When a person is arrested for a criminal case in Florida, he/she has a right to speak with an attorney prior to giving any statement to police and have an attorney present during questioning if he/she wants to talk to the police. We feel it is very important that everyone understand their Constitutional rights before talking to the police about a crime and potentially drastically changing the way their criminal case will proceed. The best thing for a defendant to do is be clear and firm about his/her desire to speak to an attorney prior to giving any statement to the police. A vague or qualified request to speak to a criminal defense lawyer may not be sufficient to trigger one’s Constitutional rights.
In a recent murder case south of Jacksonville, Florida, when the defendant was being arrested, he called his mother to tell her to contact his criminal defense attorney. His mother did and relayed a message from the criminal defense lawyer back to the defendant to remain silent and he would meet with him as soon as possible. The criminal defense lawyer immediately contacted the police department by phone and fax indicating that he was invoking his client’s Sixth Amendment right to remain silent.
The police officers took the defendant into an interrogation room and started to question him. The defendant did not invoke his Sixth Amendment right to remain silent and made an incriminating statement. The criminal defense attorney went to the police station where his client was being interrogated, but the police would not let him in to see his client.
After the defendant was arrested, the criminal defense lawyer filed a motion to suppress the incriminating statement. The judge agreed and threw the statement out. Even where the defendant does not invoke his Sixth Amendment rights and request a lawyer, his constitutional right to an attorney is violated where his attorney is present and requesting to see the defendant but the police do not inform the defendant that his attorney is present.
Therefore, it is a Due Process violation where the police are questioning a suspect and his/her lawyer is present requesting to see the client but the police do not allow the lawyer to see the client or inform the client that his/her attorney is present. If, under those circumstances, the police continue questioning the defendant, the defendant’s statement should be thrown out.