If we walk into an LE "trap", when can we legally use this right? With the understading that we can really call our attorney 24/7 and
they answer and talk to the LE.
Iggy_d
and recognizing that anything you say can and will be used against you in a court of law. I don't think it gives you the right to compel the pigs to talk to your lawyer while you're in the process of being arrested. Even if it did, I don't think there's much your lawyer can do at that moment that will help you and that cannot be done later.
You never have to give LE more than your name rank and serial number. Tell them, in a pleasant way, you'd like to call your attorney.
You must avoid being a pain in the rear because by being decent, you may, may not will, sometimes get a break. You don't deserve a break if you're a pain in the rear.
LE is your first opportunity to cut your losses. Be nice. They understand we're all weak.
R
The previous posts are not correct, even though many people (even attorneys) would believe that they are.
The fact is that you technically do *not* have the right to remain silent until you are in custody, at least not in the Miranda sense. Of course, you are within your rights not to talk. But if you haven't been placed in custody yet your silence can be used against you in court if an innocent person would be expected to protest under the circumstances.
So, the question becomes at what point are you in custody. It is not necessarily the point where the police tell you you are under arrest, or the point where they read you your rights (of course, this question is moot anyway if they actually do read you your rights). I am simplifying here in the interests of space and clarity, but you are in custody once it would be clear to a reasonable person in your position that you are not free to terminate the conversation and leave. Until then, the discussion is not custodial and your silence -- or anything you say -- can be used against you in court later.
If in doubt, just try to politely end the discussion and leave. If the police don't let you, then you are in custody and your Miranda rights apply. Anything you say (or don't say) between that time and the time the officers read you your rights should be inadmissible against you.
At this point, could you call your attorney and let them talk to the officers instead of you?
Iggy_d
Not exactly. You can assert your right to remain silent and can insist on contacting an attorney and the police will have to stop questioning you, but they will continue to investigate and may book you before you get a chance to call a lawyer.
You would be able to consult with a lawyer in private, but the police will not question him/her in your place. After all, the lawyer didn't see anything personally and can't offer useful answers. Instead, they will question you in the lawyer's presence and he/she will be able to run interference for you by telling you what questions you should or shouldn't answer.
The police might try to persuade you that calling a lawyer will only make things more difficult for you and that your best chance to clear things up and get released is to cooperate. Don't fall for this. The fact that they have you in custody means that they think you are guilty of a crime, so they are not on your side and are not trying to help you. A lawyer will be on your side, and you will need such professional help to deal with the professional questioning by the police.