Your arrest for any criminal offense triggers several constitutional protections. You are entitled to these protections whether you were arrested for a traffic violation, Driving While Intoxicated, Drug Possession, Murder, or any offense in between. Once in police custody, the United States Constitution guarantees your 5th Amendment right against self-incrimination and 6th Amendment right to legal representation, whether you can afford it or not. You also have protections under the Texas Constitution and other laws of the State of Texas.
To ensure you are aware of these protections, law enforcement must provide you with a set of warnings before they begin a custodial interrogation post-arrest. These warnings are called your Miranda Warnings and you have likely heard them before even if this is your first arrest. The wording may vary depending on your location and the police officers involved, but legally sufficient warning should include the following:
You have the right to remain silent.
Anything you do or say may be used against you in the court of law.
You have the right to an attorney.
If you cannot afford an attorney, one will be provided for you.
You have the right to terminate this interview at any time.
Miranda Rights Only Apply During Custodial Interrogation
Police officers are only required to read your Miranda rights before a custodial interrogation. For every moment up to the moment you are in custody, police questioning is fair game. Where are you coming from? Where have you been? Have you been drinking anything tonight? Is that marijuana I smell? Do you have anything in the vehicle I need to know about? Anything illegal on your person? Questions such as these are completely legal and should be expected during any voluntary encounter, routine traffic stop, or investigation. To determine at which point in your investigation you are protected against such questions, we must first understand what being in “custody” means.
When are You Considered to be in Custody?
You are considered to be in custody when a reasonable person in your position would believe his or her freedom of movement is restrained to the degree associated with a formal arrest. When most people think of being in custody, they think of a formal arrest wearing cold, metal hand-cuffs and sitting in the back of a squad car. However, any number of things could escalate a situation where you would be in custody without an officer mentioning the word arrest or flashing his shiny hand-cuffs. For example, if you enter an interview room and the police shut and lock the door behind you, you may be in police custody and entitled to constitutional protection without a formal arrest. The reverse is also true. You may be handcuffed and placed in a patrol car without being in custody for Miranda purposes. For example, police may handcuff you for officer safety while conducting their investigation and without triggering your rights.
What is an Interrogation?
Once it is determined you are in custody, you are protected against police interrogation. Interrogation can be any questioning other than basic identifying information. What is your name? Address? Social security number? Will you provide a specimen of your breath or blood? These are not questions protected by your Fifth Amendment against self-incrimination. However, any questions asked or statements made with the intent of using the response in a criminal prosecution will trigger protection.
If you are subjected to a custodial interrogation and entitled to Miranda warnings, the police must satisfy a couple of requirements. First, an officer must provide the warnings in their entirety. Even minor deviations in the wording may render your responses inadmissible in court. Second, an officer is required to have you acknowledge you understand your rights. Simply reading Miranda warnings from a card is not sufficient. There is no presumption you write, read or speak the language Miranda was given in.
Additional Protections in Texas
In Texas, Code of Criminal Procedure Article 38.22 provides additional protections. An oral statement made as a result of custodial interrogation is not admissible unless a video recording is made of the interrogation.
What Happens if You Are Not Provided With These Protections?
What happens if you are in custody and the police question you without properly advising you of your rights? If you are not properly Mirandized, and are subjected to a custodial interrogation, your responses, even if incriminating, can be suppressed and deemed inadmissible by a court. This means that even if you confess to a heinous crime, that confession may not be used against you because it was obtained in violation of your rights. You will need an experienced criminal defense attorney to present these issues to the court in a Motion to Suppress and fight to have your incriminating statements thrown-out.
Exercise Your Right to Remain Silent
Do not forget that just like you have a constitutional right to not involuntarily incriminate yourself, your right is just as strong to incriminate yourself voluntarily. This is a common mistake people make when arrested and transported to jail. Remember that most police cars, and even officer uniforms, have audio and video equipment. You are likely recorded throughout your entire interaction with police, even when alone inside the patrol vehicle. Yelling “I hate cops” or “I am going to vomit because I am so wasted” or “I wish I had killed that guy” are not statements you want to hear played back for you in front of a jury during trial. Keep your mouth shut, follow the police orders, and let Varghese Summersett PLLC work out the rest in court.
We hope you found this information helpful. For more answers to questions such as “Can the police question me without reading my rights?” please check out our Versus Texas blog.
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