FREQUENTLY ASKED QUESTIONS
An Arvada woman questioned: They didn’t read me my rights. Does that mean they have to dismiss my case?
No. Miranda rights are actually a warning required by the United States Supreme Court in the classic case of Miranda v. Arizona to help you protect your right to remain silent, as was given to you by the United States Constitution Fifth Amendment, hence the phrase “taking the Fifth.”
Your right to remain silent is not absolute, and it is a right that you can give up or surrender. The Fifth Amendment only protects you from being compelled (forced or coerced in some way) by the State (the police) to speak. A Miranda Advisement is a warning the police are required to give you if you are in police custody of a level approaching a formal arrest, even if you have not been told you are under arrest. This advisement must be given before there is an interrogation. However, if you have not been arrested or are not being interrogated, the police are not required to read you your rights.
Even if you have been arrested and the police are asking you questions without having read you your rights, the police or the courts are still not required to dismiss the case. The words you have said must be suppressed, but the evidence obtained as a result of those words does not.
A Denver man asked: Can they search my car because they smelled the odor of marijuana?
The answer used to be YES. However, with the passage of Amendment 64 in Colorado, the answer is less clear.
Even during the days of medical marijuana, the fact that medical marijuana was legal to possess and consume made the issue of whether odor automatically gave probable cause to believe that the person was violating the criminal laws of the State of Colorado.
Now, with the passage of Amendment 64, where the use, possession, and consumption of marijuana is Constitutionally-protected in Colorado, the odor would not permit any police officer or any other person reasonably to believe that the odor was evidence of the commission of a crime. Also, because active THC leaves the bloodstream very quickly as it is metabolized, the odor of marijuana – whether burned or unburned – should not give rise to the belief that there have been any criminal laws violated. There may be a suspicion, but a suspicion is not enough to support a search. It requires probable cause (a reasonable belief).