Monday, October 29, 2012

WHEN DO I GET MY MIRANDA RIGHTS? POLICE CUSTODY DEFINED

You’ve seen the police shows. After cornering the suspect, the cop begins to read the Miranda rights: “You have the right to remain silent…. You have the right to an attorney….”

But when is the officer required to read you your rights? Before asking your name? When you are stopped for a traffic ticket? When you are handcuffed and put in a squad car?

The Miranda Supreme Court case requires that these warnings be given when an individual is in custody and before questioning begins. In other words, if a reasonable person in your circumstances would believe that they are not free to go, then the police must read the rights before further questioning. So, how do you know if you are free to go?

Unfortunately, there are no hard and fast rules, but there are guidelines. Whether the police have you in custody can depend on the facts of your case. Illinois statute defines custodial interrogations as “any interrogation during which (i) a reasonable person in the subject's position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.” 725 ILCS 5/103-2.1(f).

The Illinois Supreme Court further defined whether a person would feel free to go:

“1) the location, time, length, mood and mode of the questioning; 2) the number of police officers present during interrogation; 3) the presence or absence of family and friends of the individual; 4) any indicia of a formal arrest procedure, such as the show of weapons or force, physical restraining, booking or fingerprinting; 5) the manner by which the individual arrived at the place of questioning and 6) the age, intelligence and mental makeup of the accused.”

(People v Harris citing People v Slater).

If you are stopped by the police and unsure if you want to answer questions, ask “Am I free to go?” If the answer is no, then it’s time for the officer to read your rights. Once you are in custody, be sure to say: “I want to remain silent. I want an attorney.” Otherwise, the questioning can continue. See our related post: Your Right To Remain Silent Under New Supreme Court Law.

If you have questions about this or another related criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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