Interviewer: Let’s talk about I guess the relationship with Miranda rights and drug cases. Where and how do they come into play?

A Right to Remain Silent

Brian Geno: Miranda rights come from a case called Miranda v. The State of Arizona. It’s a Supreme Court case that outlined the law which now appears on every TV show or crime TV show. That is you have the right to remain silent. Anything you say can and will be used against you in the court law. You have the right to an attorney and to have him present when you’re being questioned. Those are the Miranda rights.

People often think that if they didn’t get read their Miranda rights that everything that the police officer did is going to be excluded in court and that they’re going to get off. Sometimes that’s true. However, Miranda rights apply when a person is in custody. That is they’ve been arrested.

Miranda Rights Only Protect Statements Made When You Are in Custody

If you’re on the side of the road and they pull you over for speeding, you’re not in custody under the law. You’re not under arrest. They don’t have to read you your rights, your Miranda rights, but once you’re arrested, if they’re going to question you, then they have to read you your Miranda rights.

If you’ve been arrested and I will use the example I gave a minute ago about being forced to sit on the side of the road while they search your car. If you’re over there sitting on the side and they never ask you a single question, then in that circumstance, they would not have to read you your Miranda rights.

On the other hand, if you’re sitting over there on the side of the road and they ask you where the marijuana is, they ask you where did you get the marijuana, where you did you buy it, are you going to sell it, those are all questions which could cause you to be convicted of a crime. Those questions are things that you have the right to remain silent about. Those are questions that should have been preceded by the Miranda rights.

The answers you give to those questions can be excluded simply because the officer did not read you Miranda. That’s Miranda.

If You Didn’t Hear the Miranda Rights, It Doesn’t Mean the Case Will Be Dismissed

Interviewer: Do you ever get where people come in and say, “Hey, I wasn’t read my Miranda rights,” and they think that the case is going to get dismissed?

Brian Geno: People do that all the time. People say, “I wasn’t read my Miranda rights.” That incidentally is a common misconception. They’ll say, “I wasn’t read my Miranda rights, so therefore I’m sure you can do something with that, right Mr. Geno?” It’s possible I can—but only in the right circumstances. It has to be when they’re in custody and it has to be when they are being questioned.

When a client says, “I wasn’t read my Miranda rights,” with most lawyers, that’s their clue to ask a lot more questions so that they can figure out if it’s really going to be a defense. About half the time, I’ll wind up telling my client that they don’t have an objection to the evidence under Miranda because of the way it happened.

Then the other half of the time, I will tell them, “It’s a possibility. Let’s try it.” Then some of the time it actually works. The courts are very sensitive about allowing evidence to be excluded because Miranda was not read. They’ll look at it very closely.