Most people are aware that they have the right to an attorney if they are arrested. In fact, this right is one of the rights stated in the Miranda warnings that must be given to anyone who is taken into police custody before any police questioning takes place. Further, if a suspect is represented by an attorney and is questioned by police without the attorney being present, the results of the questioning may be deemed inadmissible as evidence.

New York courts have held that if a police officer wants to question a suspect about something that is not related to the reason for the suspect’s arrest, if the police officer is aware that the suspect is being represented by an attorney for issues pertaining to the arrest, the police officer may not undertake questioning without the attorney.

Even when the police officer is not certain that the suspect is represented, but circumstances indicate that it is likely, the police officer has a duty to find out.

On the other hand, a word that is crucial to this discussion is “questioning.” A police officer may have a conversation, even with someone he knows is represented by an attorney, as long as he does not question the suspect about a criminal case. In this context, questioning does not have be in the form of an actual question – it is any form of speech or action that is reasonably likely to elicit an incriminating response (for example, displaying crime scene photographs). Of course, the meaning of “reasonably likely” in this context is something that may be hotly contested in the course of the trial.

However, if you are a suspect in police custody in New York City, you should remember to be on your guard with respect to any interaction you may have, no matter how seemingly harmless. There are situations when all the rules will not protect you.

For example, New York courts have ruled that when a police officer simply offered a represented suspect some cigarettes and the DNA that was thus obtained was later used as evidence, that the police officer’s offer of the cigarettes was not an action that was reasonably likely to elicit an incriminating response, and did not constitute forbidden questioning.

If you have been arrested as a suspect in a crime, ask to speak to your attorney right away. An experienced criminal defense attorney will be able to advise you extensively on how to interact with others in a way that will not compromise your defense. As can be seen from the examples above, even a seemingly innocuous interaction can come back to torpedo your defense in some very unexpected ways. Call our experienced NYC criminal defense attorneys at  (212) 577-6677 to schedule an immediate consultation.