Understanding When You Are “In Custody”


Under the Fifth Amendment protections against self-incrimination, which were famously outlined by the Supreme Court’s Miranda v. Arizona decision, you have the right to remain silent while in custody and the right to have an attorney present during questioning. However, these protections are only triggered where you are “in custody,” meaning when a suspect is significantly deprived of his or her freedom of action.

There have been many important cases regarding Miranda rights since the decision was made, including;

  • Missouri v. Seibert: The Supreme Court ruled that giving the Miranda warnings after a suspect had already made an incriminating statement violates the Fifth Amendment. (542 U.S. 600).
  • State v. Gumm: The Court ruled that law enforcement is not required to advise a suspect of his or her Miranda rights until “questioning rises to the level of a ‘custodial interrogation.’” The Court explained that the test for determining whether someone is in custody is whether, “under the totality of the circumstances, a ‘reasonable person would have believed that he was not free to leave.’” (1995-Ohio-24).
  • State v. Farris: During a traffic stop, the officer took the Defendant’s keys, instructed him to get in the cruiser, and told him that his car would be searched because of the scent of marijuana. The Court ruled that the officer had placed the Defendant in custody, because he was not free to leave, and any reasonable person in the Defendant’s position would have believed he was in custody. (2006-Ohio-3255).

An officer would like you to feel as though you are in custody, without you technically being in custody. That way, you feel obligated to stay and answer questions, without being reminded that you have the right to remain silent. When being questioned by a police officer, ask him or her if you are free to leave. If the officer says no, demand to speak to an attorney and state unequivocally that you are invoking your right to remain silent.

Posted in Criminal Defense

Tagged crimi, criminal defense attorney, Miranda rights, ohio criminal defense lawyer

Topics:  Custody, Fifth Amendment, Miranda Warnings, Police, Right to Remain Silent

Published In: Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Law Offices of Gregory S. Robey | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »