# Public defender arrested--is this a Federal civil rights violation? **URL:** \ **Category:** Factual Questions\ **Created:** [February 3, 2015, 9:12pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763 "2015-02-03T21:12:49Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![wevets](https://avatars.discourse-cdn.com/v4/letter/w/e9a140/32.png) [@wevets](https://boards.straightdope.com/u/wevets)\ **Post date:** [February 5, 2015, 7:39pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/81 "2015-02-05T19:39:11Z")
> [@Bricker](#): > > But perhaps you meant “officially,” in the sense that he was detained within the meaning of the law. > > It matters somewhat with respect to interrogation. The police are generally free to approach any person and ask them questions, as long as that person is equally free to disregard their inquiries and go about his business. This is known as a “consensual encounter.” When the person is no longer free to leave, a consensual encounter is transformed into a seizure. > > So: during a consensual encounter, the police are free to ask questions and the answers given are admissible. Once the person has been seized, any answers given in response to police questioning are presumptively inadmissible, unless the police have advised the detainee of his right to remain silent and obtain an attorney. Thanks, that’s what I meant. It seems like the policeman was ambiguous as to whether this was supposed to be a consensual encounter, stating “you’re free to go”, but qualifying it with that the suspect needs to cooperate. I don’t think there’s a civil rights violation in that ambiguity, but I think it is **bad public policy** , because it leaves the suspect and the attorneys unclear on what type of encounter this is. If it were a consensual encounter, the police have no right to remove the attorney from the premises, right? And if it’s not a consensual encounter, the police should have an obligation to inform the attorney of what kind of encounter this is so she knows when the appropriate time to give her client legal advice is. > [@](#): > > If the police are in the middle of a consensual encounter, and you run up and stand in front of the officer and say, “He doesn’t have to say a thing to you,” this could be the predicate for a charge of interfering with an investigation. The right to counsel doesn’t rest with the lawyer – it rests with the client. What if you exclude the “run up and stand in front of the officer” part? From the video, the attorney starts against the wall parallel to her client, not between her client and the police officer. In a consensual encounter, does the policeman have the right to end any conversation the client wishes to have with the attorney? Presumably, to my layman’s brain, if the client is free to go, he’s also free to have a conversation with the person next to him who isn’t the police officer. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 5, 2015, 7:55pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/82 "2015-02-05T19:55:57Z")
> [@dropzone](#): > > Wait, Wonkette’s bizarre? Bizarre seems to be an adequate description. \*Type of site - Politics, satire Wonkette is a left-leaning American online magazine of topical satire and political gossip, established in 2004 by Gawker Media… …Taking a sarcastic tone, the site focuses heavily on humorous breaking news, rumors, and the downfall of the powerful. It also deals with serious matters of politics and policy. Liberal in outlook, the site is critical of Republicans. …As a satirical website that specifically mocks public figures, mostly from the right wing of American politics, Wonkette has generated many controversies during its publication.\* > **[Wonkette](https://en.wikipedia.org/wiki/Wonkette)** > > Wonkette is an American online magazine of topical and political gossip, established in 2004 by Gawker Media and founding editor Ana Marie Cox. The editor since 2012 is Rebecca Schoenkopf, formerly of OC Weekly. Wonkette covers U.S. politics in a satirical manner. > Wonkette was established in January 2004 as part of the Gawker Media network. Its founding editor was Ana Marie Cox, a former editor at suck.com. > Cox rapidly established a large reading audience and media notice for the site. The b... ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 5, 2015, 8:03pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/83 "2015-02-05T20:03:09Z")
I didn’t look two closely at the second page of this thread, but I tend to agree with **Bricker** here. There are two separate sets of issues at play. The rights of the suspect, and those of the public defender herself. The rights of the suspect were likely not violated, and I’m not aware of any authority to support the claim that the PD could order the police to stop questioning her client about an unrelated charge. Whether the rights of the PD were violated is a slightly different matter, but as a lawyer I find it immensely troubling that she was arrested. > [@](#): > > Presumably, to my layman’s brain, if the client is free to go, he’s also free to have a conversation with the person next to him who isn’t the police officer. He is. But the person next to him is not necessarily entitled to engage _him_ in conversation. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 5, 2015, 8:04pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/84 "2015-02-05T20:04:19Z")
Maybe I missed but I’d love to hear Bricker’s answer on this: Given she was his attorney on Case 1 as a public defender And given he was being detained & photographed for Case 2 And given that she ran up and said she was his attorney which he certainly did not affirm nor retain her in regards to Case 2 And given he did not request an attorney for Case 2 Was there an attorney-client relationship in regards to Case 2 at the time of her arrest? ---
**Author:** ![wevets](https://avatars.discourse-cdn.com/v4/letter/w/e9a140/32.png) [@wevets](https://boards.straightdope.com/u/wevets)\ **Post date:** [February 5, 2015, 8:11pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/85 "2015-02-05T20:11:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > He is. But the person next to him is not necessarily entitled to engage _him_ in conversation. I’m kind of not following you here. In a _consensual_ encounter, if the attorney attempts to talk to the client, there’s a legal problem for the attorney? I could see that in a non-consensual encounter, but there are speech restrictions on consensual encounters as well? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 5, 2015, 8:18pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/86 "2015-02-05T20:18:18Z")
> [@wevets](#): > > Thanks, that’s what I meant. It seems like the policeman was ambiguous as to whether this was supposed to be a consensual encounter, stating “you’re free to go”, but qualifying it with that the suspect needs to cooperate. > > I don’t think there’s a civil rights violation in that ambiguity, but I think it is **bad public policy** , because it leaves the suspect and the attorneys unclear on what type of encounter this is. No argument there. In my experience, the police are very well trained at how to skirt that line – to give a strong enough impression to a subject that he is required to stay and cooperate while leaving them free to truthfully (and somewhat piously) testify if need be that the subject was free to go at any time, and that the encounter was consensual. > [@](#): > > If it were a consensual encounter, the police have no right to remove the attorney from the premises, right? Actually, they potentially do. Imagine that the police are investigating a traffic accident by interviewing witnesses. The witnesses are certainly free to go – they’re not suspected of any crime. But a bystander who placed himself between the officer and the witness with the intention of frustrating the interview would certainly be opening himself to some kind of obstruction suspicion. So if it’s a consensual encounter, a third party does not have the right to interfere. Now, as with all things, reasonableness is key. We’ve been discussing obstruction generically, and not focusing on each element of the charge and how it must be proved in California. > [@](#): > > And if it’s not a consensual encounter, the police should have an obligation to inform the attorney of what kind of encounter this is so she knows when the appropriate time to give her client legal advice is. Again, though: in a consensual encounter, he has no right to demand an attorney. His remedy to end a consensual encounter is to leave. If it’s NOT a consensual encounter, then it falls to him to exercise his right to get an attorney, and that’s his remedy for ending the questioning. The attorney who represents the client in Case #1 cannot vicariously assert the client’s rights with respect to Case #2. > [@](#): > > In a consensual encounter, does the policeman have the right to end any conversation the client wishes to have with the attorney? Presumably, to my layman’s brain, if the client is free to go, he’s also free to have a conversation with the person next to him who isn’t the police officer. Sure, he’s free to do that. But the person next to him isn’t necessarily free to initiate that conversation if the intent is to frustrate the investigation. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 5, 2015, 8:19pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/87 "2015-02-05T20:19:18Z")
> [@Saint\_Cad](#): > > Maybe I missed but I’d love to hear Bricker’s answer on this: > Given she was his attorney on Case 1 as a public defender > And given he was being detained & photographed for Case 2 > And given that she ran up and said she was his attorney which he certainly did not affirm nor retain her in regards to Case 2 > And given he did not request an attorney for Case 2 > > Was there an attorney-client relationship in regards to Case 2 at the time of her arrest? No. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 5, 2015, 8:21pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/88 "2015-02-05T20:21:00Z")
Assuming, _arguendo_, that she was representing the gentleman in the case under investigation, probably not. However, she had only been appointed to represent him in his other case. Let’s pretend the client had said, “hey, cop, I’m going to talk to my attorney over here.” Then there’s no problem. However, if the attorney said “hey, cop, stop talking to my client,” then there might be one. The fact that _he_ can walk away doesn’t mean _she_ can get in the way. A simple analogy might be made to a road user. If you’re waiting in the path of traffic to make a (legal)turn, you’re not breaking the law. People can honk all they want and it doesn’t mean you have to move. However, if a police cruiser needs to get by you and you refuse an order to move out of the way, you might then be subject to arrest even though what you did would normally be okay. ETA: I would clarify **Bricker** ’s “no” to “not unless the legal underpinnings of the public defender’s office differ in California to other states.” ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [February 5, 2015, 8:34pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/89 "2015-02-05T20:34:33Z")
IANAL, but… Well, we’re still back to the $64,000 question - is taking a photograph interrogation on non-testimonial? If the lawyer is in the way and the police say “get out of the way” that already implies a level of coercion with police powers above and beyond “say cheese”. “Get out of the way or I’ll arrest you” is pretty explicit. The police are exercising their power to place the suspect in particular way (i.e. facing the camera, unobstructed view). The police are using their authority to arrange the physicality of the situation - i.e. do this, don’t do that - that probably appears to arise to the level of detention by a reasonable person. Similarly, yes, the police can jump out of the alley and take your picture as you walk by (or, we’ve seen the movies where the stake-out people do it from a distance). But then, they cannot ORDER you to move your hands away from your face, look toward the good lighting, etc. If it appears they are using intimidation to do so, it would seem to be you are being detained. During a terry stop, the police can frisk for weapons if there’s reason to believe they are there. Otherwise, presumably, they cannot. They can ask a victim “does this look like the guy?” I would equate “take a photo” to something like ordering the detained person to remove their hat - let’s see the hairstyle, please? Can they do that without an arrest? Removing a hat to see hidden hair is a non-testimonial evidence situation, but it is physical interference and thus a search. Ditto for “take the glove off” or “move your hand from in front of your face”. At a certain point if the police want a closer look, they must arrest and to do so must have reasonable grounds. If the total sum of reasonable grounds is “failed to cooperate with police”, I suspect it won’t work for long. How explicitly does a person need to say “I want a lawyer” if there’s already someone there insisting “I’m his lawyer” (and guess what - she is!) I would think his silence would be reasonable assent. Again, I doubt SCOTUS either goes in for magic words, but looks at the total situation. He appeared to be detained. His lawyer appeared and spoke on his behalf. he did not contradict her. Conclusion? _“To have reasonable suspicion that would justify a [Terry] stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed”_ (Wikipedia) That’s pretty broad, I would imagine that there must be some proximity of time and suspicion falling on the person stopped, and limit on frequency of stops. There’s always some crime going on somewhere, it does not justify stopping everyone and once is enough. ---
**Author:** ![wevets](https://avatars.discourse-cdn.com/v4/letter/w/e9a140/32.png) [@wevets](https://boards.straightdope.com/u/wevets)\ **Post date:** [February 5, 2015, 9:26pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/90 "2015-02-05T21:26:23Z")
Thanks, folks, this is interesting and I’ve learned quite a lot so far. > [@Bricker](#): > > Again, though: in a consensual encounter, he has no right to demand an attorney. His remedy to end a consensual encounter is to leave. But he doesn’t have to leave to end the encounter, right? Especially in a public courthouse (where presumably the court has required him to appear) can’t he just tell the policeman “no, I’m not going to answer any questions or pose for pictures” - and the policeman then has to decide whether to make the encounter a detention of some sort or not? > [@](#): > > Sure, he’s free to do that. But the person next to him isn’t necessarily free to initiate that conversation if the intent is to frustrate the investigation. I see where you’re coming from. I think arresting the attorney may be too invasive a role for the state in this case. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [February 5, 2015, 9:40pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/91 "2015-02-05T21:40:22Z")
> [@Bricker](#): > > … > Sure, he’s free to do that. But the person next to him isn’t necessarily free to initiate that conversation if the intent is to frustrate the investigation. But… If the person next to him is the attorney, and they are answering for him - well that’s not the same. they are definitely entitled to do so. She only stands between them because they are trying to take a picture, which she considers a violation of her client’s rights. Otherwise, she answers for him, which as the lawyer she surely must be entitled to do. Because you are not obliged to be given an attorney (or the chance to find one) at that point in the encounter does not mean you cannot have one if one is there? Once your attorney is there, they can act as your attorney would act? ---
**Author:** ![JimSC](https://avatars.discourse-cdn.com/v4/letter/j/3d9bf3/32.png) [@JimSC](https://boards.straightdope.com/u/JimSC)\ **Post date:** [February 5, 2015, 10:04pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/92 "2015-02-05T22:04:45Z")
Quote from Bricker: \*It matters somewhat with respect to interrogation. The police are generally free to approach any person and ask them questions, as long as that person is equally free to disregard their inquiries and go about his business. This is known as a “consensual encounter.” When the person is no longer free to leave, a consensual encounter is transformed into a seizure. So: during a consensual encounter, the police are free to ask questions and the answers given are admissible. Once the person has been seized, any answers given in response to police questioning are presumptively inadmissible, unless the police have advised the detainee of his right to remain silent and obtain an attorney. \* [/QUOTE] Say the police are investigating Bob’s murder. Bob’s neighbor Joe is standing in front of his house, and the cops walk over and start asking him, “What did you see? What did you hear?” Joe says, “I don’t know anything. Can I go inside now?” The cop says, “No. We have a couple of more questions. Is your wife at home?” Joe says, “She’s down by the old well.” Cop says, “What’s she doing down there?” Joe says, “She’s hiding the gun I used to shoot Bob.” When the cop said, “No…”, did this become a seizure? Is Joe’s confession admissible? Is the gun admissible? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 5, 2015, 10:10pm UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/93 "2015-02-05T22:10:57Z")
> [@md2000](#): > > IANAL, but… IANAL either. > [@](#): > > If the lawyer is in the way and the police say “get out of the way” that already implies a level of coercion with police powers above and beyond “say cheese”. “Get out of the way or I’ll arrest you” is pretty explicit. Yes, but it was addressed to the lawyer, not the suspect. The coercion involved was to prevent the lawyer from interfering with an ongoing investigation, which was taking place in the context of a consensual interview. Telling a bystander to get out of the way is not a violation of the suspect’s rights. And he does not have a right to an attorney until he asks for one. Some bystander saying “I’m his lawyer” does not mean that the suspect asked for a lawyer. > [@](#): > > The police are exercising their power to place the suspect in particular way (i.e. facing the camera, unobstructed view). The police are using their authority to arrange the physicality of the situation - i.e. do this, don’t do that - that probably appears to arise to the level of detention by a reasonable person. It’s a gray area, but not very dark gray. As mentioned, the police are very good at skirting the question of consensual vs. custodial interviews. That’s why they said “you are free to go but you need to cooperate”. Legally and morally, everything after the phrase “you are free to go” is filler. The bottom line is, the instant the police utter the phrase “you are free to go”, and you do not go, it is a consensual interview whether they said anything else or not. > [@](#): > > During a terry stop, the police can frisk for weapons if there’s reason to believe they are there. Otherwise, presumably, they cannot. AFAIK they can frisk you whether they have reason to believe that, or not. They do not, IOW, need probable cause or reasonable suspicion to frisk you. > [@](#): > > They can ask a victim “does this look like the guy?” I would equate “take a photo” to something like ordering the detained person to remove their hat - let’s see the hairstyle, please? Can they do that without an arrest? As part of a consensual interview? Sure. If you refuse and they force you to do something, you are under arrest. And you then have the right to an attorney (if **you** request it) before any questioning. They can fingerprint you without an attorney, they can make you appear in a line-up without an attorney, presumably they can show you to the victim without an attorney. But you don’t have to say anything except your name, address, and birthdate. > [@](#): > > How explicitly does a person need to say “I want a lawyer” if there’s already someone there insisting “I’m his lawyer” (and guess what - she is!) I would think his silence would be reasonable assent. Nope. Some bystander saying “I am his lawyer” and you saying nothing does not constitute a request for an attorney, especially in a consensual encounter in which you don’t have a right to an attorney. Regards, Shodan ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2015, 1:14am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/94 "2015-02-06T01:14:35Z")
> [@md2000](#): > > IANAL, but… Well, we’re still back to the $64,000 question - is taking a photograph interrogation on non-testimonial? Nope. It’s not even the $64 question (the first, and easiest, prize level on the Hal March TV quiz show that made famous the top prize you mention. Taking a photograph is non-testimonial. It’s not protected by the Fifth Amendment and does not trigger a right to counsel. > [@](#): > > If the lawyer is in the way and the police say “get out of the way” that already implies a level of coercion with police powers above and beyond “say cheese”. “Get out of the way or I’ll arrest you” is pretty explicit. The police are exercising their power to place the suspect in particular way (i.e. facing the camera, unobstructed view). The police are using their authority to arrange the physicality of the situation - i.e. do this, don’t do that - that probably appears to arise to the level of detention by a reasonable person. No. The police preventing you from being in a particular area is not the same as seizing you. Indeed, it obvious that they wanted her to disregard what they were doing and go on her way, _which is the very definition of consensual encounter_. Even assuming the police “exercised their power” – what of it? What’s the significance of that? Your analysis seems to flow back and forth between the lawyer and the client. Who, specifically, are you claiming was detained? The lawyer, or the client? And at what point do you contend the detention occurred? > [@](#): > > I would equate “take a photo” to something like ordering the detained person to remove their hat - let’s see the hairstyle, please? Can they do that without an arrest? Removing a hat to see hidden hair is a non-testimonial evidence situation, but it is physical interference and thus a search. And undoubtedly you have some citation to authority for the claim that “physical interference” is “thus a search?” Because your approach here seems to consist of announcing rules that seem right to you as though they were supported in the law somehow. > [@](#): > > Ditto for “take the glove off” or “move your hand from in front of your face”. At a certain point if the police want a closer look, they must arrest and to do so must have reasonable grounds. If the total sum of reasonable grounds is “failed to cooperate with police”, I suspect it won’t work for long. Just… just stop. Police can detain based on reasonable, articulable suspicion. Not arrest – _detain_. In this case, the police were investigating a burglary and had the names of the client and an accomplice. This would typically signal reasonable suspicion. Not enough for an arrest, but enough to briefly detain the individual and further investigate, so as to confirm or dispel the suspicion. So at the beginning of the encounter, they had a basis to detain the client, but not the lawyer. The lawyer interfered with the investigation, which she had no privilege to do, because she was not his lawyer for that charge. At that point, the police had probable cause (-ish) to arrest her, and they did. > [@](#): > > How explicitly does a person need to say “I want a lawyer” if there’s already someone there insisting “I’m his lawyer” (and guess what - she is!) I would think his silence would be reasonable assent. No, his silence is NOT reasonable assent. There is no such standard as “reasonable assent by silence.” Why would you think there is? What cases led you to this conclusion that you thought of? A person needs to assert his request for counsel clearly and unambiguously. > [@SCOTUS](#): > > Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” Smith v. Illinois, 469 U. S., at 97-98 (brackets and internal quotation marks omitted). Although a suspect need not “speak with the discrimination of an Oxford don,” post, at 476 (Souter, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. > [@](#): > > Again, I doubt SCOTUS either goes in for magic words, but looks at the total situation. He appeared to be detained. His lawyer appeared and spoke on his behalf. he did not contradict her. Conclusion? None. She has no right to speak for him on this matter. If he wanted her to speak for him, HE needs to say so. > [@](#): > > That’s pretty broad, I would imagine that there must be some proximity of time and suspicion falling on the person stopped, and limit on frequency of stops. There’s always some crime going on somewhere, it does not justify stopping everyone and once is enough. Why, in GQ, do you feel so confident about your guesses, imaginings, and thoughts that you are willing to post them as though they are facts? ---
**Author:** ![kayT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayt/32/3633_2.png) [@kayT](https://boards.straightdope.com/u/kayT)\ **Post date:** [February 6, 2015, 3:12am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/95 "2015-02-06T03:12:57Z")
Thanks, **Bricker** , for explaining things so clearly, and also for defending the goals of GQ. It needs to be said unfortunately often that GQ is for information, not guesses and imaginings. It’s interesting that some would like the police to be required to recite the Miranda warnings word for word but the request for a lawyer could be “unspoken” or “assumed”. I don’t think it works that way. ---
**Author:** ![wmnpwr](https://avatars.discourse-cdn.com/v4/letter/w/eada6e/32.png) [@wmnpwr](https://boards.straightdope.com/u/wmnpwr)\ **Post date:** [February 6, 2015, 3:42am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/96 "2015-02-06T03:42:54Z")
> [@Bricker](#): > > “The right to an attorney,” is not one that applies to every person at every time. You have a right to an attorney at significant phases of criminal prosecution. > > In this case, the guy was in custody for Crime A, and the police were apparently investigating Crime B by taking photographs of the man, as opposed to questioning him. > > Can you explain specifically how the “right to an attorney” was violated here? I’m not sure it’s relevant if she was his attorney on the new investigation specifically. If she’s his attorney in a present, ongoing matter, then part of representing her client on the original charge is thinking about collateral issues, such as picking up a new charge, which may violate his probation, the terms of his bail, ability to work a plea, leniency during sentencing, etc. Any new police inquiry may have relevance in the current matter, so that makes her duty to represent him during police interactions apply to the current attorney client relationship for the current matter. On another subject, police taking a non-custodial photo after the attorney objects is problematic if that photo is later used as evidence against him. ---
**Author:** ![get\_lives](https://avatars.discourse-cdn.com/v4/letter/g/ecb155/32.png) [@get\_lives](https://boards.straightdope.com/u/get_lives)\ **Post date:** [February 6, 2015, 4:54am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/97 "2015-02-06T04:54:22Z")
> [@wmnpwr](#): > > I’m not sure it’s relevant if she was his attorney on the new investigation specifically. If she’s his attorney in a present, ongoing matter, then part of representing her client on the original charge is thinking about collateral issues, such as picking up a new charge, which may violate his probation, the terms of his bail, ability to work a plea, leniency during sentencing, etc. Any new police inquiry may have relevance in the current matter, so that makes her duty to represent him during police interactions apply to the current attorney client relationship for the current matter. > > On another subject, police taking a non-custodial photo after the attorney objects is problematic if that photo is later used as evidence against him. If none of the lawyers in the thread have already advanced this as a possible cause for litigation, I’m going to guess there’s some case law preventing it. Which sucks for everybody, even the cops. Their credibility is even further damaged, and an injustice has been perpetrated by the state…and no one, apparently, is going to be stopping it from happening again. Even most police, I imagine, are not happy about something like this. It bodes well for literally no one. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 6, 2015, 5:11am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/98 "2015-02-06T05:11:50Z")
> [@Shodan](#): > > It’s a gray area, but not very dark gray. As mentioned, the police are very good at skirting the question of consensual vs. custodial interviews. That’s why they said “you are free to go but you need to cooperate”. Legally and morally, everything after the phrase “you are free to go” is filler. I think it’s questionable in the situation you described. The police do have authority to give civilians orders in some situations and can arrest people for not following those orders (as the situation we’re discussing demonstrated). So if the police had said _“You are free to go but we’d appreciate it if you cooperated”_ then it would be unambiguous - you are free to leave and the police are only asking you to stay but you are free to say no. But if the police tell _“You need to cooperate”_ then that can be seen as an order not a request - the same as a police officer telling you _“You need to put your hands where I can see them”_. You’re not being asked to do something, you’re being told to do something. So if a police officer told you _“You are free to go but you need to cooperate”_ it’s a contradictory and ambiguous statement. ---
**Author:** ![get\_lives](https://avatars.discourse-cdn.com/v4/letter/g/ecb155/32.png) [@get\_lives](https://boards.straightdope.com/u/get_lives)\ **Post date:** [February 6, 2015, 5:44am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/99 "2015-02-06T05:44:35Z")
> [@Little\_Nemo](#): > > So if a police officer told you _“You are free to go but you need to cooperate”_ it’s a contradictory and ambiguous statement. And no doubt supported by shitloads of case law. That’s actually an area of law they really ARE well-versed in. Convictions/confessions would be getting thrown out like crazy, otherwise. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [February 6, 2015, 6:45am UTC](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763/100 "2015-02-06T06:45:04Z")
But the big long rebuttal still does not answer the question - in the situation we see, the police want to take a picture. Are they within their rights to demand for example, that he remove his hand from in front of his face? That he remove his hat? The lawyer standing between him and the police did not interfere with their ability to ask him questions. When police say “we just want to ask him a few questions then he’s free to go” that sounds like detained - i.e. not free to go until _then_. Are the police entitled to order detained persons to pose for photographs outside of the standard arrest-booking process? What precisely may a policeman do in a not-arrested detention situation? “The suspect has to unambiguously ask for an attorney”? Even is she’s right there asserting that she’s his lawyer? I’m making the guess the cases you cite are some guy sitting in a cell waiting for a non-existent lawyer to never arrive, or to be offered one. Unfortunately, IANAL I don’t know how to look up that sort of cite. Was there in fact a case where the lawyer was right there standing beside the alleged client, has been his lawyer, said “I’m his lawyer”, and the court said “no you’re not”? > [@](#): > > Police can detain based on reasonable, articulable suspicion. Not arrest – detain. In this case, the police were investigating a burglary and had the names of the client and an accomplice. This would typically signal reasonable suspicion. Not enough for an arrest, but enough to briefly detain the individual and further investigate, so as to confirm or dispel the suspicion Sorry, I see a lot of back and forth in everyone’s posts, but nobody is answering - can the police detain you and order you to pose, to show parts of yourself, to look in a certain direction while they take pictures? Or can they only ask verbal questions? (In a Terry stop they can reasonably frisk to check for weapons, but I suspect “reasonable” loses some value inside a court building with metal detectors and Xray units at the doors.) [Previous page](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763.md?page=4) [Next page](https://boards.straightdope.com/t/public-defender-arrested-is-this-a-federal-civil-rights-violation/711763.md?page=6)