Is a defendant allowed access to an attorney when questioned by the police?
Not in Pasco County, Florida – Until this week, a Pasco Criminal Defense Attorney could be denied access to a client who was under interrogation by detectives. A running joke in this small Florida county was that, “The Supreme Court closes at 5 o’clock.” The cops here run over defendant’s rights with great pride and have the support of the Prosecutors.
“he must be clearly informed that he has the right to
consult with a lawyer and to have the lawyer
with him during interrogation”
Is a defendant allowed access to an attorney when questioned by the police? Let’s take a look at the issue as decided by the Florida Supreme Court. Pasco County detectives were up to their old tricks in violating a defendant’s rights in a murder case. The Florida Supreme Court has reversed a murder conviction.
A Pasco County Criminal Defense Attorney retained by the family arrived at the police interrogation. After determining that The defendant was being interrogated in the building, the deputy at the counter advised the attorney that it would not be possible to convey any information to the location where The defendant was being questioned by any means, including e-mail, telephone, a knock on the door, or even a note slipped under the door. Although the attorney stated:
“I want all questioning to stop.
I don’t want anymore [sic] questioning
to go on without my presence.”
The attorney was not allowed to see or otherwise communicate with the defendant in any manner. Facing that insurmountable obstacle, the attorney departed from the sheriff’s office at 2:17 p.m., just ten minutes before the defendant commenced his confession. The defendant was first informed about the presence of the attorney only after he directed the detectives to the burial site.
What is in the Miranda Warnings?
We have all seen countless television shows where cops give warnings to suspects. Apparently these cops did not watch television or chose to avoid the important provisions of the landmark Constitutional decision, Miranda v. Arizona, 384 U.S. 436 (1966). However, we can go right to the language used by the United States Supreme Court to see what they told police and prosecutors 50 years ago:
“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.” Miranda v. Arizona, 384 U.S. 436 (1966). Let’s see what the Florida Supreme Court said about this type of police conduct.
“defendant’s statement resulted from a law enforcement officer’s illegal actions,
that evidence is ‘fruit of the poisonous tree’ and the trial court should exclude it
Pasco Criminal Defense Attorney Case Excerpts
“In light of the foregoing, we hold that McAdams’s right to due process under the Florida Constitution was violated when law enforcement officers failed to inform him that an attorney retained by his parents had arrived”
“There is not necessarily a single specific comment, question, or circumstance that converts an encounter from noncustodial to custodial. A situation can commence as a voluntary interaction with police, but slowly intensify and become more pressured, pointed, and accusatory until it evolves into custodial status.”
“[W]e hold that when a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody.”
“In Miranda, the Supreme Court explained that: the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. 384 U.S. at 467. Failure to provide the Miranda warnings prior to custodial interrogation generally requires exclusion from trial of any post-custody statements given. Missouri v. Seibert, 542 U.S. 600, 608 (2004); see also Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013) (“[I]f a defendant’s statement resulted from a law enforcement officer’s illegal actions, that evidence is ‘fruit of the poisonous tree’ and the trial court should exclude it from trial.”).”
Florida Association of Criminal Defense Lawyers Summary
Here is the Florida Association of Criminal Defense Lawyers Summary of State v. McAdams, 41 Fla. L. Weekly S167a (Fla. 2016) – This matter is before the Court for review of the decision in McAdams v. State, 137 So. 3d 401 (Fla. 2d DCA 2014). In its decision, the district court ruled upon a question that it certified to be of great public importance. The Sheriff’s Office was notified that Lynda, the estranged wife of McAdams, and her boyfriend/coworker, Andrews, had been reported missing by concerned family members. A detective was questioning McAdams at the police department, when an attorney hired by his parents arrived. McAdams was first informed about the presence of the attorney only after he showed detectives where the victims were buried. When an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney’s presence and purposes, regardless of custodial status. His right to due process under the Florida Constitution was violated when the officers failed to inform him that the attorney had arrived. Although custodial status is irrelevant to a person’s right under the Florida Constitution to know that an attorney retained on his or her behalf is present at the location where he or she is being questioned, the trial court and district court erred when they’’determined he was not in custody before he confessed to the homicides. A Miranda violation’’occurred when his confession was admitted during the trial. Although he was not in custody’’initially when he voluntarily accompanied law enforcement to the sheriff’s office, the evolving’’circumstances would lead a reasonable person to conclude that he or she was not at liberty to’’terminate the encounter and depart from the sheriff’s office. The erroneous admission of the’’highly detailed confession was not harmless error.
State v McAdams http://www.floridasupremecourt.org/decisions/2016/sc14-788.pdf
Miranda v. Arizona, 384 U.S. 436 (1966).