Police Questioning: When Miranda Warnings Are Required?

What really happens if the police fail to read a suspect their rights?

Miranda Warnings

       The Miranda warnings (ordered by the U.S. Supreme Court in Miranda v. Arizona), are a defendant's rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:

• You have the right to remain silent.
• If you do say anything, what you say can be used against you in a court of law.
• You have the right to consult with a lawyer and have that lawyer present during any questioning.
• If you cannot afford a lawyer, one will be appointed for you if you so desire.
• If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

When the Miranda Warning Is Required

       Everywhere.  It doesn't matter whether an interrogation occurs in a jail, at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect's answers as evidence at trial.

       If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.

Pre-Arrest Questioning

       If a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning.

Responding to Questions Before an Arrest

       Does a person have to respond to police questions if he or she hasn't been arrested? Typically, no. A police officer cannot arrest a person simply for failure to respond to questions.

       The Fifth Amendment to the U.S. Constitution guarantees the "right of silence." This means that unless a police officer has "probable cause" to make an arrest or a "reasonable suspicion" to conduct a "stop and frisk," a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should not answer questions, at least until after consulting an attorney.

       However, there are several exceptions to this rule.

Loitering. The "right to silence" rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as "wandering about from place to place without apparent business, such that the person poses a threat to public safety." Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering.

Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification -- usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.

Stop and Frisk Searches

       A "stop and frisk" is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons (a "frisk").

       A police officer may stop and frisk a person if the officer has a "reasonable suspicion" that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the "probable cause" that is required to make an arrest. In one recent U.S. Supreme Court case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant.

       When frisking a person for weapons, police may feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. And, if a search produces an illegal substance, it may result in an arrest.

Post-Arrest Questioning

       The almost-universal advice of defense attorneys is to keep the old mouth tightly shut when being questioned after an arrest, at least until after consulting an attorney. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt.

Consequences of Failure to Provide Miranda Warning

       Generally speaking, without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.

       For example, if a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence -- unless the police can prove that they would have found the weapon without the suspect's statements.