Rights on arrest and detention

When Reyes told Dana Whitcomb she was under arrest, she followed with words she had practiced dozens of times at the academy and read from a card in her notebook the first few months on the road. Whitcomb listened, nodded and asked one question: 'Do I have to call a lawyer?' Reyes explained that she did not have to, that it was her choice, and how she could do it if she wanted to. Whitcomb said she understood and did not want to. Reyes wrote down the time, the words she had used, Whitcomb's answer and the fact that Whitcomb had repeated it back in her own words.

Desjardins calls the moments after an arrest 'the rights moment'. It is short, it is often noisy, and it matters enormously. The law requires officers to tell people why they are being arrested and what rights they have, and it requires officers to respect those rights once they are asserted. Mistakes here are among the most common reasons statements and other evidence are excluded at trial. They are also among the easiest mistakes to avoid.

The right to know why

Ohio law requires an officer making an arrest without a warrant to inform the person of the officer's authority and the cause of the arrest, under section 2935.07 of the Revised Code, except when the person is in the act of committing an offense or is pursued immediately afterwards. The U.S. Constitution does not set a precise script, but due process and the Sixth Amendment require that a charged person be informed of the nature of the accusation, and telling people the reason at the time of arrest is standard practice because it reduces confusion and resistance. Reyes told Whitcomb she was under arrest for stealing items from the pharmacy, which was enough.

Haddad tells the class that telling a person why they are being arrested is also a safety practice. 'People resist what they do not understand,' she says. 'When Riley Dunn was on the ground outside the Anchor Tavern, the first thing Malhotra said once he had control was “You are under arrest for assaulting the doorman.” He said it twice, calmly. It did not stop Dunn from swearing, but it gave him something to argue with other than our hands.'

The right to counsel

The Fifth Amendment protects against compelled self-incrimination, and Miranda v. Arizona in 1966 requires police to warn a person in custody, before interrogation, that they have the right to remain silent, that anything they say can be used against them, that they have the right to a lawyer and that a lawyer will be appointed if they cannot afford one. The warnings are required before custodial interrogation, not at the moment of arrest, although many agencies give them early. Once a person clearly asks for a lawyer, questioning must stop until a lawyer is present or the person starts the conversation again, as Edwards v. Arizona held in 1981. Ohio adds its own statute: under section 2935.20 of the Revised Code, a person in custody must be allowed forthwith to communicate with an attorney of their choice, or with another person to obtain one, through a reasonable number of telephone calls or other reasonable means, and officers who prevent this can be fined or jailed.

Officers in Ohio usually read a standard Miranda card. A person can waive the rights, but the waiver must be knowing, intelligent and voluntary. Under Berghuis v. Thompkins in 2010, a person who wants to stop questioning must say so clearly; silence alone is not enough to invoke the right, but officers who continue questioning someone who has said they want a lawyer risk losing everything the person says.

When the person does not understand

Riley Dunn was not in a state to understand much of anything when he was arrested. He smelled strongly of alcohol, his speech was slurred and he kept asking where his jacket was. Malhotra told him why he was being arrested on the sidewalk, and Dunn answered with a string of swearing. Nobody asked Dunn any questions about the assault that night. Sergeant Larocque noted that he was too intoxicated to give a valid Miranda waiver, so no one would try to interview him until he was sober. At 07:30 the next morning, sober and quiet, Dunn asked to call a lawyer; the booking officer let him use the telephone, as Ohio's statute requires, and he left a message for an attorney his brother had used. A waiver given by someone too intoxicated to understand it will rarely be treated as knowing and intelligent.

The same care applies to people who do not speak English or French well, people who are deaf or hard of hearing, people with cognitive disabilities and young people. Young persons have additional protections under Ohio's juvenile law and the U.S. Supreme Court's decision in J.D.B. v. North Carolina in 2011, which held that a child's age is relevant to whether they are in custody for Miranda purposes, as the students studied in the youth justice course. Officers should use interpreters, plain language and written versions of rights as needed. 'If you are not sure the person understood, they probably did not,' Larocque says. 'Try again, differently.'

Asserting the right: Mason Pruitt

When Reyes arrested Mason Pruitt on Lakeshore Road, she told him the reason. Malhotra read him his Miranda rights from the card before any questioning. Pruitt said, 'Yeah, I want a lawyer.' From that moment, no one asked him anything about the pills or the messages on his phone. When Pruitt started talking in the car about how the pills were not his, Malhotra did not respond with questions and wrote down what Pruitt said word for word. Statements a person volunteers without interrogation are generally admissible. At the station, Larocque made sure he could use the telephone to call a lawyer, as section 2935.20 requires. Detectives did not try to interview him.

Desjardins points out the difference between not questioning a person and refusing to listen. Officers do not have to stop a person from talking, but they must not prompt, encourage or bargain. The Supreme Court defined interrogation in Rhode Island v. Innis in 1980 as express questioning or its functional equivalent: words or actions police should know are reasonably likely to elicit an incriminating response. Malhotra's approach, reminding Pruitt of his rights and writing down what he said, was the right one.

When circumstances change

If police later decide to interview a person who has invoked the right to counsel, they must wait for the person to start the conversation, or for a lawyer to be present. The Sixth Amendment right to counsel attaches once formal proceedings begin, such as at the initial appearance, and it applies to later interrogation about the charged offense. Reyes learned this lesson later that night when the drug unit, looking at the markings on Pruitt's pills, told detectives that some of them were likely counterfeit tablets containing fentanyl. The jeopardy had changed, and the detectives handled the rights again before any further step.

Other rights on arrest

Several other rights apply to people in custody. A person arrested without a warrant is entitled to a prompt judicial determination of probable cause, generally within 48 hours, under Gerstein v. Pugh in 1975 and County of Riverside v. McLaughlin in 1991, and Ohio's criminal rules require that an arrested person be brought before a court without unnecessary delay. Foreign nationals have the right to have their consulate notified under the Vienna Convention on Consular Relations, and many services have a policy of asking every arrested person whether they are a citizen. People also have a right to medical care when they need it, which later lessons cover in detail.

Calls to family and other requests

After Dana Whitcomb said she did not want a lawyer, she asked whether she could call her sister to tell her she would be late picking up her daughter from school. Ohio's statute is about communicating with a lawyer or someone who can help obtain one, not about family calls in general. But nothing prevented the call, and Port Ardent's policy allows officers to let a person make or arrange a call to family when it will not risk evidence or safety. Reyes let her call from her own phone, in Reyes's presence, and noted it. 'There was a child waiting at a school,' Reyes said. 'That's part of the duty of care too.'

Officers sometimes have good reasons to delay or refuse a call to someone other than a lawyer, for example when the person might warn an accomplice, arrange for evidence to be destroyed or contact a victim. Those reasons must be real and recorded. A blanket refusal to let anyone make any call is rarely justified. And no reason justifies delaying access to counsel once a person has asked for it, except a genuine and specific urgent safety concern, which must be recorded and must last only as long as the concern does.

Interpreters and plain language

When a person does not speak English or French well, officers should use an interpreter, in person or by telephone, rather than a family member, a bystander or a colleague who speaks a little of the language. Interpreters should interpret the rights word for word and then the person's response. Many services also have the rights printed in dozens of languages, which helps but does not replace an interpreter, because the person may not read well or may have questions. For people who are deaf, sign language interpreters are needed; writing back and forth may not be enough, especially for people whose first language is a sign language.

Plain language matters for everyone. Desjardins suggests that after reading the formal rights, officers ask the person to explain in their own words what they have been told. A person who says 'I can call a lawyer and it's free' has understood something important. A person who says 'I have to answer your questions' has not, and the officer needs to explain again. Writing down the person's own words protects everyone if the question is ever raised in court.

Rights and safety

Officers may ask questions necessary to deal with an immediate threat to public safety before giving Miranda warnings, under the public safety exception recognized in New York v. Quarles in 1984. Desjardins warns that these exceptions are narrow. 'If you use the safety exception to ask a person where they hid the drugs, you will lose the answer,' he says. 'If you use it to ask whether there is a needle in their pocket before you search them, you are using it the way it was meant.'