Miranda Rights and Custodial Interrogation

          Fifth Amendment rights are only afforded in the case of custodial interrogation. That means if a person is in any way being held by police for the purposes of an investigation, they must be informed of their right to protection against self-incrimination. If a person is not in police custody, the so-called Miranda warnings do not have to be given. See John L. Worrall, Criminal Procedure: From First Contact to Appeal (3rd ed. 2010). There is a fine line between what constitutes police custody, and this does pose some problems in the courts. However, the precedent of Miranda is clear about the custodial interrogation issue. The ruling in Miranda v. Arizona (384 U.S. 436 ([1966]) defines the right to protection from self incrimination under the Fifth Amendment by dismissing from court record any evidence or confession obtained from“…custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” When the police conduct a search and an individual consents to that search, there is no act of police custody taking place. The difference is that consent searches are minimally covered by protections under the Forth Amendment rights of privacy in that once a person gives up that right to protect their personal space, no justification is needed for a search to take place. This voluntary action is what separates Fifth Amendment Miranda rights during a custodial situation, and a consent search.
          In my opinion, even though the Supreme Court stated in United States v. Drayton (536 U.S. 194 [2002]) that it is “unrealistic” to expect police officers to inform people that they may deny a request for a search if they are not being detained, there is little difference expect in the semantics of the Constitutional wording. In practice, I do not think it would so an undue burden on an officer to say “you are under no obligation to consent, but may we search your vehicle?” It does seem dishonest and I believe many people may consent to searches that do incriminate themselves and there I don’t see too much of a deviance from the self-incrimination clause of the Fifth Amendment. Miranda warnings are only applicable when there is a formal action taken to detain a person. They do not have to be “under arrest,” but if at any point police hold an individual for questioning, they must give them the opportunity to protect themselves during interrogation.