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Your Silence is Insufficient to Invoke Your Right to Remain Silent

You Must Speak Up to Invoke Your Right to Remain Silent

miranda warning

What is Your Right to Remain Silent?

“You have the right to remain silent.” Everyone has heard this line before. This right stems from the Fifth Amendment protection, which ensures that no person shall be compelled in any criminal case to be a witness against himself.  It seems simple enough, but recent cases demonstrate the discrepancy between public perception of the Fifth Amendment right to remain silent and how the courts interpret that right. Some fear that these recent rulings have eroded the Fifth Amendment because it is no longer enough to simply remain silent. Counter-intuitively, in order to exercise your right to remain silent, you have to break your silence. In other words, use it or lose it.

To ensure you are aware of these protections, law enforcement must provide you with a set of warnings before they begin a custodial interrogation post-arrest. These warnings are called your Miranda Warnings and you have likely heard them before even if this is your first arrest. The wording may vary depending on your location and the police officers involved, but legally sufficient warning should include the following:

  • You have the right to remain silent.
  • Anything you do or say may be used against you in the court of law.
  • You have the right to an attorney.
  • If you cannot afford an attorney, one will be provided for you.
  • You have the right to terminate this interview at any time.

In order to understand the dynamics of how the Fifth Amendment comes into play, you have to understand police encounters dictate different rights, obligations, and options.

The Fifth Amendment of the U.S. Constitution is implicated when the police conduct a custodial interrogation. In other words, you have to be in custody and under interrogation in order for the police to be obligated to give you Miranda warnings. Thus, the first question in determining whether the Fifth Amendment applies in your situation is whether or not you are under a “custodial interrogation.”

What is a Custodial Interrogation?

Custodial interrogation occurs once a person has been taken into custody or deprived of his or her freedom of action and questioned by the police. A custodial interrogation is likely to be found when:

  • there is physical deprivation of the freedom of action in any significant way,
  • the police told the suspect that he or she cannot leave,
  • the police created a situation in which a reasonable person would believe that his or her freedom of movement has been significantly restricted, and
  • there is probable cause to arrest.

When a reasonable person would believe that his or her freedom was restricted to the extent resembling a formal arrest, then the accused is considered to be in custody. (Ramirez v. State, 105 S.W. 3d 730, 738). Additional considerations may include the length of time of the custodial interrogation as well as the physical and psychological isolation of the suspect. (Miller v. State, 196 S.W.3d 256, 265). By its very nature, custodial interrogation by the police involves inherently compelling pressures. The physical and psychological isolation can undermine a person’s will to resist the pressure to speak. (J.D.B. v. North Carolina, 131 S.Ct. 2394, 2400).

To put it simply, if the police make a reasonable person feel as if he or she cannot leave during the questioning, then that person is likely under custodial interrogation and would be entitled to Miranda protections. (Howes v. Fields, 132 S.Ct. 1181, 1189).

To fully understand the distinction between custodial interrogation situations and non-Miranda custody situations, consider the following scenarios.

Initial Stop

A temporary, non-threatening stop such as a traffic stop or a Terry stop does not amount to being in police custody. (Maryland v. Shatzer, 559 U.S. 98, 113). The police do not have to read you Miranda warnings for these initial stops, but you may exercise your right to remain silent.

If you are stopped by the police while driving a car, you must pull over at a safe place as soon as possible. You will have to provide your driver’s license and proof of insurance upon the police officer’s request. Even though your Miranda rights have not kicked in, you are not obligated to answer questions. Although the officer will not tell you this, you may politely decline to answer any further questions.

Your initial contact with the police may be considered a consensual encounter. For instance, if an officer walks up to you without activating his lights or restricting your freedom of motion, he is under no duty to tell you that you can walk away. If the officer makes contact with you, and you don’t know if it is a consensual encounter or if you are being detained, ask if you are free to leave. If it is a consensual encounter, you may walk away. If you are detained, you may decline to answer questions.

Police officers are only required to read your Miranda rights before a custodial interrogation. For every moment up to the moment you are in custody, police questioning is fair game. Where are you coming from? Where have you been? Have you been drinking anything tonight? Is that marijuana I smell? Do you have anything in the vehicle I need to know about? Anything illegal on your person? Questions such as these are completely legal and should be expected during any voluntary encounter, routine traffic stop, or investigation.

Investigative Detention v. Arrest

The line between an investigative detention and an arrest can be a blurry one. While being placed in cuffs and put in the back of a patrol car may seem like the clearest indicator of being arrested, it is not. There are times when a person is placed in a patrol car for officer safety, without being arrested, and there are times when a person is not in handcuffs yet but is under arrest in the eyes of the law. The decision turns on whether a person’s freedom of action has been deprived in a significant way.

You are considered to be in custody when a reasonable person in your position would believe his or her freedom of movement is restrained to the degree associated with a formal arrest. When most people think of being in custody, they think of a formal arrest wearing cold, metal handcuffs and sitting in the back of a squad car. However, any number of things could escalate a situation where you would be in custody without an officer mentioning the word arrest or flashing his shiny handcuffs. For example, if you enter an interview room and the police shut and lock the door behind you, you may be in police custody and entitled to constitutional protection without a formal arrest. The opposite is also true. You may be handcuffed and placed in a patrol car without being in custody for Miranda purposes. For example, police may handcuff you for officer safety while conducting their investigation and without triggering your rights.

The use of handcuffs does not necessarily constitute an arrest or custody. (Ramirez v. State, 105 S.W.3d 730, 739). The facts may still indicate that despite the use of handcuffs, the accused was merely under an investigative detention. The use of handcuffs in Campbell constituted an arrest in light of the fact that the suspect was physically deprived of his freedom of action to the extent that a reasonable person would believe that his freedom of movement had been significantly restricted. The circumstances in Campbell were contrasted with the circumstances in Rhodes v. State, in which the police officer handcuffed the suspect out of safety concerns rather than to make an arrest. In Rhodes, the court held that the safety concern for the handcuffing amounted to a temporary investigative detention rather than an arrest that would trigger Miranda protections.

The bottom line is that if the circumstances suggest that the officer was merely holding the suspect to conduct an investigation, then the encounter would be considered an investigative detention free from Miranda protections. If the circumstances suggest that the officer was executing an arrest, then the encounter would be considered a custodial interrogation requiring Miranda protections.

An arrest is normally considered to be “custody” for Miranda purposes but the post-arrest questioning and resulting statements may still be admissible depending on the circumstances. If the post-arrest statements were given freely, voluntarily, or spontaneously, then the statements are admissible. If the facts indicate that the accused was isolated, intimidated, in custody for a prolonged period, or under coercion, then the statements would not be admissible. (Rodriguez v. State, 191 S.W.3d 428, 447). The requirement of voluntariness of the statement is discussed in more detail below.

What is an Interrogation?

Once it is determined you are in custody, you are protected against police interrogation. Interrogation can be any questioning other than basic identifying information. What is your name? Address? Social security number? Will you provide a specimen of your breath or blood? These are not questions protected by your Fifth Amendment against self-incrimination. However, any questions asked or statements made with the intent of using the response in a criminal prosecution will trigger protection.

If you are subjected to a custodial interrogation and entitled to Miranda warnings, the police must satisfy a couple of requirements. First, an officer must provide the warnings in their entirety. Even minor deviations in the wording may render your responses inadmissible in court. Second, an officer is required to have you acknowledge you understand your rights. Simply reading Miranda warnings from a card is not sufficient. There is no presumption you write, read or speak the language Miranda was given in.

Voluntary Visit with Police

If by the invitation of the police or on your own volition, you decide to go speak with the police either at the station or some other agreed upon location, you are not in custody for Miranda purposes. Further, the mere act of questioning at the police station does not amount to custodial interrogation. (Rodriguez v. State, 191 S.W.3d 428, 447). Generally, when a person voluntarily goes with the police to a certain location, even if he or she knows or should know that the police suspects him or her of being involved in a crime, that person is not in custody for Miranda purposes. If there was no threat by the police of taking the person forcibly, and instead the person is acting merely upon the invitation or request of the police, that person is acting voluntary and cannot be considered to be in custody. (Miller v. State, 196 S.W.3d 256, 264). This is why detectives often ask you to come down to the station, instead of forcing you to go with them. They know they don’t have to read you your Miranda warnings, and you are therefore more likely to talk without asking for your lawyer or invoking your right to remain silent.


According to the Supreme Court, questioning a prison inmate does not always constitute custodial interrogation for the purposes of Miranda. The lawful imprisonment upon conviction of a crime does not create the coercive pressures that Miranda is designed to protect against. The prison essentially becomes the inmate’s home. Once the questioning is over, the inmate is released back into the general prison population and return to his or her normal routine. This scenario is different from a typical Miranda custody situation because unlike someone who is isolated with the accuser with restricted movement, the inmate is simply living amongst the other inmates and guards.

According to the Supreme Court, an inmate serving a prison term does not experience the initial shock of someone getting arrested. Unlike the inmate serving his or her term, the person who is suddenly taken away from their normal environment and placed in police custody during an arrest may feel coerced to answer questions given the sharp and abrupt change.

Further, unlike a police officer that interrogates a suspect in custody, the prison interrogator has no power to increase the amount of time on the inmate’s sentence.

Whether you agree or disagree with the Supreme Court, prison interrogations very often are not considered as “custodial” to trigger Miranda protection.

Police Obligation to Read Miranda Warnings

Without the prerequisite Miranda warnings, a statement made by the accused as a result of a custodial interrogation is not admissible. However, if there is no custodial interrogation or if the statement was voluntary, then the statement is admissible despite the lack of Miranda warnings. (Rodriguez v. State, 191 S.W.3d 428, 447-48). However, you can still invoke your right to remain silent in a non-custodial interrogation situation even though the Miranda warnings were not given.

If you were under custodial interrogation, the police have an obligation to read you Miranda warnings. If the police fail to read you Miranda warnings before conducting the custodial interrogation, the statements you made are inadmissible under the Fifth Amendment. If you were read your Miranda warnings but still chose to speak, those statements are admissible because you have effectively waived your right to remain silent by speaking.

Invoking Your Fifth Amendment Right to Remain Silent

If you were in fact under custodial interrogation and the police gave you the requisite Miranda warnings before the questioning, the next question to address is whether or not you verbally and unambiguously invoked your right to remain silent under the Fifth Amendment.

Waiver of Fifth Amendment Right to Remain Silent

In a recent U.S. Supreme Court ruling, the Court held in a 5-4 decision that in order to invoke the right to remain silent, one must do so unambiguously. Despite the fact that the defendant remained silent for nearly three hours during the police interrogation before answering a few questions towards the end, the Court ruled that he failed to invoke his right to remain silent because he did not actually state that he wanted to remain silent. The mere act of remaining silent on its own was insufficient to establish that the suspect invoked the Fifth Amendment right to remain silent. The Court reasoned that mere silence is ambiguous because the suspect might be taking the time to think of a good explanation or to consider options before speaking. (Berghuis v. Thompkins, 560 U.S. 370, 382)

In another case, Salinas v. Texas, the Supreme Court requires that the right to remain silent be invoked verbally. (Salinas v. Texas, 133 S.Ct. 2174, 2179) The defendant volunteered to come down to the police station to discuss a homicide case with the police. Because the defendant came on his free will and was not under arrest, the police did not read him Miranda warnings. When asked whether his shotgun would match the shells found at the scene of the crime, the defendant remained silent and reacted uncomfortably.  The uncomfortable behavior together with the silence was used against him in a trial and he was found guilty of murder.

The Supreme Court rejected the Fifth Amendment argument claiming that the defendant should have invoked his right to remain silent once confronted with that question.  The Court reasoned that the privilege against self-incrimination is not self-executing and one must claim it in order to get its protection. A witness does not invoke the protection by standing mute. A suspect who remains mute has not done enough to put the police on notice that that he is relying on his Fifth Amendment protection.

However, to cease a custodial interrogation, the suspect only needs to declare a desire to terminate. While it does need to be an unambiguous declaration, there is no particular phrase required. (Luna v. State, 301 S.W.3d 322)

In short, if you verbally and unambiguously invoked the right to remain silent, your statements and/or silence cannot be used against you in court. If you failed to invoke your Fifth Amendment right verbally and unambiguously, then you have effectively waived your right to remain silent. If you waived your right to remain silent, then the next question is whether or not you did so knowingly and voluntarily.

Additional Protections in Texas

In Texas, Code of Criminal Procedure Article 38.22 provides additional protections. An oral statement made as a result of custodial interrogation is not admissible unless a video recording is made of the interrogation.

What Happens if You Are Not Provided With These Protections?

What happens if you are in custody and the police question you without properly advising you of your rights? If you are not properly Mirandized, and are subjected to a custodial interrogation, your responses, even if incriminating, can be suppressed and deemed inadmissible by a court. This means that even if you confess to a heinous crime, that confession may not be used against you because it was obtained in violation of your rights. You will need an experienced criminal defense attorney to present these issues to the court in a Motion to Suppress and fight to have your incriminating statements thrown-out.


When encountered by the police, it is important to understand when you are under custodial interrogation and when you are not; when the police are obligated to give you Miranda warnings and when they are not; when and how your Fifth Amendment right applies and when it does not; how to properly invoke your right to remain silent and under what circumstances is a waiver of Fifth Amendment rights effective. Generally, the best course of action when confronted by the police is to be calm and polite, verbally and unambiguously invoke your Fifth Amendment right to remain silent, and ask to speak with an attorney. Otherwise, you may find yourself inadvertently giving up your Fifth Amendment protection by providing admissible, self-incriminating evidence against yourself.

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