By: Dee Wampler

    Police interrogators were questioning a man about a crime regarding the suspicious disappearance of his estranged wife and her boyfriend. The suspect agreed to come to the station to the interview, had the opportunity to travel on his own but accepted an offer from a deputy to get a ride to the Sheriff’s Office.

    He denied involvement but after several hours confessed that he fatally shot his wife and her boyfriend and had buried their bodies. He was advised of his Miranda Warnings, continued to speak to the police and eventually directed them to the bodies. While being questioned, and before he confessed, an attorney retained by his parents arrived at the Sheriff’s Office. The attorney informed the police, “I want all questioning to stop. I don’t want any more questioning to go on without my presence.”

    The court reversed the conviction.1 In a leading U.S. Supreme Court case, Moran vs. Burbine2 the U.S. Supreme Court held that a suspect’s waiver of his Fifth Amendment rights wasn’t invalidated just because investigators failed to tell him that his family had hired a lawyer for him but, if the lawyer if physically present and available to provide legal advice, suspects can no longer be deprived of that critical information.

    But in Moran vs. Burbine the defendant was specifically advised of his Miranda Warning rights and waived them. He was present in a room with a telephone and could have called ______.

    Generally, the right of presence of counsel belongs solely to the accused and may not be asserted by “benign third parties.”

    But in the most recent case this particular (Florida) court has held that the better practice would be to advise the defendant that a lawyer is present and wishes to speak with his client particularly in view of the fact that in the case under consideration the defendant had voluntarily appeared at the police headquarters and was not in custody or under arrest.

1   State vs. McAdams, 99 Crim. Law 105 (FL 2016); Haliborton vs. State, 514 S2d 1088 (FL 1987).
2   475 U.S. 412 (1986)