Am I in Custody ? (Part 2 of “When Do I Have the Right to Remain Silent?”)

We talked about your Miranda rights in a previous blog, and when an officer has to inform you of those rights –> (1) when you are in custody, and (2) before you are questioned. Seems pretty straightforward, right? NOT. Like most things legal, the devil is in the details.

The tricky part is knowing when you are in custody in a legal sense. The legal meaning of this term is (surprisingly?) not so obvious. For instance, being in custody does not necessarily require the words, “You are under arrest.” Also, contrary to another common misconception, you are not necessarily in custody any time you feel you are not free to leave voluntarily. For example:

  • If you are told by a cop to sit in the back of the squad car without handcuffs on, but with the door closed, you may not be in custody — even though it’s pretty clear that you are not “free to leave.”
  • If police come to your home and stand in the doorway asking you questions, but without arresting you or cuffing you, you are not in custody. Although very few people would feel comfortable walking away or closing the door.
  • If you are stopped on the side of the road for a traffic violation, and an officer asks you questions at your car window, you are also not in custody — even though you would surely be arrested and charged (at least !) with resisting an officer if you chose to drive away.
  • On the other hand, if you are handcuffed and in a squad car, or, cuffed and in a closed room with an officer, you are very likely in custody — even if the officer never says the words “You are under arrest.”
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