A new question on a legal question board caught my attention.

My son was arrested for driving on a suspended license and taken to jail. I would like to know if he should have been read his rights before being arrested.

I haven’t had a chance to answer this question before, but we see it a lot in traffic and DUI related incidents. The answer is — did your son make a statement to the police? The “Miranda warning” (Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny) is the technical term for the “rights” you were speaking about. (Those are the rights you are speaking about — the right to remain silent — anything you say can and will be used against you, the right to an attorney before speaking to police, if you cannot afford an attorney one will be appointed…) A mere arrest does not require the reading of any special rights. However, if your son made a statement to the police, and the police had not warned him that a statement could be used against him, then most likely that statement can get suppressed.

The rule of thumb is this — an arrest without interrogation = no need for special warnings. An arrest + questioning = warnings must be given, and understood, or statements can be suppressed.

Now there is an interesting exception to this that folks involved with petty theft should be aware of. We see this a lot in shoplifting cases. If you make a statement to a store detective or private investigator, no warning is necessary and suppression is not an option. This is because the constitutional protection against self-incrimination and the right to counsel only apply when you are dealing with the State. A private guard (such as a security guard, store guard or mall cop) is not a government employee, and you have no rights as to statements made to them. Rule of thumb — no matter how bad the crime may appear, keep your mouth shut. Be polite, and courteous, but do NOT admit to anything.

If you have additional questions about criminal procedure, give us a call! We would be glad to discuss your case in more detail.

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