A recent case from the 5th District Court of Appeals, State v. McCune, demonstrates that you must specifically and unambiguously state that you want to speak with an attorney prior to questioning in order to exercise that right.
Right to an Attorney in Ohio During Police Interrogation
During a police interrogation, a person has the right to remain silent and the right to be represented by an attorney. These rights come from the famous case of Miranda v. Arizona (i.e., the case that created “Miranda rights”). The right to an attorney comes from the right to remain silent.
Prior to any police interrogation (called a “custodial interrogation”), everyone must be informed of their Miranda rights, including their right to remain silent and to an attorney. Once a person exercises his or her right to counsel, law enforcement must cease the interrogation and may not initiate any further questioning until an attorney is present.
However, a person may waive their Miranda rights, but the waiver must be voluntarily. This is reviewed under a “totality of the circumstances” test, which factors in the person’s age, prior criminal experience, the length and intensity of the interrogation, the existence of any threat or inducement, and the existence of any physical deprivation or mistreatment.
To invoke the right to have an attorney present during interrogation, a person must unambiguously request counsel, such that a reasonable officer would understand the statement to be a request for an attorney. See Davis v. United States. If the statement requesting an attorney is not clear, then law enforcement is not required to stop questioning the person. Statements such as “I think I need a lawyer” or “Well, can I have a lawyer be present?” have been found to be ambiguous and, thus, the interrogation does not have to cease.
Facts of McCune
On May 23, 2016, several officers from the Delaware Police Department responded to a call of a man exposing himself at a fast food restaurant. The man was arrested and taken to the police department. He was interrogated by police for 20 minutes, with an officer reading him his Miranda rights from a rights and waiver form. The man asked about having an attorney being present, and the officer advised that if he wanted an attorney, he needed to stop talking.
The man signed the document waiving his Miranda rights and the officer began the interrogation. The man asked the officer if he should wait for an attorney before answering any questions. The officer told him that was a decision that the man had to make. The man then asked if he would be going to jail and what the charges were going to be. After answering both questions, the man stated “I did it.”
The man ultimately was charged with public indecency pursuant to R.C. 2907.09. The man’s attorney filed a motion to suppress any statements made by the man. However, the trial court denied the motion and the man entered a no contest plea to the charge. Subsequently, the man filed an appeal of the trial court’s decision to deny his motion to suppress.
However, the man’s appeal was denied. There was no evidence that the officer coerced the man’s confession as the officer provided Miranda warnings, and the man understood and waived them. Furthermore, the man did not make an unambiguous and unequivocal request for an attorney. Asking how to get an attorney and whether he should wait for an attorney was deemed to be insufficient to justify a finding that the man requested an attorney.
An Unambiguous Request for an Attorney
So, what should you do if you are arrested and interrogated by the police? The only thing you should say is, “I want to speak with an attorney before answering any questions.” Do not ask whether you should speak with an attorney or have an attorney present during questioning. You must state, unequivocal, that you want to speak with an attorney before answering any questions. Otherwise, you risk having what occurred in McCune happening to you.
Columbus and Delaware, Ohio Criminal Defense Attorney
If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your criminal offense case.
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