to the arrest as no Miranda Warnings were given. However, they (the State) will argue that you were not in "custody" or "under arrest" and therefore they did not have to give you "Miranda warnings". Your argument would be that you did not feel free to leave and therefore you were for all purposes "under arrest" or in "custody". Miranda warnings do not have to be given if you are not in custody or under arrest.
    Answer Applies to: Florida
    Replied: 11/11/2011
    Law Offices of Stephanie Lee Ehrbright, Esq.
    Law Offices of Stephanie Lee Ehrbright, Esq. | Stephanie Lee Ehrbright
    You only have to be read your Miranda warning if two conditions are met- you are in custody and you are being questioned. That's why officers frequently tell people they are not under arrest when they are questioning them. But after, if they arrested you and did not question you more than they did not have to read you your rights before arresting you. The main question would be if you were in fact in custody while they were questioning you before that. If so, then the answers to your questions would not be admissible in court.
    Answer Applies to: Arizona
    Replied: 11/11/2011
    Rizio & Nelson
    Rizio & Nelson | John W. Bussman
    If you were not under arrest at the time that you made incriminating statements, then Miranda rights don't apply.
    Answer Applies to: California
    Replied: 11/11/2011
    Flood Lanctot Connor Stablein, PLLC
    Flood Lanctot Connor Stablein, PLLC | Paul J. Stablein
    If a defendant is in custody at the time the officers conduct an interrogation of the defendant, that is, they ask questions of the defendant designed to elicit an incriminating response, then anything the defendant says in response to those questions may not be used as evidence against the defendant unless, prior to the questioning, the officers first advised the in-custody defendant of his Miranda rights. However, if a defendant voluntarily goes with the police to the station, is told that he is not under arrest, and the defendant is free to leave, he is not "in-custody" as that term is defined by the courts. If a defendant, under those circumstances voluntarily chooses to stay and answer the questions posed by the officers, anything that defendant says to the officers can be used as evidence against him or her. Moreover, police may only arrest an individual if they have probable cause to believe that the arrestee has committed a crime. In your case, I would anticipate that the prosecution would argue that they did not have probable cause to arrest you when you went with the police to the station, but, based upon your answers to the questions, the police then developed probable cause to believe you had committed a crime and, therefore, had probable cause to arrest you at that point. That being said, in some instances, it can be argued that the defendant was in custody under certain circumstances, and that he should have been Mirandized prior to any questioning. Every case is different and the outcome of any motions depends on the particular facts of each case.
    Answer Applies to: Michigan
    Replied: 11/11/2011
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    That depends. It doesn't sound like you were in custody when they questioned you. In that case, Miranda doesn't apply. Unbeknownst, it seems, to almost everyone who watches TV, Miranda only applies to CUSTODIAL INTERROGATION. In other words, if you were not in custody and not free to go (they let you leave to smoke a cigarette) and you decide to answer their questions, Miranda does not have to be read to you at all. In fact, Miranda warnings NEVER have to be read. It's just that, if the suspect is in custody, and he gives a statement without having been read them, the statement and anything derived from it could be suppressed as evidence in court. There is also no law that says you must talk to police. But it seems that you did voluntarily and thus anything you said while not in custody can be used against you.
    Answer Applies to: New York
    Replied: 11/11/2011
    Evans & Al-Shabazz | Robert Anthony Evans
    I believe the short answer is YES. It will however, be your word against the word of the arresting officer and likely his partner. Based on your US Constitutional Rights against self-incrimination you are, under a case called Miranda v. Arizona you are supposed to be advised of your rights any time a "custodial" interview or questioning takes place. When are you in custody is usually where the legal fight begins and ends - in a police station - sometimes yes, sometimes no.
    Answer Applies to: New York
    Replied: 11/11/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    You are entitled to Miranda if you are: a) in custody and b) being interrogated. The DA will argue that you were not under arrest and therefore free to leave so not in custody. Even if there was a violation, the statements get suppressed but the case goes on.
    Answer Applies to: New York
    Replied: 11/11/2011
    The Law Offices of Seth D. Schraier
    The Law Offices of Seth D. Schraier | Seth D. Schraier
    It depends exactly on what you stated to the officers before your arrest. If you felt that you were confined while they had you, even if they stated you were not under arrest, and you made statements that were incriminating and used against you, then you can fight the admission of these statements. If, however, the police can still put together a criminal case without relying on the statements you made, then they can still proceed. Your Miranda Rights protects you against evidence or statements obtained in violation of your 4th Amendment Rights from being used against you. However, the failure of police from reading you your Miranda Rights does not throw out your entire case if there is enough evidence that was properly or independlty obtained that can still prove their case.
    Answer Applies to: New York
    Replied: 11/11/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    You can fight the use, at your trial, of your statments to the police which were given prior to your arrest. A motion can be filed to suppress your statements.
    Answer Applies to: New Jersey
    Replied: 11/11/2011
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    If you were free to leave and not placed under arrest when you gave the statement, it will likely be allowed into evidence. If the situation created made you believe you were not free to leave, then you could argue that you should have been given a Miranda Advisory. Should your argument be successful, the remedy is for any statments you made or any evidence obtained from those statements be suppressed from evidence.
    Answer Applies to: Minnesota
    Replied: 11/11/2011
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