There is a fundamental misconception of what "Miranda warnings" are and when an officer must inform an arrested individual of his or her "Miranda Rights." Being a criminal defense attorney it is a guarantee that somebody will come into my office, at the least once a month, and tell me that the charges against them need to be dismissed since the arresting officer did not inform my client of his or her "Miranda rights" at the time of arrest. There is a look of shock on my clients face when I inform him "the officer did not have to give you Miranda warnings." In the public eye the misconception is so great that I have had potential clients not hire me because they refuse to believe that an officer does not need to read an individual's rights each time that the officer arrests somebody.

In the case of Miranda vs. Arizona the Untied States Supreme Court held that "in custody interrogation is inherently coercive." The court held further that so as to make sure that all statements by an individuals in custody were of their own free will, the Supreme Court held that a person who is in custody has to be advised of certain rights. The Miranda decision does not simply parrot the 5th Amendment, rather it states that an individual must be informed of certain rights, including 5th Amendment rights, when being questioned while in custody.

So there are two requirements that must be met before an officer must advise an arrestee of his or her Miranda warnings. The 1st requirement is that an individual has to be in custody. The 2nd requirement is that there must be questioning. Both must be present before Miranda warnings are required.

In case you are arrested and not questioned, the arresting officer does not have to advise you of your Miranda rights. If the officer questions you before you are taken into custody, the officer does not have to advise you of your Miranda rights. In the end, the remedy for a 5th Amendment violation is not to dismiss the case, but rather to suppress any statement which was subject to custodial interrogation without the benefit of Miranda warnings. However, many times, the suppression of a statement will eliminate much of the State's evidence and sometimes contributes to a dismissal.