Anyone who watches TV knows what your Miranda rights are…”You have the right to remain silent, anything you say can be used against you, you have the right to an attorney, if you can’t affored one, one will be appointed for you”. As a criminal defense attorney, I hear it all the time “my Miranda rights were not read to me”. But Miranda only applies if you are subject to a “custodial interrogation” but what does that mean?
A custodial interrogations requires that you are in “custody” which is defined as you are not free to leave. If a police officer comes up to you and asks you a question, you are free to turn around and walk away. If you are not free to leave, meaning that your freedom is restricted in some way, guns drawn or police car blocking your exit if you are in a vehicle, you are in custody.
The second prong is you must be subject to “interrogation” which means you are asked questions designed to elicit an incriminating response, like “do you have any drugs on you”. The response need not be verbal. The production of drugs in response to that question by reaching into your pocket and pulling out a bag of marijuana is covered by Miranda.
In the course of my practice, I find attorneys don’t pay enough attention to Miranda. It is a great suppression issue and I successfully use it all the time when it applies.