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“I was employed at a state corrections facility. When I got charged with Felonious Assault and Kidnapping, my job put me on unpaid leave. Greg Robey fought hard for me and the State agreed to dismiss all the felony charges against me. I am now back on the job because of the hard work of Mr. Robey.” -T.J., Cleveland, Ohio

Understanding When You Are “in Custody”

Under the Fifth Amendment protections against self-incrimination, which were famously outlined by the Supreme Court’s Miranda v. Arizona decision, you have the right to remain silent while in custody and the right to have an attorney present during questioning. However, these protections are only triggered where you are “in custody,” meaning when a suspect is significantly deprived of his or her freedom of action.

There have been many important cases regarding Miranda rights since the decision was made, including;

  • Missouri v. Seibert: The Supreme Court ruled that giving the Miranda warnings after a suspect had already made an incriminating statement violates the Fifth Amendment. (542 U.S. 600).
  • State v. Gumm: The Court ruled that law enforcement is not required to advise a suspect of his or her Miranda rights until “questioning rises to the level of a ‘custodial interrogation.’” The Court explained that the test for determining whether someone is in custody is whether, “under the totality of the circumstances, a ‘reasonable person would have believed that he was not free to leave.’” (1995-Ohio-24).
  • State v. Farris: During a traffic stop, the officer took the Defendant’s keys, instructed him to get in the cruiser, and told him that his car would be searched because of the scent of marijuana. The Court ruled that the officer had placed the Defendant in custody, because he was not free to leave, and any reasonable person in the Defendant’s position would have believed he was in custody. (2006-Ohio-3255).

An officer would like you to feel as though you are in custody, without you technically being in custody. That way, you feel obligated to stay and answer questions, without being reminded that you have the right to remain silent. When being questioned by a police officer, ask him or her if you are free to leave. If the officer says no, demand to speak to an attorney and state unequivocally that you are invoking your right to remain silent.

For strong representation, contact a knowledgeable Ohio criminal defense attorney who can protect your rights.


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