“Man, that cop didn’t read me my rights!” Lots of people who come into our office when they’ve been accused of a crime will often say this. But does it matter? Do the cops have to read your rights to you when they are talking to you? The answer, as usual, is “It depends.”
In Miranda v. Arizona, the U.S. Supreme Court interpreted the Constitution to require certain police actions when dealing with a criminal suspect, including that a criminal suspect be advised of his rights and that those rights be honored when invoked. You have the right to an attorney (the 6th Amendment). But if you don’t know that, or if the police won’t stop questioning you after you ask for an attorney, what good is that right? You have the right to remain silent (the 5th Amendment). But if the police keep asking you questions after you’ve tried to remain silent, or you believe that you are obligated to talk to them or you’re pressured to do that by the circumstances of the questioning, what good is that right? The Supreme Court in Miranda decided that those rights are meaningless unless a person knows about them and is truly able to invoke them, i.e., if the police in fact honor those rights. The result? The police now must advise you of your rights (they must advise a suspect “that he has the right to remain silent; that anything he says may be used against him; that he has the right to the presence of an attorney; and that if he cannot afford one, one will be appointed for him”). BUT, the police only have to give the warning in certain circumstances. They do not have to give a Miranda warning each time they talk with a suspect.
The police only have to give a Miranda warning when there is a suspect who is undergoing “custodial interrogation.” That means the police must 1) have a person in custody and 2) be interrogating that person. Unless each of those conditions is met, the police do not have to give a Miranda warning. But if both of those conditions are met, the police must give a Miranda warning.
To determine whether a person is “in custody,” a court will make “an objective assessment of whether a reasonable person in the suspect’s position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest.” Basically, would a reasonable person in that situation feel that he or she could not leave? If a person could just walk away from the police officer(s), then that person is not in custody. No matter what the police officer is asking person, or saying to that person, if a reasonable person in that situation would feel free to leave, then the police officer does not need to give a Miranda warning.
To determine whether a person is being “interrogated,” courts must determine whether the suspect was “subjected to either express questioning or its functional equivalent.” Interrogation therefore includes “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response.” So if a person who is suspected of a bank robbery is in police custody, and a police officer asks him, “how about the weather today?,” the law does not require that the police offer a Miranda warning before asking that question. The police only have to give a Miranda warning if a person is in custody and they are asking him questions that are designed to incriminate him.
So what’s the takeaway? If you are being questioned by police for a suspected crime, you should always ask whether you are being detained. If you are not being detained, you are free to leave and you should do that. If you are being detained, you should invoke your right to counsel and remain silent, period, until you speak with your attorney. Thanks to Miranda, the police must stop questioning you and honor that right.
If you or a loved one needs someone to fight hard for their rights, call us today. Life happens. We can help.
 When a person says, “reading your rights” or “didn’t read me my rights” or something along those lines, he or she is referring to the advisement that police are sometimes required to give a suspect in custody. The advisement is called a “Miranda warning,” which refers to the name of a U.S. Supreme Court Case, Miranda v. Arizona, 384 U.S. 436 (U.S. 1966), where the Court first required the recitation of these rights. The rights are afforded by the U.S. Constitution.
 People v. Matheny, 46 P.3d 453, 462 (Colo. 2002).
 Id. at 465-466. Some factors the court considers in making this determination include “(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer’s tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer’s response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant’s verbal or nonverbal response to such directions.”
 Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
 Id. To determine whether questioning is designed to elicit an incriminating response, courts will consider the “totality of the circumstances,” and will consider whether the officer reasonably should have known that the officer’s words or actions would cause the suspect to perceive that he or she was being interrogated, whether those words or actions were calculated to elicit incriminating statements, and whether in light of the interrogation environment the police compelled the incriminating statements.” People v. Bonilla-Barraza, 209 P.3d 1090, 1094 (Colo. 2009)