Facing Criminal Charges?

Your Reputation, Finances And Freedom Are On The Line.

Anthony Palumbo


Cranford, NJ





Know Your Rights When Interacting With Police Officers

Imagine this scenario: After responding to a report of a party involving teenage drinking, New Jersey police detained a number of the partygoers to determine which teens were drinking alcohol. The police asked the teens to lineup and then proceeded to walk down the line, sniffing the breath of each teen to see if they could smell alcohol. Before officers reached one teen, however, he admitted he “only had one” drink. Based on that admission, the teen was arrested and eventually convicted of underage drinking.

If you were the teen, would you have felt like you were free to leave after the police asked you to participate in the sniff test? The teen and his criminal defense lawyer didn’t think so, and they challenged the teen’s conviction on the basis that he was in police custody at the time he made the admission, and as such, he should have been given the Miranda warning informing him that he had the right to remain silent, that anything he said could be used against him in court and that he had the right to an attorney.

A New Jersey court of appeals agreed and overturned his conviction, ruling that the teen was in fact in custody (not free to leave) and that he should have been given those familiar warnings. The failure by police to read the Miranda warnings to the teens, the court reasoned, meant that the teen’s admission of underage drinking should be suppressed and not used against him in court proceedings.

What Are Miranda Warnings?

Whether from television, movies, music or knowledge of significant U.S. Supreme Court cases, the concept that police must read certain rights to people taken into custody is deeply ingrained in American culture. Ask almost anyone what rights people have when they are detained by police, and invariably some form of the Miranda warnings are recited.

Stemming from the U.S. Supreme Court case Miranda v. Arizona, the Miranda warnings are supposed to be read by police to people who have been taken into custody or arrested before the police can begin questioning or an interrogation. The precise form of the Miranda warnings differs from state to state, but generally all Miranda warnings must remind people of these things:

  • The right to remain silent
  • That anything they say may be used against them in court proceedings
  • The right to have an attorney present during questioning
  • That an attorney can be appointed if they cannot afford one
  • The right to remain silent can be invoked prior to or during an interrogation, at which time the interrogation must cease
  • The right to an attorney can be invoked prior to or during an interrogation, at which time the interrogation must cease

Police must read the Miranda warnings at the appropriate time. If they fail to read the warnings to people prior to conducting custodial interrogations, anything said during that questioning may be excluded from court proceedings. Further, if information gained during these interrogations leads to important evidence, that evidence also may be excluded from court proceedings.

When Must Miranda Warnings Be Given?

Although most people are familiar with the Miranda warnings, there may be confusion about exactly when police must read the warnings. The easy answer is when a person is arrested or in custody (when people’s freedoms are limited by police), but the warnings do not need to be read in every situation when people are questioned by police, such as during a routine traffic stop.

  • Miranda warnings must be given before questioning or interrogating people who are taken into police custody or are under arrest.
  • Police officers can arrest or detain people without reading them the Miranda warnings – the warnings only must be given when a reasonable person would think he or she is not free to leave and if he or she will be questioned or interrogated.
  • Miranda warning rules do not apply to statements made prior to arrest or to statements made spontaneously (not during interrogation in response to a police question).
  • Police may question witnesses and other people not in custody without reading them the Miranda warnings.

In the case of the New Jersey teen, the court of appeals ruled that the teen was in police custody and that the sniff test constituted questioning. Therefore, the teen must have been read his Miranda rights before it began. Since police did not give him the Miranda warnings, the evidence they gathered could not be used against him in court.

Your Rights During a Traffic Stop

One of the most common interactions people have with police is traffic stops. In these situations, police will not remind you of your rights because, in theory, you can always drive away, so you are not in police custody. However, drivers’ rights may come into question when police search their vehicles.

In many circumstances, police are not permitted to search drivers’ vehicles during traffic stops. For this reason, police often ask drivers for permission to conduct a search of the vehicle. If drivers consent, police may search the vehicles without a warrant or even a reasonable suspicion that the drivers are trying to hide something illegal or dangerous.

However, police may search drivers’ vehicles even without their consent in certain circumstances. When there is a “reasonable, articulable suspicion” that drivers are hiding something illegal (like drugs) or dangerous (like a gun) in the vehicle, police may search it without consent or a warrant. Reasonable suspicion may be ascertained from drivers’ words or actions or by observations made by other police officers.

Police also may search drivers’ vehicles if drivers leave suspicious items in plain view. Called the plain-view doctrine, items left in areas that police officers can see while looking in the windows of the vehicle can give police reasonable suspicion to conduct a search.

Also, if drivers are arrested as a result of a traffic stop, police may conduct a search. Called an inventory search, this is usually performed after the vehicle is towed away.

Importantly, if drivers are uncomfortable with an officer’s questions during a traffic stop, drivers may remain silent and tell the officer they would like the guidance of an attorney. At that point the officer should stop questioning the driver.

If you have questions about your rights during a traffic stop or after being arrested, contact an experienced criminal defense attorney.