H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Criminal Law – Am I In Custody? Understanding Your Miranda Rights

By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney

Colorado Criminal Law - Am I In Custody? Understanding Your Miranda RightsColorado Criminal Law – Am I In Custody? Understanding Your Miranda RightsUnderstanding your Miranda rights is as simple as analyzing two questions: Were you in custody? If yes, were you questioned by law enforcement?

Both questions have to be answered in the affirmative before your so called “Miranda rights” attach the situation.

Because, in most instances, it will be obvious that you are being questioned, this article addresses the more complex of the two questions:

Were you “in custody?”

The danger of making incriminating statements during a police investigation is real. The only protection the target of an investigation has is to move to suppress incriminating statements because they were obtained in violation of the Miranda rule.

A Judge’s determination that a suspect’s incriminating statements were obtained in violation of his Miranda rights turns on whether:

1. You were in police custody


2. You were subjected to interrogation when he made those statements.

The Miranda Rule: The Law

The Fifth Amendment to the United States Constitution provides that no person:

” shall be compelled in any criminal case to be a witness against himself.”

  U.S. Const. amend. V.

The Miranda Rule (Miranda v. Arizona, (1966)) – protects your Fifth Amendment Rights. To protect these rights the police are required, if you are (1) in custody and (2) are questioned – to advise you of your Miranda Rights – (which we all have memorized by this point.)

In order to protect this right, police must provide a suspect in custody with certain warnings before subjecting him or her to interrogation. Incriminating statements obtained without such warnings are subject to suppression in a later Motion to Suppress Statements hearing.

To determine whether a suspect was in custody during an interrogation, the Trial Court asks this question:

Would a reasonable person in the suspect’s position have felt ” deprived of his freedom of action to the degree associated with a formal arrest.”

This is a fact intensive and objective inquiry made on a case-by-case basis and it is made (see below) in light of “the totality of the circumstances.”

What follows is a fairly comprehensive, but not exhaustive, list of factors in determining whether a suspect is “in custody” during police interrogation. The relevant factors include:

(1) the time, place, and purpose of the encounter;

(2) the persons present during the interrogation;

(3) the words spoken by the officer to the defendant;

(4) the officer’s tone of voice and general demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

(7) the officer’s response to any questions asked by the defendant;

(8) whether directions were given to the defendant during the interrogation; and

(9) the defendant’s verbal or nonverbal response to such directions.

(10) whether the officers told the defendant he was free to leave.

(11) whether the officers used a degree of force traditionally associated with custody and arrest or force more typically associated with a brief detention.

Colorado Trial Judge Balances All Of The Above Factors Utilizing A “Totality Of The Circumstances” Test

A Colorado Motion to Suppress hearing focusses on all of the possible factors to determine whether your rights to remain silent were violated.

The “test” applied to the facts of the motion to suppress makes sense – it is called “the totality of these circumstances test.”

If a Judge finds that a “reasonable person,” in your circumstances, would have felt deprived of his freedom of action in a manner similar to a formal arrest then you will be found to have been “in custody” for the purposes of the Fifth Amendment.

If, after this fact intensive analysis of your case, it is found that you were subjected to “custodial interrogation” without being advised of his Miranda rights, your statement must be suppressed and cannot be used against you at your trial.

Colorado Criminal Law – Am I In Custody? Understanding Your Miranda Rights

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

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A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 35 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

Putting more than 35 years of Colorado criminal defense experience to work for you.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Am I In Custody? Understanding Your Miranda Rights.