Everyone is familiar with the term “Miranda rights.” This right derives from a 1966 U.S. Supreme Court case, Miranda v. Arizona. The Miranda court held that the Fifth Amendment to the U.S. Constitution, which protects someone accused of a crime from self-incrimination, includes protections for suspects who have been arrested for a crime. Specifically, the court held that when a suspect is arrested, the suspect must be advised that:

  • The suspect had a right to remain silent,
  • anything the suspect said could be used against him or her in a court of law, and
  • the suspect has the right to an attorney.

While I have discussed Miranda rights in this blog in earlier posts, this post addresses when law enforcement is required to give a Miranda advisement. A Miranda advisement is only required if a suspect is in custody. If the police place the suspect under arrest, the suspect is clearly in custody. But it is not always so clear cut. As I always advise, if you are arrested or if you believe you are in custody (as discussed below), it is always advisable to invoke your Miranda rights and contact an attorney immediately – even if (and especially if) you know you are innocent.

When Custody is an Arrest for purposes of Miranda

Question: Is Miranda required for a person subjected to law enforcement question who has not been placed under arrest?

The U.S. Supreme Court held that custody without a formal arrest can be understood to be when the suspect is “restrain[ed] [from] freedom of movement [to] the degree associated with a formal arrest.”  California v. Beheler , 463 U. S. 1121, 1125 (1983) (per curiam).).What does this mean?

The best way to explain is by way of a hypothetical example:

The police consider John a person of interest in a recent robbery. They respond to John’s place of work in Irvine and ask him if he would come in for some questions about a recent crime in the area. The officers don’t tell John he is a person of interest or otherwise explain why they want to question him.  John is in a precarious position; he is afraid to decline the officers’ request in front of his boss and co-workers, so he agrees. He is then placed, without restraints, in the back of the police car. The police take him to the station and two detectives ask him questions in a closed room. John does not know if the door is locked or not and he is not restrained, but he has a reasonable belief that he cannot get up and leave. He even asks at one point if he can leave; the detectives don’t answer his question but rather continue with their questioning. John makes a few statements that turn out to implicate him in the robbery. Nonetheless, the detectives end the questioning and drive John back to work. Later that day, officers arrive at John’s home in Costa Mesa and place him under arrest.

John may have an argument for suppressing his incriminating statements because he made those statements while in custody without receiving a Miranda warning.

The important question is whether John was in custody.

The courts are directed to consider several factors in determining whether a suspect was in custody. No one single factor is determinative, but these factors are considered in total to determine whether a reasonable person would have believed he or she was not free to leave or to  end the questioning. The factors the courts are directed to consider are:

  • Who initiated contact? The police or the person being questioned? If it was the police, did the person being questioned voluntarily agree to be questioned by law enforcement?
  • Was the questioning conducted because the person being interviewed a person-of-interest or a witness?
  • Where did the questioning take place?
  • Did the police inform the person being questioned that he or she was free to leave at any time?
  • Was the person being questioned aware or have a reasonable belief that he or she could leave at any time?
  • Were there restrictions on the person’s freedom of movement? (Examples, being handcuffed or in a locked room)
  • How long did the questioning last?
  • How was the questioning conducted? Was it aggressive, persistent, or intimidating, for example.
  • Was the person being questioned ultimately arrested?

(People v. Saldana (2018) 19 Cal.App. 5th 432.)

John has a strong, albeit not conclusive, argument that he was in custody and should have received a Miranda warning. His attorney will surely file a motion to suppress his statements.

Orange County criminal defense lawyer William Weinberg is committed to achieving the best possible outcome for his clients. He is available for a complimentary consultation where he will review your case and offer his assessment of your best defense. You may contact him at his Irvine office at 949-474-8008 or by emailing him at