State v. Potter: If you already have an Oregon criminal defense attorney on one case and the police come to talk to you about another case, we recommend our clients assert your right to counsel and do not talk to them unless your attorney tells you to talk to them. We warn our clients, if you do talk about the new case that is not connected to your original case, your right to counsel will not apply and your statements can not be excluded from evidence on the basis that you were denied your right to counsel.
If you are in custody, pending charges, and are represented by an attorney on one case, the police may try to talk to you about other cases without your lawyer present. Unless those cases are similar and connected to your current charges, the right to counsel may not protect you.
The Oregon Court of Appeals decided in State v. Potter (2011), that when police questioned a man in custody on Identity Theft charges about related Identity Theft charges, the questioning was an interrogation and violated Mr. Potter’s right to counsel under Article 1, Section 11 of the Oregon Constitution. Mr. Potter was involved with a group of people cashing fraudulent checks. He was arrested by one detective and jailed. He was appointed a Portland criminal defense attorney who was representing him on those charges. While he was in jail, a second detective began investigating Mr. Potter for some other fraudulent check cashing and talked to the first detective as well as Potter’s wife before seizing Potter’s computer hard-drive and finally interrogating Potter himself. The question the Court addressed was whether the two cases were related enough that the right to counsel on the first case protected Mr. Potter from interrogation in the second case.
The Court indicated that the proper inquiry was not whether the cases were “inextricably intertwined” but rather whether the cases were “factually unrelated.” If they were unrelated, then the questioning by the detective was constitutionally allowed. By means of example the Court described a case where the defendant was arrested for Oregon DUII and driving a stolen car. When officers questioned the defendant about the burglary from which the car was stolen and other burglaries, that was factually related to the crimes the defendant had already been charged with and so impermissible. In Mr. Potter’s case, the Court found that the crimes were “remarkably similar.” The two detectives working collaboratively in the same geographical area were investigating overlapping evidence (Mr. Potter’s computer) and the crimes were committed close in time and place. All of those factors together meant the two crimes were factually related. Because of that, Mr. Potter was entitled to “the benefit of an attorney’s presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant.” The detective should have called Mr. Potter’s Portland Criminal Defense Lawyer and requested permission to interview Mr. Potter.
By James F. O’Rourke Jr.
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