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Custody and Interrogation Myths

The famous words from Miranda, “You are under arrest; you have the right to remain silent,” are routinely used by police and are essentially known to everyone in the country. However, the idea that the words “You are under arrest” should always be promptly followed with the words “You have the right to remain silent” is a myth. And it is a myth perpetuated in police lore and practice through entertainment media and sometimes training. For many, a belief persists that these phrases must be used in unison, as if they were one thought. In fact, they are two distinct declarations. They should often NOT be used together.

The frequent use of these phrases jointly in popular media has convinced the public and even some law enforcement officers that police are required to use these words every time they make an arrest. This creates the perception that police are somehow unprofessional if they fail to articulate them promptly after every arrest. The truth is that advising a suspect of Miranda rights immediately upon arrest is NOT required. There are often lawful and legitimate advantages to NOT giving Miranda warnings immediately upon arrest. Well-informed officers know this, but training and supervision have not always been consistent on this point.

Pursuant to the Miranda decision, police are required to provide Miranda warnings when they conduct “custodial interrogation.” The need for Miranda warnings is only triggered by the simultaneous occurrence of both police custody and police interrogation. When police have a person in their custody (as they do in any arrest), only one of the two Miranda criteria is present. As long as there is no police interrogation, Miranda warnings are not required.

Similarly, when police interrogate a person who is not in their custody, only the second criterion is present, and again Miranda warnings are not required. Custodial interrogation involves the combination of “custody” plus “interrogation” and, in the context of Miranda, these words have special, explicit meanings.

There are two ways police officers can create the kind of “custody” that triggers the Miranda rule. The first way is by formal arrest. Formal arrest is the easier form of custody to recognize because it involves the familiar trappings of arrest, such as verbal acknowledgement (“You are under arrest”), and is usually accompanied by physical restraints (handcuffs) and relocation of the suspect (transported in a patrol car). If a person is under arrest, then that person is also in custody for Miranda purposes.

The second form of custody, the less-defined variety, is when the situation does not rise to the level of a formal arrest, but may nonetheless establish “custody” for Miranda purposes. This type of custody occurs when police create conditions that involve a substantial deprivation of freedom so similar to a formal arrest that a reasonable person might mistake it for one.

For example, if a Terry stop escalates to include a show of force or physical restraints, extends beyond a limited duration of time, or involves the police involuntarily moving the suspect to another location, those conditions are so similar to arrest that they may create “custody” for Miranda purposes. Note, however, that the Supreme Court consistently holds that ordinary Terry stops (which do not escalate as just described) do not require Miranda warnings.

The location of the police-suspect interaction influences this custody determination, but it is not conclusive. If the contact occurs in a police dominated atmosphere, such as in a police station or in a patrol vehicle, the location weighs in favor of a determination of custody.

However, this appearance of custody can be, and regularly is, overcome by police specifically advising the suspect that he is not under arrest, and proving that the suspect came voluntarily to the meeting with police and freely chose to participate in questioning.

On the other hand, a person who is in his home is presumptively not in police custody, though an overbearing police presence in his home may create an arrest-like environment that would qualify as custody for Miranda purposes.

If a person is “subjected to restraints comparable to those associated with a formal arrest,” then the person is in custody for Miranda purposes, even if there is no actual arrest. The test to determine whether the situation triggers the custody requirement of Miranda is an objective analysis conducted from the perspective of a reasonable innocent person.

A suspect who is detained in handcuffs in the backseat of a patrol car is likely to be in custody for Miranda purposes, even if he is later released without charges. The officer’s intentions and the suspect’s subjective beliefs are not determinative. The query is simply how a reasonable person in the suspect’s position would have understood his situation.

Another prevalent myth is the belief that Miranda warnings are required when the suspect is the focus of the interrogation. The Court consistently states that whether or not the suspect is the focus of the investigation is irrelevant to the question of Miranda requirements.

Interrogation is the second condition necessary for a requirement of Miranda warnings, and it also comes in two varieties. The first form is express questioning. This is the type of verbal exchange between police and suspects that is normally recognized as interrogation. Envision the exchange between a police investigator and an arrested suspect, in a small room in a police facility, in which the police subject the suspect to relentless accusatory questions. That is interrogation in the classic sense. It is the simpler and more obvious form of interrogation under the Miranda rule.

For purposes of Miranda, the term interrogation also includes the “functional equivalent of interrogation,” which is a more elusive concept. The “functional equivalent” of police interrogation is any police conduct that police should know is likely to elicit an incriminating response from the suspect. It includes a whole host of police actions that would likely provoke a response from the suspect in the same manner as would conventional interrogation.

For example, police presenting compelling physical evidence to a suspect and raising their eyebrows as if to say, “How would you explain this?” may be viewed as the functional equivalent of interrogation. When suspects interject themselves into a conversation that is not directed at them, their statements are not protected by Miranda because they are not the product of police interrogation.

A conversation between two officers that unexpectedly prompts the suspect to speak is not interrogation or its functional equivalent. However, a conversation between officers that centers on the suspect’s strong religious beliefs and plays upon his known susceptibilities to those issues is likely the functional equivalent of interrogation, even if the conversation is purportedly only between the officers.

Sometimes it is preferable for arresting officers to forego giving Miranda warnings, leaving that task to an investigator who is more informed about the charges and who may be better able to establish rapport with the suspect. The time that an arrest is begun is often the time of peak agitation for the suspect (and sometimes the officer) and may be the worst possible time to bring up silence and lawyers.

A freshly arrested suspect may be more defensive and resistant to law enforcement initiatives, and he may be more likely to demand a lawyer when he hears the Miranda warnings. This demand blocks all further police-initiated efforts at interrogation, at least as long as custody continues. Often it is a better choice to delay that discussion until it can be conducted in a more comfortable atmosphere, and perhaps even with a different officer. There is usually no need to Mirandize immediately upon arrest.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at He can be reached directly at

In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at

Published in Law and Order, Apr 2010

Rating : 8.5

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