QUESTION
Do I have the right to a phone call before an arrest?
Asked on Aug 16th, 2013 on Criminal Law - Michigan
More details to this question:
I was walking to my car at 2:30 am in a cross walk. I was at the median looked both ways didn't see anything so I started to cross. Out of nowhere headlights froze me as a squad car came roaring at me. He slowed down went around me and put on his lights. He stopped me and asked where I was coming from and going and started to question my answers. He started asking me if I had a drug of choice telling me his was beer and vodka. I said I would like to call an attorney and opened my flip phone and he yelled for me to put it in my pocket or he would arrest me. I said if I wasn't under arrest then I'd like to continue my walk. He would not let me do that either. He took my id called it in and all that jazz. I finally said if I wasn't under arrest, I was leaving and he grabbed my arm and arrested me. The charge was blocking a highway or roadway. My main question is did I have the right to use my phone and did he have the right to stop and harass me?
2 ANSWERS
Federal Criminal Law Attorney serving Fresno, CA
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Mark A. Broughton, PC
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This is a complicated area of the law and like all of these situations, it depends on the facts. Officers can contact you in "consensual encounters," but you do not have to allow the encounter to continue if you are not "detained" or under arrest. You always have the right to remain silent. The officer does not have the right to detain you unless he has some reasonable suspicion that you are involved in some criminal activity. He cannot arrest you without "probable cause," which is a little higher standard than that required for a detention. Without knowing more about the situation I cannot advise you specifically, but if you were not being detained for some criminal activity I see no reason why you could not use your phone prior to arrest. If I were you I would fight that bogus ticket, and you might also want to file a formal complaint with the arresting agency, as well as the officer who arrested you. If citizens do not do this there is nothing to stop law enforcement from continuing their heavy-handed tactics in the street - except for judges who by an large will not do so. Bear in mind that the department will be very adamant in trying to get you not to do this because they have to investigate it and a report will go into the officer's file.
Answered on Aug 16th, 2013 at 7:39 PM
Michael J. Breczinski
You did not have a right to use your phone but he sounds like he was out of bounds. Get a lawyer and fight the matter.
Answered on Aug 16th, 2013 at 3:06 PM