Legal Question in Criminal Law in California

Re: 5th Amendment - Interrogation Right Question

I see that three other lawyers have answered your question, and so I will not repeat the rules of law already stated by them. I will say that you asked a very good question, and one that is exciting to criminal defense attorneys (which is probably why you received so many responses.) We see police violating the Constitution every day of the week, and what you have described is not unusual. I always tell my clients and friends that "there is no Constitution out on the street," as is clearly evidenced by your experience. Once we get into the Courtroom however, we can fight with the Constitution in our fists. Assuming that what you have described is accurate, you have a good motion to suppress.

Re: 5th Amendment - Interrogation Right Question

Your question says that the defendant was not under arrest, but that really isn't the key issue. Rather, the key is whether he was in custody. People can be -- and often are -- in custody before the police make a formal arrest. Explaining what does or does not amount to custody would take far more space than this site allows for an answer, and you have not provided much factual information about the circumstances under which the questioning took place. My sense is that the defendant was in custody but I would want to know more before I could offer anything more than a guess.

Mr. Nudelman's answer says that the police are supposed to stop asking questions when the interviewee asks for a lawyer, but this is only true of the interviewee is in custody. It would still be better practice to wait for an attorney even if the interviewee is not in custody, but I am not aware of any case or statute that says police are required to do so.

Assuming the defendant was in custody, the police were required to stop questioning him as soon as he made it clear that he wanted a lawyer. Saying things like "Shouldn't I have a lawyer?" or "I think I want to talk to a lawyer" probably aren't enough to require the police to stop, but if the statements were more definite then the questioning probably should have ceased. If the police contined the interrogation then a motion to suppress the resulting responses -- along with any other evidence the police obtained as a result of those responses -- should succeed.

There are exceptions to these requirements, though, and you have not offered enough facts to say whether one of the exceptions applies. For example, if the police have reason to believe that the suspect left something imminently dangerous (like a loaded gun) where it could harm people unless immediately recovered, they can keep questioning the defendant about it. Questions not reasonably related to removing the danger would still be improper, though.

Re: 5th Amendment - Interrogation Right Question

If a suspect has requested an attorney, then in theory, the police should halt their questioning. If you would like to discuss this further, please call t (800) 313-9619

Re: 5th Amendment - Interrogation Right Question

Thank you for your posting.

Your question really goes to the heart of a 5th amendment issue. The 5th amendment and the cases interpreting it requires that miranda rights be given before custodial interrogation. As a result, a good attorney will review the facts, and the legal issues involved, in a police report, audio, or video tape (or sometimes written confession), and bring, wherever necessary, a motion to suppress evidence. That may be the case here.

I hope that this information helps, but if you want more information, have further questions, or feel that you need legal representation, please feel free to email me directly at [email protected]. It's my pleasure to assist you in any way that I can.