Identifications and Right to Counsel

Ron Miller was walking down the street one day when some policemen pulled him over on suspicion of a bank robbery that had occurred a couple hours earlier. Miller was brought down to the stationhouse where he remained for a short period of time. Miller was subsequently told he would be participating in a police line-up in front of some witnesses of the crime, where he objected and said he had an attorney representing him and required his presence.

The officers called the attorney, who arrived within a few minutes, but was refused permission to confer with Miller. They did, however, allow him to observe the line-up. After the line-up, Miller's attorney requested permission to speak to the witnesses in the line-up, but was refused.

At trial, Miller's attorney moved to suppress the evidence. What result?

Answer

(1) Generally, the right to have counsel at a pre-trial confrontation (lineups and showups) only applies after the initiation of formal procedures against the suspect.  Kirby v. Illinois.  The right is triggered when: defendant has been formally charged, given preliminary hearing, indicted, arraigned, or otherwise participates in a formal judiciary proceeding.  It is probably triggered by the issuance of an arrest warrant but not triggered if defendant is arrested without a warrant and then put in the lineup or show-up.  It is not triggered if the defendant is not arrested and consents to appear in the lineup.

See People v. Hawkins, 435 N.E.2d 376 (1982) and U.S. v. Bierey, 588 F.2d 620