Your inability to present case law in support of your position is not the same thing as there being no case law. There are thousands of cases holding that the right to counsel does not attach immediately upon arrest. See, e.g., United States v. Hayes, 231 F.3d 663 (9th Cir. 2000) (“*t has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.”).
The only legal argument open to you, aside from a wholesale change in the law for which there is no reason to expect Supreme Court support, is that the right to counsel attached because of related charges brought against this guy. But the police were pretty clearly investigating a separate crime, and in that case, there is no right to counsel. Id. (noting that statements provided to the police after a Sixth Amendment right to counsel had attached and had been invoked with respect to one armed robbery did not apply to investigation of other offenses).
None of which is to say that the police acted properly. It just means they did not formally violate this guy’s Sixth Amendment rights.
Ok I think I got it now. So if they were questioning him, playing it off like “No you’re not in custody, just want to ask you a few questions.” interview and the cop said “He’ll be free to go in a few minutes.” that she would have had the right (assuming she was his attorney for that case, I’m still not sure if she was) to do what she did no matter how much the cops want to play it off as “We’re just chatting.”?
As for you’re last question, doesn’t he have a right to an attorney as soon as he’s Mirandized, even before the interrogation begins? Does he have to wait to be questioned THEN ask for an attorney?
Assuming she was his attorney, and assuming he invoked his right to speak to her, the officers’ interrogation must cease.
He can invoke his right to counsel at any time he’s detained, but that right simply means the police can’t question him without his attorney present. It doesn’t mean the police cannot investigate him in other ways, such as having him stand there while a witness looks at him and says, “Yeah, that’s the guy that mugged me.”
By way of clarification for non-lawyers, what Bricker is talking about here are rules related to your Fifth Amendment rights–designed to protect your right not to speak to the police–not Sixth Amendment rights.
Generally, the phrase “right to counsel” refers to the Sixth Amendment, and not to these prophylactic Fifth Amendment rules (though occasionally you hear it used that way).
Just so everyone reading is aware: the Sixth Amendment right to counsel is “offense-specific.” That is, merely because Jeb invokes his right to an attorney after being detained and questioned for the Marlo Furniture robbery does not mean that he has any Sixth Amendment rights if he is subsequently detained and questioned by the police for the Alexandria Lasertag vandalism case. He is free, of course, to immediately invoke his right to counsel when questioned about the trashing the Lasertag site, but the mere fact that he has hired an attorney to defend him against one charge does not transform that second police encounter into anything impermissible.
As the Supreme Court observed in McNeil v. Wisconsin, 501 US 171 (1991):
Nor does the Fifth Amendment apply. From the same case:
Correct – but what started this tangent (for me, anyway) was get lives’s attempted to build a claim for violation of the client’s inchoate “right to an attorney.”
Thus my citation to McNeil, in which the Court explicitly rejects this sort of chimera of Fifth and Sixth Amendment protective frameworks.
Nonetheless, your innate sense is mistaken. Elements that confuse the picture are sort of jumbled together: lawyer, client, denied access. But the devil is in the details.
Aren’t you a defense attorney? Does this not disturb you? It might not CURRENTLY be a civil rights violation, but it’s pretty clear the officers in this case neither knew nor cared about that, wouldn’t you say? Which is concerning, if true.
First, thanks for returning to the thread, Bricker, I’m learning more now about the law than I was when get lives was the one attempting to answer his own question.
Why does the interrogation have to cease? Can’t they ask the suspect questions with the attorney present?
They were also attempting to question him, "Jami Tillotson rushed out of a courtroom, hearing that one of her clients was being questioned by police without his constitutional right to counsel. Once she arrived on the scene, Tillotson told police they had no right to question or photograph her client without an attorney present."
Read more at Police Arrest Public Defender For Publicly Defending Client [Video] - Inquisitr
Setting aside the questions of legality, it seems to me that this whole mess could have been avoided if the police had explained to the lawyer what was going on. Did they tell her that they were investigating a different crime than the one her client was already charged with?
There’s a difference between what you can do and what you should do. Even if the police were operating within the law, they should have tried to do their jobs without arresting a lawyer who was just trying to do her job.
But that’s not true – as long as the client doesn’t invoke his right to counsel, the police have every right in the world to question AND photograph her client without an attorney present.
Obviously, she would prefer that they not do this. But the police violate no law or constitutional precept by doing so.
What disturbs me now is that we’re in the General Questions forum, which is intended to supply factual answers to questions, and your efforts to factually answer questions were filled with inaccurate information.
If we were in IMHO, I might share how outrageous I found the police conduct. The attorney was certainly not interfering in the investigation in a manner that the criminal statutes exist to prevent. The officers must have known that their arrest would end up being dismissed. They used a power play, and it is certainly disturbing to see a member of the defense bar subjected to that.
But we’re not. This is a forum for factual answers to questions.
The factual answer is that the client in this story did not suffer any abrogation of his federal civil rights, and confident answers to the contrary are wrong.
Does it matter whether the police officially detained the client?
If the client was free to go, how can the police justify forcibly removing the attorney?
If the client was not free to go, doesn’t the client have a right to invoke the right to have an attorney present during questioning?
Obviously, even if the client invokes the right to an attorney, the attorney doesn’t have to be there for every step of booking the client, but in this case the client never seems to have left the courthouse, but the attorney was forcibly removed.
I’m not sure what you mean when you say, “Officially.”
A detention happens when the facts and circumstances are such that a reasonable person would not believe he was free to go. So if you mean, “Did the police say, explicitly, ‘You are detained,’” then no: it doesn’t matter. A person can be detained even if the police don’t say he is.
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.
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.
Yes, absolutely. But the attorney cannot invoke that right on behalf of the client.