Mirandizing an Attorney

[Chewy65]

If a civilian requests to make a cell call to an attorney during his detention, must he permitted to do so? Assume that he has not been arrested, this is a temporary detainer and not a de facto arrest. Does it make any difference that he said he didn't practice criminal law and wanted to speak with a criminal law attorney?. I am not interested in what the actual law may be, I am not a LEO and could care less what the courts say. I just wonder what working officers think.

[bk23103]

I read that four times without understanding the question. But, no, you don't have to be mirandized unless you're being questioned with the reasonable belief that you are not free to go.

[turbolarry]

If a civilian requests to make a cell call to an attorney during his detention, must he permitted to do so?
Assume that he has not been arrested, this is a temporary detainer and not a de facto arrest.

No. A temporary detention is just that; temporary, while additional facts are being gathered.

Does it make any difference that he said he didn't practice criminal law and wanted to speak with a criminal law attorney?

No.

[Chewy65]

Apologies to bk23103 to turbolarry for my poorly worded question and thank you for their expertise. The incident in question was amicably resolved, but I wonder what could have happened if the officer made good on this threat to arresst the suspect. While there was no Miranda given, the issue was if the officers should have permitted it. Assume that this person reasonably believed that they were not free to go and that they were either arrested or would be arrested, Should they have been allowed to make the call? Assume the detention was for longer than reasonably necessary to determine if there was PC to determine that a crime had been comitted.

[Nego]

Apologies to bk23103 to turbolarry for my poorly worded question and thank you for their expertise. The incident in question was amicably resolved, but I wonder what could have happened if the officer made good on this threat to arresst the suspect. While there was no Miranda given, the issue was if the officers should have permitted it. Assume that this person reasonably believed that they were not free to go and that they were either arrested or would be arrested, Should they have been allowed to make the call? Assume the detention was for longer than reasonably necessary to determine if there was PC to determine that a crime had been comitted.

You have the right to remain silent your call is given to you when they decide to do so. Meaning just because u ask for a call doesn't mean they will give u one right then. 90% of the time you Don't get your call till you are booked and in a holding cell. If they have detained you for an investigation you have no right to a call. You DO have the right to remain silent. It's on the cops if they have enough to arrest you at that point. Hope that helps

[P5Ret]

I would not allow someone that I was detaining to make a phone call. I don't care who they say they are calling. Too many bad things can happen when they call someone, and that person/s shows up at the scene. I've seen it happen during a DUI stop where the passenger called "family and friends" who all showed up at the stop. It was not a happy ending for many of the participants myself included.

[Nego]

I would not allow someone that I was detaining to make a phone call. I don't care who they say they are calling. Too many bad things can happen when they call someone, and that person/s shows up at the scene. I've seen it happen during a DUI stop where the passenger called "family and friends" who all showed up at the stop. It was not a happy ending for many of the participants myself included.

Fact

[Chewy65]

Thanks for your all your explanations.

[Nego]

Thanks for your all your explanations.

Best wishes Sir

[Chewy65]

Best wishes Sir

Shalom

[RickD427]

I don't know of any published case law on the point.

As a matter of practice, LEOs will generally not allow a person who is subject to a field detention to make telephone calls. It's primarily a safety issue, in the late 90's, after cell phones became popular, deputies at my station had multiple cases where detainees used their cell phone to summon fellow gang members to the scene, we adopted a practice of securing cell phones during detentions as a result. No legal challenges resulted.

If there is an issue with regard to the Miranda decision that a person who is subjected to a custodial interrogation has the right to speak with an attorney, the law on that point is pretty well settled that the subject must be permitted to consult before the interrogation can proceed.

But there are two key points to remember:

1) The right to confer with the attorney is triggered by a custodial interrogation. It is not triggered simply because the subject is detained. If the nice LEO elects not to continue a discussion upon the request for an attorney consult, the right to consult goes away until the completion of booking. At that point the subject has a separate right to call their attorney under PC section 851.5.

2) There has been a considerable shift in the case law as to what constitutes a "Custodial Interrogation." Many, many, years ago (please note the absolute past verb tense being used here), the operative test of a "Custodial" setting was to ask if the subject was free to leave. If they were not free to leave, then a "custodial" environment was deemed to exist. That ain't the case no more. The current case law looks to the setting in which the questioning has occurred and evaluates how coercive that setting is to statements made by the subject. The best operative test now is "Does the subject reasonably believe they're going to jail?"

[Chewy65]

RickD427. Good to see you are still around. You may recall that I my criminal law practice was extremely limited. The practice of disallowing on scene teephone calls on ba;lance appers a good one. The relationship between a simple detention and one with interrogation is well said.