When Miranda Warning Applies

Question: When does the Miranda warning apply?

Answer: There’s some misconception about when exactly it applies. And really I like to think of it as sort of a three-pronged requirement for Miranda to be required. One is that the questioning or the investigation has to be done by the police. So we get a lot of cases for example where someone is arrested for shoplifting and they’re being questioned by a security guard or a loss prevention officer or Wal-Mart, and no Miranda rights are explained to them and they come in and they say, “Hey, nobody read me my rights. They questioned me.” It’s really not required in that situation because these are not police; they’re not state actors, they’re private parties. So the interrogation has to be by the police, first of all.

Secondly, the suspect has to be in custody, and what that means is that their freedom of movement has to be restrained to the extent of traditional arrest. Usually that means that the handcuffs are put on, the person is put in a squad car, the person is taken to jail, is taken to a police holding facility, but they’re essentially placed under arrest. So many times, the police will stop somebody on the street and question them or pull somebody over for DUI and give field sobriety tests, and will ask sort of incriminating questions in that context before the person is arrested, before the handcuffs come on. And usually that is considered non-custodial, a situation where Miranda rights are not required at that point—not until there is actually an arrest. So it has to be an interrogation by the police; the subject has to be under arrest for Miranda to apply.

And thirdly, the questioning has to amount to interrogation. It has to be sort of questions that are designed to elicit an incriminating response. So, routine booking questions or questions about, What is your name? Your date of birth? Your address? Things like that are often not considered to be interrogative. So those are really the three requirements: it’s police questioning, the person is in custody and the questions amount to interrogation. In that situation, if all three of those factors are present, then the police have to read you your Miranda rights—usually verbatim, often from a card—but they have to read you your rights. And if they don’t and they do engage in interrogation, then at that point your answers to the questions would be inadmissible later in court.

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