The above statements are factually incorrect.
Both Richard Parker and I have supplied specific case citations that show contrary information.
What cases are you relying on to support the claims you have made?
Why? What rule of evidence would create the “problem?” Specifically.
It used to, to some degree. And the difference between the police and private citizens is that the police are trained to follow Miranda-compliant procedures.
SCOTUS has been chipping away at Miranda for a while. In lay terms, you could say that suspects used to be given the benefit of the doubt regarding whether they had invoked their rights to silence or to counsel. Now both must be invoked unequivocally.
After reading all of the lawyers’ posts it think it is all pretty simple.
Suspect was detained. Full on, not free to leave.
Suspect was not being interrogated but being photographed.
*Although detained, given what the police were doing he was NOT entitled to an attorney at that time.
Tollison was NOT acting as his attorney at the time (although that may not have been clear to her or the police at the time)
Given California Law, she was resisting arrest although more properly it was obstruction of justice.
*The big issue is SHOULD the law work this way or should you be allowed access to an attorney if detained even if not being questioned. The seems to be the GD of the thread right now.
I don’t think this last part is clear.
She probably didn’t know she had run afoul of that law, but it looks, AFAICT, to me like she had.
Hang on – this is the part that I don’t believe anyone in the thread has analyzed with attention to the specifics of California law. Unless I missed the post (and if I did, I apologize for the following) the elements of the specific charge haven’t been posted, much less discussed in relation to what she did and what inferences the police might have reasonably drawn.
In other words, I certainly don’t agree she was resisting arrest, and I’m at best agnostic about her guilt for any obstructing charge. The real question at this stage is, moreover, simply whether the police had probable cause to arrest her, not whether she’s actually guilty of any such charge.
Come to think of it, I don’t think the part about the suspect being detained is clear either. He presumably couldn’t leave the courthouse but that wasn’t because of anything the officer did.
I believe this is probably the “resisting arrest” law she’s being investigated for. I put that in quotes, because the code section is really a catch-all for impeding an officer in the performance of his duties:
Well… I’d dispose of this by suggesting that even if he was detained, the officers had reasonable, articulable suspicion to do so.
The California law posted puts obstruction of justice under the resisting arrest statute.
As for being detained, the officer even says we are taking photographs and he’ll “be free to go in a few minutes.” so he was detained but not arrested. Kind of like being detained on a Terry Stop i.e. not free to go until we finish our police thing that we are doing. Since it’s only a few minutes to take the pictures it’s not unreasonable.
Hey maybe I should take the bar exam. Colorado needs more lawyers right? Do I need to take a class or something to be a lawyer?
Yes. But it is not clear that there was probable cause to arrest her for obstruction.
The statute as quoted requires her conduct to be “willful,” and on that little word I believe hangs the fate of any successful prosecution.
If, as Saint Cad noted, it was not clear either to her or to the police whether she was his attorney and entitled to be present, can she be said to have acted “willfully” in obstructing them?
That is, if she thinks she is his attorney in the matter they are investigating and that her presence is necessary, is she intentionally and deliberately obstructing a lawful police action?
Was the lawyer even aware that the police were detaining her client for a different accusation than the one for which she was representing him? Could her actions been seen as willful obstruction if she believed the police were trying to collect evidence for the case for which she was representing her client?
Well, there won’t be a prosecution, successful or otherwise. The charge has been dropped.
ETA: It would be rather unlikely for the police to take pictures of a subject when he had already been arraigned. But there’s no reason she would have known for sure.
Yes, a successful prosecution would have to prove “willful.”
But the question is not about a successful prosecution.
If the police had probable cause to arrest her, then her “federal civil rights” aren’t violated.
In order to arrest, the police don’t need proof of each and every element beyond a reasonable doubt.
None of the cites you or Parker provided are on point to contradict the claim I made. In fact, the facts of those cases aren’t on point to this case at all.
Here’s a real life example: a client with a pending immigration matter being represented by an immigration attorney picks up a criminal charge that can compromise the immigration case. The public defender isn’t concerned with collateral issues and is trying to work a plea that will result in his ineligibility to prevail on the immigration matter. The immigration attorney now has a duty to advise the client on the criminal matter because it is relevant to that case. She’s not the attorney of record for the criminal case, but her representation on the immigration matter includes counseling the client on this or any past criminal matter that affects his immigration eligibility. If the police want to obtain potentially incriminating evidence against him for this criminal matter and she is standing right there, her status as his attorney of record on the immigration matter compels her to advise the client, since the police inquiry is directly relevant to her ability to represent her client in the immigration matter. She can say “I am his attorney on an immigration matter, and this line of inquiry is directly relevant to that case, and as his attorney I’m advising him not to agree to any non-custodial evidence collection.”
Reasonable minds can disagree on how facts are applied to law, and how laws (both case and statutory) are interpreted. So many USSC cases are 5-4 and but for one vote, the losing side would have prevailed. This is a soft science. It’s not like mathematics where there is a knowable, correct answer. With this in mind, I’ve found your declarations to be somewhat off putting because you’re presenting your opinions as indisputable facts. There isn’t a right or wrong answer to the OP’s query. Scholars of constitutional law could make compelling arguments on either side. I believe the purpose of this forum is to contemplate the issues and have a vibrant exchange of ideas, not to shut down dissent. As for cites, I’m not going to waste time or money scouring Westlaw to find a cite (which may or may not exist) that is exactly on point to the facts I’ve presented. It’s possible there is no published appellate case law with this exact circumstance. Maybe there is. It doesn’t really matter bc it’s tangential to the OP’s query.
Alright, so it’s legal to question and photograph the suspect in that case. But wouldn’t it be illegal to prevent the counselor from counseling their client if they happened to show up in the middle of that questioning/photographing?
Here’s a hypothetical - You are watching your client being interrogated by the police. You know that he has invoked his right to an attorney for the crime you are representing him for, and you approach him. Another cop stops you before you can reach him, and says, “Hey, just so you know, he’s being interrogated for a different crime, not the one he hired you for. He hasn’t even invoked his right to an attorney for this totally separate crime.”
If you then shouted past the cop who ordered you to stop, and say, “Hey! Client! Don’t talk to the police!” would the cop then have the right to arrest you for obstruction? Would the cop even have the right to impede you from reaching your client in the first place?
If, alternatively, you had no way to shout past the cop (client is in another room and you can only hear the interrogation on speakerphone or something) would the cop be able to legally physically prevent you from entering the room and talking to your client? If you told the cop, “get out of the way, my client has a right to see his attorney during custodial questioning,” and the cop immediately arrested you for obstruction, would the law be on the side of the police?
I disagree with your last point. A Terry stop is for reasonable and articulable suspicion that crime is *then and there *occurring. They suspected this guy of a previous burglary, but not one that he was committing in the courthouse. Unless they are armed with an arrest warrant, he may cover his face or tell them to get lost. A third party (whether or not acting in a capacity as an attorney) may tell him that he can cover his face or refuse to talk.
There is a difference (that sadly the police in many cases do not make) between obstructing an investigation and simply refusing to actively or passively assist an investigation. The first amendment protects the latter.
They can ask questions.
Anyone can take photos.
But can the police detain you during a stop, but not an arrest, order you to pose, to remove your hand from in front of your face so they can get a picture, open your jacket and show us the colour of your shirt, etc.? Can they grab your arm and pull up your sleeve looking for tattoos?
I.e. to what extent can they elicit non-testimonial evidence?
Obviously they can’t demand your fingerprints or a blood sample (I hope). Are they simple limited to verbal questions?
In McNeil, the argument you offer was equally available: that the collateral effects of the represented charge would affect the unrepresented charge, and yet the Court rejected the view that representation carried over.
Do you contend otherwise? What about McNeil distinguishes it from your theory? If your view is correct, how do you reconcile it with the result in McNeil and its progeny?
Yes, there is: current case law is clear on the issue.
Perhaps you’re imagining that this is Great Debates thread entitled, “SHOULD the Court reverse McNeil and find a Fifth and/or Sixth Amendment Right to Counsel When Already Represented In Another Case?”
Such a thread would absolutely be the place for “contemplat[ing] the issues and hav[ing] a vibrant exchange of ideas,” and you could share your uncited views of what the law should be.
But the mere fact that some Supreme Court cases are 5-4 does not transform them into somehow lacking legal effect.
And since THIS forum is for factual answers, the lack of any citation to your claims is fatal to them.