City of Toledo v. Dietz

O’Neill, J.,

dissenting.

This is a classic case of denial of counsel by police authority which could happen to any ordinary *34citizen at any time. The defendant was not a criminal. He was a businessman.

1 dissent from the holding of the majority of the court for the following reasons: (1) Defendant was denied the assistance of counsel guaranteed him by Section 2935.14, Revised Code; (2) defendant was denied the assistance of counsel guaranteed him by the Sixth Amendment to the United States Constitution as made obligatory upon the states through the Fourteenth Amendment; (3) the evidence in question, the results of the drunkometer test, was unlawfully obtained by virtue of the denial of the rights granted by the statute and the Constitution and the motion to suppress such evidence which was timely filed should have been granted.

Section 2935.14, Revised Code, provides in part:

“If the person arrested is unable to offer sufficient bail * * * he shall, prior to being confined * # * be speedily permitted facilities to communicate with an attorney at law of his own choice, or to communicate with at least one relative or other person for the purpose of obtaining counsel. * * *” (Emphasis added.)

The opinion of the majority states at page 33:

“Appellant complains that he asked to be allowed to confer with his lawyer over the telephone but was denied this privilege. That statement is correct. However, the officer did call appellant’s brother. Certainly it may be assumed that the brother would take appropriate steps in behalf of appellant. (Emphasis added.)

“The provisions of Section 2935.14 of the Revised Code were fully respected.”

This interpretation of the statute has effectively deprived one accused of crime (a misdemeanor, the violation of an ordinance) of the right to confer with counsel. Section 2935.14, Revised Code, clearly requires that an individual be allowed to make his own telephone call to the attorney or other person of his choice, prior to his confinement.

Notwithstanding the fact that defendant could have offered, sufficient bail in monetary terms, he could not be released, since the offense with which he was to be charged was not bailable for a four-hour period after arrest. In this sense, he was unable *35to offer ‘‘ sufficient bail ’ ’ within the meaning of the statute, and was entitled to consult with his attorney.

Not only was defendant denied his statutory right, but he was also denied the right to counsel granted him under the Sixth and Fourteenth Amendments to the United States Constitution. Escobedo v. Illinois, 378 U. S. 478; Doughty v. Maxwell, Warden, 376 U. S. 202; Gideon v. Wainwright, Dir., 372 U. S. 335; Carnley v. Cochran, Dir., 369 U. S. 506.

In Escobedo v. Illinois, supra, at page 490, the Supreme Court of the United States said:

“ * * * where * * * the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the states by the Fourteenth Amendment.’ ” (Emphasis added.)

That holding is applicable to the instant case. At the time he was induced to take the test, the process had already turned from investigatory to accusatory. The record shows that defendant twice asked to be allowed to consult with his attorney. He was told that it was not necessary since the drunkometer test was voluntary, and since he did not have to answer any questions. Other than that, his rights were not effectively explained to him.

A police sergeant testified that he had no knowledge of the right of defendant to an attorney, that in his opinion the police could interrogate as long as they wished before charging an accused formally, and that the right to counsel attached only after the accused had been formally charged. Another officer testified that he was aware of the right of defendant to consult with his attorney, but did not permit him to do so. This is a violation of Escobedo, supra.

The action taken by the police was not only in violation of the lights of defendant, but was prejudicial to him since the *36evidence so obtained was material to his conviction. Defendant agreed to take the drunkometer test only after he had been refused the right to call his attorney, not once, but several times, and, after he was promised that when he had taken the test, he could make the call. When he had taken the test, he was immediately locked up and was not permitted to make the call as promised.

To condition the granting of the rights of the accused upon compliance with the demands of the police officers is a coercive method of extracting evidence from him.

The evidence in question was gained illegally as a result of the violation of both statutory and constitutional rights of the defendant. It can not be said that the violations of his rights were waived by the taking of the test, since it was because of those violations that he was induced to take it. Furthermore, the taking of the test may at best be characterized as mere submission to authority since the defendant, who had had no previous experience in this area, was effectively within the power of the officers.

Evidence illegally obtained is inadmissible in a criminal trial, and the motion to suppress should have been granted. Mapp v. Ohio, 367 U. S. 643.

Therefore, the judgment should be reversed.