What if the Police Didn’t Read me my Rights?


“Custody plus Interrogation minus Miranda warnings equals an inadmissible confession!”

If you have been arrested and made an admission or confession to the police, the government will use your statement in support of its charges against you. Many suspects believe that they will garner the sympathy of the police if they just “come clean.” Little do they know how much they are incriminating themselves in the process.

Fortunately, depending on the facts surrounding the collection of your statement by the police, we may be able to suppress or “throw out” your statement so that it is not used against you in your case.

Let’s review the “mechanics” of the famous “Miranda” case, which affords the suspect the ability to challenge the use of his statement if the police violated his constitutional rights.

What are my Miranda rights?

The court in the case of “Miranda v. Arizona” made clear that, before the police can interrogate you, the police must give you the following, very specific warnings:

  1. you have a right to remain silent,
  2. anything you say can be used against you in court,
  3. you have the right to the presence of an attorney, and
  4. if you cannot afford an attorney, one will be appointed for you at no expense to you.

The “Miranda” case pays honor to your right against self-incrimination. This right is enshrined in the Fifth Amendment to the United States Constitution. This amendment says you cannot be forced to say something that “incriminates” or hurts you.

The police did not read me my rights. Does that mean my case gets thrown out?

No. If the police did not read you your rights before interrogating you, your case is not automatically thrown out. What does get thrown out is the statement being used against you if your lawyer prevails in a motion to the court to exclude or throw out your statement.

However, if the prosecution’s case hinges entirely on your confession or statement, and the court agrees that your statement cannot be admitted into evidence, your case will get thrown out because the evidence is “dispositive.” In other words, but for the confession, the prosecution has no case.

When do the police have to read me my rights?

Your Miranda rights are “triggered,” in other words, must be read to you when the following two “factors” are present.

Custody: For your “Fifth Amendment right against self-incrimination” to apply, you must be in custody. Most people think that you are in custody only when you are in handcuffs, or sitting in a jail cell or a police interrogation room. But that is not always the case.

The traditional test for when a suspect is considered to be “in custody” is when a “reasonable person in the suspect’s shoes” does not feel free to leave. The other test is if the suspect’s freedom of action has been deprived “in any significant way.” This means that the suspect does not have to be in handcuffs. The suspect’s hands can be free, but if he is surrounded by police officers — whether he is sitting in his or her car, on his couch or just standing outside – and the fictional “every man” invented by the law (the famous “reasonable person”) does not feel free to leave in such a scenario, the suspect is “in custody.”

However, more recent cases have set out certain more particular “factors” to look at in a case before the suspect can be considered to be “in custody.”

  1. The language used to summon the suspect: Did the police speak to you “gently?” Or did they speak in a very authoritative or even hostile manner?
  2. The extent to which the suspect is confronted with evidence of guilt: Did the police ask you “routine” questions? For example, did they ask you “booking” questions, such as your name, address, employment, and other “mundane” facts? Or did they confront you about the crime you are suspected of having committed?
  3. The physical surroundings of interrogation: Were you in an outdoor setting or a large room with many doors and exits? Or were you confined to a small space, such as an office, interrogation room or the back of a police car?
  4. The duration of the detention: Did the police ask you questions for a few minutes? Or did they press on with questions for a considerable amount of time?
  5. The degree of pressure that is applied to detain the suspect.

Ideally (for the government), the prosecutor will argue that the police used respectful language to talk to you, that the police did not confront you with evidence that tied you to a crime, that they did not confine you in a small space, that the questioning lasted a relatively short time and that they applied little or no pressure to get you to talk.

Our Los Angeles Criminal Defense Attorneys, however, will look very closely at the police reports and/or evidence of your “confession” or “admission,” including video or audio footage of any police interviews with you. Based on the facts and circumstances in your case, we may be able to argue that the way the police treated you (harsh questions, confrontation with evidence, confined surroundings, lengthy questioning, and application of pressure) lead to evidence that you were “in custody.”

Okay, we are one step closer to “triggering” the “Miranda” warnings.


The police must have actually “interrogated” you. However, does not include just any type of question. The type of question that was asked is significative. Mere “booking” questions, or questions normally attendant to arrest and custody, do not usually signify interrogation. “The words…on the part of the police must be ‘reasonably likely to elicit an incriminating response from the suspect.” (This comes from a well-known case called Rhode Island v. Innis).

In other words, the question that the police asked you had to be directed at getting you to say something that would get you in trouble.

However, if you made a confession or statement in response to something other than a “question,” and your words are being used to incriminate you for a crime, do not despair: the statement may still be able to get thrown out, again depending on the facts of your case.

A very famous case known to lawyers as the “Christian Burial case” lays out an example of what this means:

A man, “Williams” was arrested for the murder of a 10-year-old girl in Des Moines, Iowa. Two police officers took him on a car drive back to Des Moines, but agreed not to ask him questions during the trip.

During the trip, one of the officers, who knew that Williams had been a mental patient and was very religious, said: “I want to give you something to think about while we’re traveling down the road. . . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is…the parents of this little girl should be entitled to a Christian burial for the little girl…” Sure enough, Williams disclosed the location of the girl’s body and he was tried and convicted of murder. The Supreme Court heard the case and determined that the police had interrogated Williams, even though they never asked him a question!

Whether the police asked you questions to try to get you to admit to a crime, or whether they made a statement to you that was reasonably likely to get you to make a confession, our Los Angeles Criminal Defense Lawyers will review the evidence in your case. Based on the facts surrounding your confession or admission, we may be able to successfully motion the court to throw out your statement.

There you have it:

“Custody plus Interrogation minus Miranda warnings equals an inadmissible confession!”

Contact a Los Angeles or Orange County Criminal Defense Lawyer today at 310-375-5858 for a free case review.