Virginia Criminal Defense Attorney
When you are detained in police custody, you have certain rights granted to you. The primary right that you have is the right granted to you under Miranda v. Arizona if they are going to interrogate you while you’re in custody. Those are:
So those are your main rights after you’ve been arrested and are being subjected to interrogation.
There is no automatic right to a jail call or visitation; that’s in the discretion of the police and the judge. You do, however, have the right to be arraigned on your charges within a reasonable amount of time so that you are not sitting in jail for an extended period of time without seeing a judge.
If the police come to your door and start to ask you questions, you can refuse to answer those questions. You do not have to answer questions put forth by the police to you; you always retain the right to refuse to speak with police. You do not ever have to let police into your house unless they have a search warrant. You do not ever have to consent to police coming in your house. It cannot be used an implication of guilt because it’s your home and they can’t come in just like any other citizen, unless they have a search warrant for your house. That’s something that they have to show to you and something that they have to go to a judge for first before coming into your house.
You don’t have to speak with them, you don’t have to let them in the house and you can politely say, “I don’t want to speak with you. You’re not permitted to come in my house. Thank you.” The only thing that could happen in that scenario is they could still apply for a search warrant, and if they show to a judge that they have probable cause that evidence of a crime is in your house, that warrant will be granted and they can then enter your house once they have that warrant in hand.
There are various levels of suspicion that allow police further intrusion on your liberty and that govern your ability to walk away, But no matter what the basis for their asking you question, you always have a right to refuse to speak with police
If an officer stops you on the street, your rights are dependent upon the amount of evidence they have that you committed a crime and the amount of force they are using to detain you. For example, if you’re pulled over for a traffic violation, you have to pull over and you can’t leave until police are finished investigating the traffic infraction. They can order you out of the car or order you to remain in the car and can request identification. However you do not have to speak with police in that scenario, it is always your right to say that you do not choose to speak with them, so never do you have to speak with them.
If they approach you as you are walking down the street, if they have no reason to believe you committed a crime. You can refuse to talk to them and they have to accept that refusal and walk away. If they believe that you have committed a crime, they can detain you and ask you questions. Once again, you do not have to speak with them, that is always you right no matter what the situation.
Well, custody is a very nuanced legal definition that has been honed by the courts over numerous years, so it is going to be hard to determine whether you’re legally in custody or being detained. There are different levels:
One way to know what level of detention you are under is to try to terminate the conversation and walk away. whether you are being detained or whether you’re in custody, police simply will not allow you to leave. But ultimately, it is a very nuanced determination whether you are under arrest or are being detained, and in court is where you battle it out with the assistance of your attorney. Even if on the street you think you’re free to go and the police say you’re not, the time that will be determined whether the police were wrong, is not on the street but in court where there are sanctions on the police for holding you without reasonable suspicion or probable cause.