Scenario 2

[wpd11]

Please note that I am in Oregon and you are in Ohio. You have done this before where you assume that the laws are the same in other states as they are in your state. The only laws that are guarenteed to be the same are federal. The only case laws that we are both bound to are decided by the US Supreme Court. We are bound by differing circuit courts, so different case laws apply.

I am aware of the different State laws. Just looking at the totality of circumstances. In the above post of LINE-UPS this is federal case law. And the Amendments apply to us all

[Lfpdlieu302]

Ok first of all I do not claim to know everything, but I do claim to know this law because it is fact. THERE IS CASE LAW ON THIS. That is all, I am not an expert and I dont make the laws but I do know this law because I have delt with it. Here is the case law you wanted. This is the basics you should really read the Amendment.

i see you changed the original post.

[wpd11]

i see you changed the original post.

I have no clue what you are talking about????????? Why do you want to single me out to argue with me. You said you wanted to see the case law so I posted it for you. I will post nothing else to your replies or comments.

[Lfpdlieu302]

The need for officers with a college education is apparent. This is the reasoning for Case law. I am not trying to argue with anyone but why would you not want to have counsel there for the defendant? Would you be hiding something, are you afraid of attorneys? I dont understand. You have to call the attorney if defendant asks for them.



.If my client was so drunk then why would you let them alone in a room for 20 minutes not knowing what they was doing?

Did you watch my client to make sure he/she didnt put anything in there mouth that could have made the reading hire over this 20 minute period?

O I C you didnt then how do you know that my client didnt find something in the room such as breath mints or bubble gum that he/she was in for twenty minutes by thereself that made the reading hire on the B.A.C.

Was you aware that my client fell to the ground and layed there for 15 minutes in pain trying to get your attention for help as they was under the influence and you failed to keep a close eye on her/him.

You do know you are responsible right?

This is just the tip of the iceburg

i'm not trying to pick on you here man, but if you're gonna talk ****, then at least back it up. you're talking about the need for college educated officers, yet you write like this? and yes, if a suspect asks for an attorney, he has the right to call one (notice i say HE can call one, i'm not going to do it for him). i personally (and doubt that any other officer on this board) do not fear attorneys or their tricks. you can what if a situation to death if you want, what if frogs had machine guns? then birds wouldnt mess with them. heres what i found about the lineups:

The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense.

Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has consistently held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel. 5

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The Solicitor General states:

When petitioner was Identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States Federal Supreme Court, 378 US 478, 1964). Since petitioner in the course of his Identification in the police line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his right to be assisted by counsel because the accusatory process had not yet set in. The police could not have violated petitioner's right to counsel and due process as the confrontation between the State and him had not begun. In fact, when he was Identified in the police line-up by complainant he did not give any statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal charge. Far from what he professes, the police did not, at that stage, exact a confession to be used against him. For it was not he but the complainant who was being investigated at that time. He "was ordered to sit down in front of the complainant while the latter was being investigated" (par. 3.03, Petition). Petitioner's right to counsel had not accrued. 6

Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause for claiming a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts of the case and the votes of the Justices therein are summarized as fellows:

After arresting the petitioner and a companion and bringing them to a police station, police officers learned that certain items found in their possession had been stolen in a recent robbery. The robbery victim was brought to the police station and immediately Identified the petitioner and his companion as the robbers. No attorney was present when the Identification was made, and neither the petitioner nor his companion had asked for legal assistance or had been advised of any right to the presence of counsel. Several weeks later, the petitioner and his companion were indicted for the robbery. At trial in an Illinois state court, the robbery victim testified that he had seen the petitioner and his companion at the police station, and he pointed them out in the courtroom and Identified them as the robbers. The petitioner and his companion were convicted, and the Illinois Appellate Court, First District, affirmed the petitioner's conviction, holding that the constitutional rule requiring the exclusion of evidence derived from out-of-court Identification procedures conducted in the absence of counsel did not apply to pre-indictment Identifications (121 III App 2d 323, 257 NEE 2d 589).

On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In an opinion by STEWART, J., announcing the judgment of the court and expressing the view of four members of the court, it was held that the constitutional right to counsel did not attach until judicial criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court Identifications in the absence of counsel did not apply to Identification testimony based upon a police station show-up which took place before the accused had been indicted or otherwise formally charged with any criminal offense.

BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the right to counsel did not attach until criminal charges were formally made against an accused.

POWELL, J., concurred in the result on the ground that the exclusionary rule should not be extended.

BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although Supreme Court decisions establishing the exclusionary rule happened to involve post-indictment Identifications, the rationale behind the rule was equally applicable to the present case.

WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary rule governed the present case. 8

Mr. Justice Stewart, expressing his view and that of three other members 9 of the Court, said:

In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it 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. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90 S Ct. 1999.

This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. (Emphasis supplied). 10

As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee of the right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while, under the latter, the right to counsel "attaches only at or after the time that adversary judicial proceedings have been initiated against him (the accused)," under the 1973 and 1987 Philippine Constitutions, the right to counsel attaches at the start of investigation against a respondent and, therefore, even before adversary judicial proceedings against the accused have begun.

Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police investigation the right to counsel, this occasion may be better than any to remind police investigators that, while the Court finds no real need to afford a suspect the services of counsel during a police line-up, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel.


the last paragraph says it all. once i ask him something, its a different ball game.

[Lfpdlieu302]

Ok you are a confussed police officer. First of all you do not have to let anyone make any phone call from any phone at your deparment. The county jail must let a individual make a phone call within 2 hours upon arrival for bail purposes and so family members will know where they are. And second of all a DUI is completely different as a drivers license is a privelege to have. When anyone in the United States applies for a license they are signing away there rights and are stating that they will in fact take a B.A.C. test when asked by a law enforcement officer. There attorneys showing up for this is not required and you dont have to let the attorney in. But I will say it again and I will post the case law real soon on this during a line up if an attorney is requested then you better get them there, as this is law.

and to answer your last post, i'm not picking on you. this quote here is what got me upset. dont call anyone confused because they disagree with you or do things different. you had a know it all attitude on this thread and after i called you on it, you changed the thread that i had quoted. thats all. besides that, the argument here is quite informative.

[mcsap]

Fortunately, we do not require officer's to have a degree. I would MUCH rather have an officer with GOOD common sense. Being book smart does not necessarily mean being street smart. The best group of officers we have are the ex-military ones. Degree or not, they are overall the best.

We advise our DUI's that they do NOT have the right to talk to ANYONE between the actual arrest and the taking of the blood test. Not an attorney, not their mother , NOBODY. The bac test is a civil procedure and that is our state law. It has held up FINE over the last several years.

After the blood test, they can request an attorney. Do we have to let them make the call ? NO ! Of course we can't further interrogate them but can still get the basic info plus process them for prints and photos.

When do WE have to let them make a phone call ? NEVER. Only AFTER they have been arraigned in front of a judge and the judge advises them they can call for bail are they allowed to make a call. Even then, if they are acting up, the judge will tell us to transport to the jail and they can call from the jail when they settle down.

[gdowkpc]

I wish we were like that, but we are not. We must allow the phone call, if requested. Again, I do not know if the penalty for not allowing the call is civil (DMV hearing) or criminal.

Just last week, I arrested a guy for DUII (felony level) and hit and run. I had to allow the phone call to the attorney because he requested one. he had been around the block a few times and was using the 20 minute phone call as a way to allow for the dissipation of the alcohol in his system. THIS SUCKS. I belive he never actually talked to an attorney, just pretended to.

He ended up refusing, which was actually a good thing, because he was sobering up (it had been 1 1/2 hours since the arrest when I asked him if he would take the breath test). I a $1,000 ticket for refusing, suspended his D.L. until 2009, and still took him to jail for DUII.

[gdowkpc]

I did some checking and it is in the criminal case law here. I don't know how high the court decision is (ie, state supreme court or 9th circuit).

I don;t have time right now to look it up, but someone said it was "state vs. Durbin".

[Jynkxxie]

O.k. remember that I have not slept in what seems like forever...But this is what I turned in today. I still have no clue on the second answer...so I BS'd a little today. I also pulled a source I found online today as my text was pretty vaige.

From the text, Criminal procedure, Fifth Edition, by Joel Samaha page 413-414, "The court also has decided that defendants have a right to have their lawyer present at lineups and show up is only after their formally charged, but because almost all identification procedures take place before charges are filed, we don't need to discuss the Sixth Amendment right to counsel. That leaves the fifth and 14th Amendment due process clauses, which the court has relied on almost exclusively to decide the constitutionality of eyewitness identification procedures."

In this case, it states that Ursula was taken into custody by police officer who made a warrantless arrest. The basis for my answer stems from a source located, www.lawspirit.com, Chapter 6, Page 4.

III. The right to counsel at pre-trial confrontations.

A. Rules generally: a suspect against whom formal criminal proceedings had been commenced has an absolute right to have counsel present at any pre-trial confrontation procedure. Such confrontations include both lineups (in which a witness picks the suspect out of a group of persons) and show-ups (in which the witness is shown only the suspect and ask whether the suspect is the perpetrator). [U.S. v. Wade; Gilbert v. California] [242]

C. Exceptions to the right:

1. Before formal proceedings against D: "The right to have counseled at the pretrial confrontation public applies only to confrontations occurring after the institution of formal proceedings against the suspect. [ Kirby v. Illinois] the right will be triggered by the fact that D has been formally charged, given a preliminary hearing, indict it, arraigned, or otherwise subjected to formal Judiciary proceedings. Probably the right is triggered if an arrest warrant is issued; but the right is probably not triggered if D has merely been arrested without a warrant and then put in the lineup or show-up.

(Answer)

My answer for question number one of this scenario is based on the following statement in Chapter 6, page 4, Lineups And Other Pretrial Identification Procedures:

1. Before formal proceedings against D: "The right to have counseled at the pretrial confrontation public applies only to confrontations occurring after the institution of formal proceedings against the suspect. [ Kirby v. Illinois] the right will be triggered by the fact that D has been formally charged, given a preliminary hearing, indict it, arraigned, or otherwise subjected to formal Judiciary proceedings. Probably the right is triggered if an arrest warrant is issued; but the right is probably not triggered if D has merely been arrested without a warrant and then put in the lineup or show-up.

` Per Professor Boak, on March higher 18, 2004, in Michigan, a around us at least, there is always counsel present whether be pre-charge or post-charge this way there is never a problem.

My answer for question number two of this scenario is based upon my assumption, that because this lineup did not require or allow it counsel be present, that this lineup is not “fruits of the poisonous tree", and therefore in any in-court identifications would be a separate issue. Had the defendant Ursula, been formally charged and the participant in a lineup where counsel was demanded and denied, then this lineup would have been in violation of Ursula's right to counsel and would not be admissible in court. However, this would not automatically rule out the in court identification. Again, to me, be in court identification presumes to be a separate issue.

[gdowkpc]

I mentioned state v. Durbin above.

Here is the link to the publication that indicates police in Oregon must allow a subject who is under arrest for DUII the ability to speak with counsel and in privacy.

http://www.publications.ojd.state.or.us/A105880.htm

It also refers to several otehr cases that require us to allow counsel communication.

[Jynkxxie]

O.k. Well I tried to keep State Law at a Min. Here from what I read was for U.S. Constitutional Law. Here, in Michigan we have council there either way. So I tried to keep these questions Federal, as each state has to have at least these provisions in their constitution. If they, as I see Oregon did, want to extend more rights then that is fine, but because these questions could have gone either way...I left answering federally.

Thanks for the link though. Like I said, I am interested to see what he responds with next week.

[gdowkpc]

I think that is a good way to go.

[HiTechCj]

Greetings:

The line-up is most likely inadmissable ".--The concept of the ''critical stage'' was again expanded and its rationale formulated in United States v. Wade, 273 which, with Gilbert v. California, 274 held that lineups are a critical stage and that in-court identification of defendants based on out-of-court lineups or show-ups without the presence of defendant's counsel is inadmissible."

However, the idea of a field identification is good and probably admissable as long as -
1. The wits are taken to the offender.
2. The wits are told the purpose is to preculde as well as identfy.
3. It doesn't take too long.

Raymond
www.hitechcj.com

[coucousis]

Greetings:

The line-up is most likely inadmissable ".--The concept of the ''critical stage'' was again expanded and its rationale formulated in United States v. Wade, 273 which, with Gilbert v. California, 274 held that lineups are a critical stage and that in-court identification of defendants based on out-of-court lineups or show-ups without the presence of defendant's counsel is inadmissible."

However, the idea of a field identification is good and probably admissable as long as -
1. The wits are taken to the offender.
2. The wits are told the purpose is to preculde as well as identfy.
3. It doesn't take too long.

Raymond
www.hitechcj.com

Well I can't say for other states or country but down here I'm not so sure that bringing the witness straigth to the suspect would be such a good idea... I've never tested it in court as most of the time the identification of a suspect is corroborated by other evidence!!! However I could easily see a good defense lawyer argue that showing a suspect, sitting inside a police car, could lead the witness to immediatly be influence by the whole situation. It would be the equivalent of an identification parade with a sole individual in the room.
From my experience when we set up a parade the witness is not suppose to know if the suspect is in the parade or not... therefore we shall set up at least 2 board of 5 or more and show them both to the witness. This way we are sure that the witness does not show up in front of the window knowing the suspect is in the parade but rather letting his memory do the job.

I have brougth witness to suspect and still do it as of today but the big question would be <should that be our sole proof ..... would it stand in court????> Better off getting a good incriminating statement after the identification to build up a bullet proof case.... !