dissenting.
I respectfully dissent. The tensions in this case arise from RCr 2.14 which provides in part that any attorney is entitled, at the request of a person in custody, or someone acting in his behalf, to visit the person in custody, balanced against the authority of the police to continue lawful questioning without interruption by public defenders when the person questioned has waived his right to counsel. A number of procedural questions are also raised by the method and manner in which this case comes to this Court.
The Louisville police took West into custody for questioning in regard to a double murder. He was advised of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He chose to waive his rights and speak directly with police. Although the ex*344act facts are somewhat in dispute, the public defender’s office came into contact with members of West’s family, and it was maintained that the family wanted West to have an attorney before further questioning by the police. After police refused to allow the public defenders to interrupt the interrogation or otherwise to visit West, members of the public defender’s office prepared an order and approached a circuit judge as he was standing at the escalator at the top of the third floor of the Hall of Justice. The judge conducted an ex parte hearing on the order which he then signed providing immediate access to West by the public defender’s office. Although the circuit judge signed the order, there is no showing as to whether it was ever “entered” by the circuit clerk. Evidently, the order was presented to police who complied by terminating questioning. Later that afternoon, the Commonwealth’s Attorney’s office learned of the order and asked the circuit court to set it aside because it was in conflict with the principles of Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The circuit judge declined to set aside the order but set a hearing for the next day. At the hearing, the judge stated for the video record that he had jurisdiction to rule on the issue and that RCr 2.14 allows another person to request an attorney to talk to a defendant before further questioning.
RCr 2.14(2) provides in pertinent part that any attorney at law shall be permitted, at the request of the person in custody, or someone acting in his behalf, to visit the person in custody. No further written orders were executed by the circuit judge and West was indicted for murder four days later.
The Commonwealth appealed from the order of February 20, and a panel of the Court of Appeals determined that the order was void because Moran, supra, controlled. Initially, it should be noted that the order issued by the Jefferson Circuit Court directing the police to end the questioning of West was void because the court lacked jurisdiction over the matter. At the time the order was executed, there was no criminal or civil action involving West pending in the circuit court. It was not until February 24, that West was indicted.
A criminal action in circuit court is begun by the filing of an indictment, RCr 6.02, and a civil action is commenced by the filing of a complaint or petition, CR 3. In the absence of either of these events, there was no case or controversy which the circuit court could decide and no valid order which could issue. The order was void and should have been vacated.
It was procedurally improper for the circuit judge to have issued the order because the office of the public defender had not yet been appointed by any court to represent West and there was no reported claim by West of indigence as required by KRS 31.120. Consequently, the public defender had no authority to represent West at the time of the visit.
In addition, the order violates the holding of Moran which determined in part that Miranda rights are personal to the accused and that society, as well as the accused, has an interest in preventing benign third parties from invoking such rights.
The next question we must face is whether despite the absence of jurisdiction of the circuit court and the lack of authority to appoint the office of public defender to represent West, the circuit court order was a final and appealable order. There is no conflict between the duties of the Commonwealth’s Attorney as provided in KRS 15.725 and 22A.020(4) and the responsibilities of the Louisville Director of Law under city ordinance 34.080(A). In any event, if the ordinance were found to be in conflict with KRS 15.725, the statute would control. Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970). An order which prohibits or interferes with the lawful collection of evidence is interlocutory. Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978). KRS 22A.020 provides that the Commonwealth may take an appeal in this type of situation.
RCr 2.14 was adopted as part of the criminal rules in 1962, four years before Miranda was decided, and fourteen years before Moran was rendered.
This Court has stated that on matters of constitutional law, Kentucky will give great consideration to the rulings and analysis of the U.S. Supreme Court as part of its own *345analysis of the meaning of the Kentucky Constitution. Crayton v. Commonwealth, Ky., 846 S.W.2d 684 (1992). Moran also noted that its ruling did not bind the states. “Nothing we say today disables the states from adopting different requirements for the conduct of its employees and officials as a matter of state law.” The plain language of the rule is simple. Any attorney summoned by a person in custody or by someone acting in that person’s behalf shall be permitted to visit the person in custody. There is no time limitation stated in the rule. Originally, the ALI Model rule from which our rule was fashioned, did provide that such representation be made immediately. The purpose of the rule is to permit the person held in custody to obtain legal counsel, and to prevent the police from holding a defendant incommunicado. Clearly that problem was handled by Miranda some four years after the adoption of the Kentucky rule. There is no need to resurrect the references to a practice of “sweating” a suspect which is already denounced by KRS 422.110. RCr 2.14 may well have been intended as a supplement to the “anti-sweating” law, as well as a supplement to KRS 422.110(1). This case does not involve a construction of those statutes or rules.
The facts clearly indicate the only conclusion possible. When first taken to the police station for custody, West was advised of his constitutional rights in accordance with Miranda. He waived those rights and chose to talk to police about the incident. At that point, the police were perfectly free to continue to question the individual. It was only later that the public defender appeared with a court order which required the police to cease further questioning. They did so at once.
The orderly course of events would be totally disrupted if such a situation were allowed to continue in Jefferson Circuit Court or in any other circuit court of the Commonwealth. The police would never know when they were to begin or end questioning and who represented the defendant or the person in custody. The procedural shortcomings of this case highlight the fact that the statutes provide for a hearing on indigence and then the appointment of counsel. None of these events can properly be conducted at the top of an escalator in a busy courthouse. The order prepared by the public defenders did not include any reference to indigence or to the appointment of a defender. There is no evidence of any incompetency on the part of West.
Moran was a Federal case with nearly identical facts to this case in which the U.S. Supreme Court specifically rejected a request to extend Miranda so as to require the police to inform a suspect of the efforts of an attorney to reach him during questioning.
From a historic point of view, RCr 2.14 was adopted as an apparent response to the decision of the U.S. Supreme Court in Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958). The suspect in Crooker was arrested by Los Angeles police and questioned on five separate occasions about the murder. He asked for an attorney during three of those questionings. He was not allowed to use the phone to call a lawyer until he had given a full confession. The 5 to 4 majority of the U.S. Supreme Court refused to adopt a rule which would preclude police questioning until the accused is given an opportunity to call his lawyer. The minority justices would have held that the due process clause dictates that the accused who wants counsel should have one at any time after the moment of arrest. Kentucky joined the Crooker minority in adopting RCr 2.14 in 1962. Four years later, in the Miranda decision, the U.S. Supreme Court expressly overruled Crooker and struck a balance between the competing interests of the individual in custody and the government in those instances where the police subject an individual to custodial questioning. The court recognized the inherently coercive nature of a custodial interrogation and balanced that concept with the matter of confessions as a proper element in law enforcement.
Miranda reaches the result which was sought by RCr 2.14, that is, to allow the accused, or those in custody, to consult with counsel upon their request unless waived. Upon such a request, the duty is squarely upon the police to arrange for such a consultation and to refrain from questioning. The individual’s right to an attorney is fully protected under Miranda, and RCr 2.14 is no *346longer necessary in the context of custodial interrogations. In this case, at 10:18 a.m. on February 20, 1992, West signed a waiver form acknowledging he understood that he had a right to counsel and to have an attorney present during questioning and that he desired to waive those rights. West waived his Fifth Amendment right to counsel and spoke to police before the circuit court order was signed. After the order was signed, West was arrested. He again waived his Fifth Amendment right to counsel and confessed to the crime.
I would affirm the decision of the Court of Appeals.
REYNOLDS and SPAIN, JJ., join in this dissent.