I think a key point is although she was his attorney on a different charge, was she his attorney on THAT charge.
Can any SD lawyers tell me:
If you represent a client in one case, are you presumed to be their attorney in all cases unless you are actively removed from the second case (client gets another attorney for the second case or you remove yourself)
Is an attorney saying, “This is my client.” and the suspect agreeing to it sufficient to create an attorney-client relationship? My understanding is that a retainer (even $1) must be paid [I think it is consideration as per contract law] OR the court appoints the attorney as an officer of the court.
That may be true but what I see is that she shows up not really sure what’s going on. She claims to be his attorney (although she may not be. see my question above) and before she can sort out what is going on, she is arrested for resisting arrest. While it may have been legal, it certainly puts the police in a bad light by not explaining to her what was going on so she could decide how far to push it. Also, is intent involved with California’s resisting arrest? If my kid is being questioned on my front lawn and I go outside and interrupt the questioning to find out what is happening, is that resisting arrest?
Another question, if the suspect were not in custody, can the police force him to have his picture taken? It seems like the cops have the best of both worlds in that he was not in custody but yet he did not have the option to not be photographed or seek legal council. If you are not allowed to leave and must submit to the police requests then you are being detained. And if the police are allowed to detain you and arrest your attorney for trying to inform you of your rights then I’ll jury-nullify this case in a heartbeat.
Let me throw this out there too. They were taking pictures of him in the courthouse hall. Presuming that they would be used in a photo line up, if the background were identifiable as a courthouse wouldn’t that be prejudicial?
Triple post I know.
Couldn’t this be intimidation or duress? The police want him to do something he is not required to do. His attorney says you don’t have to do this. Attorney is arrested and police repeat the photography/questioning. Yes I know this is the SCOTUS that told us that remaining silent is not using your right to remain silent so I’m sure current legal theory is that he could have refused even after his attorney was led away in handcuffs and I am sure you are 100% absolutely correct but to adapt Potter Stewart’s famous quote “we know [a civil rights violation] when we see it".
At the risk of sounding uncooperative, I can’t really take the time now to re-post the standards that govern a determination of whether a person is in custody, or seized within the meaning of the Fourth Amendment, but it’s a oft-repeated piece.
The reason I entered this thread was to discover what federal civil rights were such a slam dunk that it justified the confident statement in GQ from get lives.
You’re the lawyer - why isn’t your answer to the OP’s question that the client’s civil rights do not appear to be violated, but that the attorney’s were? You imply as much in post #33 of this thread.
What about the last question then. If the pictures were used in a photo lineup and were identifiable as being taken in a courthouse, would that be prejudicial?
If only the suspect’s pictures were identifiably in a courthouse, perhaps. But the purpose of the photo lineup is to confirm the identity of the suspect by witness identification. If ALL the pictures were of similar background, then probably not.
You’re allowed to disagree with the OP, Bricker, he’s the one asking the question, and generally people asking questions don’t know the answers already.
What I’m confused about is when the officer at the beginning of the video says
All of the armchair lawyering I read says that if you are not free to go you are being detained and that makes it a custodial interrogation. Read #4 and #5 in this attorney’s page and everything Bricker and Loach et al. writes would certainly imply that he would have had a right to an attorney at that time.
Am I wrong? If a cop says “You’re free to go when I’m done doing cop stuff.” and I’m not free to go until he is done, is that not being in custody? And if I’m in custody, do I not have a right to consult with an attorney?
The initial charge was resisting arrest but was changed to obstruction. Remember that the DA files charges not the police. I don’t think police even need to tell you what you are being arrested for in some jurisdictions.
If the police are performing an unrelated investigation and the lawyer interferes by blocking them it seems like obstruction.
I think it was spectacularly bad PR to arrest her. I’m not convinced it was inappropriate.
I thought of what might also be a relevant issue. Was Tillotson aware the police were taking the photographs for another case? If she was in court representing the man and heard that the police were doing something to her client out in the hallway, it would not be unreasonable for her to believe it was related to the case he was appearing for and which she was representing him for.
I mispoke. I meant the initial arrest was for resisting arrest, but was later modified to include obstruction. I do not believe any charges have been filed.
I agree he wasn’t free to go, and was thus detained within the meaning of the Fourth Amendment.
I don’t agree it was an interrogation, due to the apparent lack of questioning and the apparent absence of any testimonial evidence. Note that 4 and 5 on that attorney’s page discuss talking.
As an analogy, let’s imagine the police arrested him. Do you think he has a right to consult with his attorney before they fingerprint him?
But it seems to me, that providing non-testimonial evidence requires a formal arrest and all that entails. The police cannot stop someone on the street and during the initial interview demand they provide blood samples and fingerprints because they might be involved somehow in a crime. That sort of thing waits for formal arrest, and in the case of DNA, a court order. (Or if this is L&O, follow him around and pick up his used gum.)
Presumably the photo follows the same rules. The police can attempt to ask you questions, but as a previous post indicated, they can’t simply order you to pose and smile for the camera during that interview, on pain of obstruction of justice - any more than they can order you to “press on this piece of plastic so we can get your fingerprints, please.” A lawyer getting in the way like in the video would be obstructing justice if the request to the subject were a lawful order.
I’m offended that cops can even think they would get away with something like this, and enraged that they might actually really get away with it.
And, since the client was not free to go, by arresting his attorney before he could consult with his attorney, they violated his right to counsel. The cops’ right to do their jobs does not trump right to counsel. Even if there’s no case law on this, I’m still betting SCOTUS would agree.
Can the police hide in an alley, then leap out as you pass by and take your picture, without any probable cause, reasonable suspicion, or any indicia whatsoever of guilt on your part?
Yes, they can.
Now, can they order you to stand still and let them take your picture?
For that, they’d need at least reasonable, articulable suspicion of criminal activity – the level of suspicion necessary for a Terry stop.
Did they have that with respect to the client and the burglary they were investigating?
I strongly doubt it. The Supreme Court typically identifies the specific legal grounds on which they rest their opinions. Here, you have been unable to identify any specific legal grounds to rest the claim that the client’s civil rights were violated.
The client does not have a right to consult with his attorney simply because the police are detaining him, as long as they are not questioning him. And there already IS case law for that proposition.