Can I fight against my arrest if I was questioned without my miranda rights read to me?

Question

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?

Steven D. Dunnings · Answer

Miranda only deals with confessions.

Mark R. Thiessen · Answer

Yes, but you need to fight them with a lawyer.  The DA will not listen to you.

Jules N. Fiani · Answer

No.

Daniel Kieth Martin · Answer

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.

Eric Sterkenburg · Answer

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!

Stephen Freeborn · Answer

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.

Mark Bruce · Answer

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.

Thomas Tomko · Answer

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.

Jared Austin · Answer

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.

Philip Hache · Answer

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.

Craig Elhart · Answer

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.

Jason Savela · Answer

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.

James Edward Smith · Answer

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.

Timothy Klisz · Answer

No, rights only kick in after arrest. Since you were free to leave, your statements were voluntary.

Donna Eugenia Vasilkovs · Answer

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.

Cynthia Henley · Answer

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.

Paula Drake · Answer

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.

Jeffrey Pollock · Answer

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.

Geoffrey MacLaren Yaryan · Answer

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.

Harley Gutin · Answer

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.

John Bussman · Answer

If you were not under arrest at the time that you made incriminating statements, then Miranda rights don't apply.

Eric Rothstein · Answer

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.

Seth Schraier · Answer

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.

Gary Moore · Answer

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.

James Schoenberger · Answer

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.

John DeVito · Answer

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.

Jared Altman · Answer

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.

Joseph Dane · Answer

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.

Jeff Yeh · Answer

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.

Theresa Suzanne Hofmeister · Answer

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.

Find a Lawyer

Ask a Lawyer

Read Legal Articles

Ask a Lawyer

Read Legal Articles

Can I fight against my arrest if I was questioned without my miranda rights read to me?

30 ANSWERS

Find Local Criminal Law Lawyers

Helpful Resources

Ask a Lawyer