You have the right to remain silent - And you should use it!

By: Nicholas Pouladian - Staff Attorney (Community Defense Program)
 
We’ve all seen it in a movie or television show at one point or another – cop arrests suspect, handcuffs them, and immediately starts reading them the ever-famous Miranda rights: 
 
“You have the right to remain silent. Anything you say can, and will, be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?”
 
What happens next is the suspect completely ignores this right, and gives a full confession. But, what if the suspect instead told the officers: “I am invoking my right to remain silent pursuant to my 5th Amendment Right against self-incrimination, and I will not be answering any questions.”? Would things have turned out differently?
 
In this post, we discuss your right to remain silent, what it is and where it comes from, and how you can and should always, always, always exercise this right. It should be noted that along with the right to remain silent, people also have the right to consult with an attorney – this will be discussed in another post.

I HAVE THE RIGHT TO REMAIN SILENT?
Yes, you do! Every person in the United States has the right to remain silent when questioned by the police in a custodial situation. This right comes from the 5th Amendment to the United States Constitution, which states that no person shall be “compelled in any criminal case to be a witness against himself … without due process of law.” This is commonly referred to as “the right against self-incrimination.” And, it means just that. In almost any scenario, no person is required to answer questions put to them by law enforcement.
 
While the right to remain silent is itself quite old, it wasn’t until 1966, after a case titled Miranda v. Arizona, where the Supreme Court of the United States held that law enforcement must specifically inform people of this right prior to conducting a custodial interrogation. And, that is where we see the now-famous “You have the right to remain silent…” speech, and why law enforcement all over the country read that before questioning suspects. The right has always been there, but it was not until 1966 that, thanks to the Miranda ruling, people had to be specifically informed of their right before custodial interrogation by law enforcement.
 
WHY SHOULD I REMAIN SILENT?
Typically, when law enforcement arrests or stops someone, it’s because they believe the person has committed or been involved in the commission of a crime. And, the first thing they are going to do is try to ask questions to get the person to confess or acknowledge that they did something wrong. A common scenario is when someone gets pulled over for speeding, and the trooper asks “do you know how fast you were going?” If the driver responds with a specific number, they may have just admitted to speeding. If the driver responds by saying they’re unsure, it could show that driver was distracted.
 
Another example is getting pulled over for a suspected DWI/DUI, where officers immediately ask “how much have you had to drink tonight?” or “when was your last drink?” If the driver acknowledges they have been drinking, or indicates how long ago their last drink was, this could give the officer cause to conduct further testing and, ultimately, arrest the driver.

It can also involve more serious consequences. Officers are not required to tell a suspect why they are asking certain questions. If law enforcement is investigating a serious crime, such as a murder, they could ask someone “when is the last time you were at the burger joint on University?” That seems like an innocent question, but if the person answers that question – even if they’ve truly done nothing wrong – they may have just made themselves a suspect by admitting they were ever at that burger joint.
 
 
WHEN IS A MIRANDA WARNING REQUIRED?
Contrary to what’s shown in movies or television, where the police immediately read an arrested person their rights while being handcuffed and placed in the squad car, police are not always required to give a Miranda warning. In fact, there are quite a few situations where police are not required to read a suspect their Miranda warning.

So, when is a Miranda warning required? A Miranda warning is required prior to any “custodial interrogation” of a suspect by police. The question, then, is what is considered a “custodial interrogation”?
 
“Custodial Interrogation”:
A “custodial interrogation” is questioning “initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). When a court analyzes this issue, it breaks it down into two parts. First, it determines whether a person was “in-custody”. Second, it looks at whether an “interrogation” occurred. Not every interaction with law enforcement occurs “in custody”, nor is every conversation an “interrogation”. Because of these important distinctions, we break them down further below.
 
What Does it Mean to be “In-Custody” for Purposes of Miranda?:
An interrogation is considered “in-custody” for purposes of Miranda when, based on the totality of the circumstances, “’a reasonable person under the circumstances would believe that he or she was in police custody of the degree associated with formal arrest.’ (citation omitted)” State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010). While no single factor on its own determines whether someone is “in custody” – minus a formal arrest – several factors listed below are used by courts to determine someone was in-custody:

• The suspect was  interviewed at the police station;
• The person was told she/he is the primary suspect;
• Officers physically restrained the suspects freedom;
• The suspect made an incriminating statement;
• The presence of multiple officers during the interrogation; and
• A gun was pointed at the suspect.

 
Similarly, there are factors that could lead a court to determine someone was not in-custody, therefore not requiring a Miranda warning. These include, but are not limited to:

• The suspect was questioned in their own home;
• Police explicitly told a suspect they were not under arrest;
• The suspect left an interview at the police station without being stopped;
• A short time of questioning;
• The suspect was told they were free to leave at any time;
• A non-threatening interview environment; and
• The suspect’s ability to make phone calls.

 
State v. Thompson, 788 N.W.2d 485, 491 (Minn. 2010).
 
The next step is to determine whether an “interrogation” occurred.
 
What is an “Interrogation” for purposes of Miranda?:
After determining whether someone was “in-custody”, the next question is to figure out whether an “interrogation” occurred. Now, most interactions with law enforcement may seem or feel like an interrogation. But, legally, it may not be the case. Again, not every conversation or line of questioning with law enforcement requires them to give a suspect a Miranda warning. That is why it is so important to remember – even if law enforcement is not required to read you a Miranda warning, you still have the right to remain silent – and you should use it!
 
An “interrogation” for Miranda purposes occurs when law enforcement engages in express questioning or other “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689–90, 64 L. Ed. 2d 297 (1980).
 
For example, imagine someone is formally arrested on suspicion of stealing a jar of ice cream. They are handcuffed, told they are the primary suspect, surrounded by officers, locked in an interrogation room at the police station, and told they can’t leave without telling them what happened. Without giving the suspect a Miranda warning, the following conversation occurs:

• Officer – “Look here pal, we know you stole the ice cream – tell us where it is and we might go easy on you!”
• Suspect – “Okay, you win – I stole the ice cream!”

 
In this situation, the officer’s question is specifically designed, and an officer reasonably knows, that they are seeking an answer which will incriminate that suspect. They are trying to get that person to confess to a crime! This would very likely qualify as an “interrogation” which required the reading of the Miranda warning ahead of time, and the statement would likely be suppressed.
 
Now, imagine the same scenario, except the officer asks a different question: 

• Officer – “Hey pal, do you know who won the baseball game last night?”
• Suspect – “Okay, you win – I stole the ice cream!”

 
In this second case, it would be arguable that the confession could be used against the suspect – even though there was no Miranda warning given – because the officer didn’t ask anything about the stolen ice cream. The officer’s question was completely unrelated to the stolen ice cream, and probably not a question reasonably likely to elicit a confession or incriminating response.

WHEN IS A MIRANDA WARNING NOT REQUIRED?
Earlier in this post, we noted that not every interaction with law enforcement requires them to give a Miranda warning. Remember, a Miranda warning is only required prior to a “custodial interrogation.” Here is a list of some situations – though not a complete list –  where a Miranda warning may generally not be required:

• Questions or actions not intended or reasonably foreseeable to elicit an incriminating response;
• Routine Traffic Stops;
  • (i.e., “License and registration, please. Are you driver? Do you know how fast you were going? Did you know your brake-light is out?”)
• DWI Stops:
  • (i.e., “Have you been drinking tonight? When was your last drink? How much did you have to drink?”)
  • (includes requests to take field sobriety tests, preliminary breath tests, and request to take official breath test under the Implied Consent Law).
• On-Scene Questioning:
  • (i.e., “We received a call about a disturbance at this location, what are you doing here? How long have you been here?”)
• Voluntary Statements:
  • Includes to law enforcement or private citizens not working as a government agent
• Statements to Undercover Officers;
  • Undercover officers do not need to tell someone they are an undercover officer
• Booking Questions;
• Statements to Probation Officers;

 
WHAT HAPPENS IF LAW ENFORCEMENT DOES NOT READ ME MY MIRANDA WARNING WHEN THEY WERE SUPPOSED TO?
If law enforcement does not read someone their Miranda warning before conducting a custodial interrogation, the statement – no matter how incriminating (i.e., “I admit it, I did steal the ice cream”) – must be suppressed. That means while it may be used for other purposes (impeachment), it cannot be used against the person as substantive evidence at trial.
 
HOW DO I USE MY RIGHT TO REMAIN SILENT?
This is a critical question, and knowing how to invoke this right when questioned by law enforcement is crucial. The Minnesota Supreme Court has said, “’nothing short of an unambiguous or unequivocal invocation of the right to remain silent will be sufficient to implicate Miranda’s protections.’ (citation omitted)” State v. Ortega, 798 N.W.2d 59, 68 (Minn. 2011). This means that the best way to make sure everyone understands you are invoking your right to remain silent – and to protect yourself – is to be as explicit as possible about your choice to remain silent.
 
Example: Unambiguous and unequivocal statement invoking the right to remain silent

• Officer – “Look, all we want to know is where the ice cream is, we don’t care that you stole it.”

• Suspect – “I am exercising my constitutional right to remain silent. I will be not be giving a statement or answering any questions.” 

 
In this scenario, the suspect has clearly stated they are exercising their right to remain silent. Now, imagine the same scenario, except the suspect gives a different answer:

• Officer – “Look, all we want to know is where the ice cream is, we don’t care that you stole it.”

• Suspect – “Well, I’m not sure if I should be talking to you.”
• Officer – “The more you help us, the easier we can go on you.”
• Suspect – “Okay. I did not steal the ice cream, but I was with the person who did it.”

 
In this scenario, the suspect has only expressed uncertainty about talking to the police – they haven’t explicitly invoked their right to remain silent, and the police are likely free to continue questioning them. When a suspect properly invokes their right to remain silent, law enforcement must cease any further questioning. However, when a suspect does not, police may continue to question the person.

Again, the best way to protect yourself – and to receive the protections of Miranda – is to be as explicit as possible in telling law enforcement that you are exercising your constitutional right to remain silent, and you will not be giving a statement.
 
CONCLUSION
Simply put, if law enforcement has arrested or stopped you for questioning, they are likely trying to build a criminal case against you. Do not help them by answering their questions. Instead, invoke your constitutional right to remain silent.
 
Be firm, be polite, and be smart. Use your right to remain silent!