One Phone Call

On TV and in the movies, arrestees are entitled to one phone call upon arrest. In real life, the situation is more complicated.

Constitutional considerations. Various courts have considered whether an arrestee has a right to use the phone under the First Amendment (free speech), the Fifth Amendment (due process), and/or the Sixth Amendment (right to counsel). Without exhaustively detailing those opinions, suffice it to say that the existence and scope of any constitutional right is unsettled. Waganfeald v. Gusman, 674 F.3d 475 (5^th Cir. 2012) (noting the lack of “particularized, clearly established law” defining scope of an arrestee’s constitutional entitlement to use the phone).

Statutory considerations. In North Carolina, G.S. 15A-501(5) requires an arresting officer to, “without unnecessary delay[,] advise the person arrested of his right to communicate with counsel and friends and . . . allow him reasonable time and reasonable opportunity to do so.” Exactly what that means in practice is unclear. Must an officer allow an arrestee to look up a phone number in the arrestee’s cell phone? How many attempts must an officer allow an arrestee to make to contact a person? Must an officer allow the arrestee any level of privacy or confidentiality during a call?

We do have one case that provides some information about the time period within which the officer must act. In State v. Daniels, 337 N.C. 243 (1994), the court found no unnecessary delay where an officer did not inform an arrestee of his right to communicate with counsel and friends for approximately an hour after arrest. The court noted that the officer was occupied with arresting the defendant, transporting him to the station, allowing him to use the restroom and smoke a cigarette, and the like.

Agency policy considerations. Some law enforcement agencies have policies implementing G.S. 15A-501(5) that provide additional detail. See, e.g., Greensboro Police Directive 11.1.9 (“Upon reaching the jail or other holding facility for prisoners, the arresting officer or transporting officer will . . . [e]nsure the arrestee has the opportunity to use the telephone.”). I looked briefly at the published policies of Charlotte, Fayetteville, and Durham and did not see anything on point, but someone who is more familiar with those lengthy documents than I am may be aware of a pertinent provision. If so, please let me know.

Remedy for violations. If an officer fails to comply with G.S. 15A-501(5), a defendant may seek to suppress evidence obtained as a result of the violation – such as a confession made after the violation took place – under the statutory exclusionary rule in G.S. 15A-974. The few cases on point to date have found the denial of this right not to be prejudicial. See State v. Chapman, 343 N.C. 495 (1996) (finding that “the defendant was not prejudiced by the failure to advise him of his right to communicate with his friends” and citing State v. Curmon, 295 N.C. 453 (1978) to the same effect).

DWI is different. When a defendant is arrested for an impaired driving offense and is subject to a breath test, different considerations come into play based on case law and the provisions of G.S. 20-16.2(a)(6) (allowing an impaired driving arrestee 30 minutes to contact an attorney and obtain a witness to observe a test). Those considerations are beyond the scope of this post but are discussed in Shea Denning’s bulletin, What’s Knoll Got to Do with It?, available here.

Other states. Many other states have more concrete rules regarding arrestees’ use of the phone. A few minutes on Westlaw turned up the following examples:

• California. Cal. Penal Code 851.5 (arrestee is entitled to make “at least three completed telephone calls” within three hours of arrest)
• Massachusetts. Mass. Gen. Laws 276 §33A (police “shall permit [an arrestee] the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney”; arrestee “shall be informed forthwith upon his arrival at [any] place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter”)
• Nevada. Nev. Rev. Stat. 171.153 (arrestee is entitled to “make a reasonable number of completed telephone calls from the police station or other place at which the person is booked immediately after the person is booked and, except where physically impossible, no later than 3 hours after the arrest”; “[a] reasonable number of calls must include one completed call to a friend or bail agent and one completed call to an attorney”)\
• New Mexico. N.M. Stat. 31-1-5 (“Following arrest, any person accused of a crime is entitled to have reasonable opportunity to make three telephone calls beginning not later than twenty minutes after the time of arrival at a police station, sheriff’s office or other place of detention.”)
• Ohio. Ohio R.C. 2935.20 (an arrestee “shall be permitted forthwith facilities to communicate with an attorney at law of his choice . . . or to communicate with any other person of his choice for the purpose of obtaining counsel,” and “[s]uch communication may be made by a reasonable number of telephone calls or in any other reasonable manner”)
• Rhode Island. R.I. Gen. Laws 12-7-20 (arrestee “shall be afforded, as soon after being detained as practicable, not to exceed one hour from the time of detention, the opportunity to make use of a telephone for the purpose of securing an attorney or arranging for bail”; call may be confidential)

As always, I’m interested in readers’ thoughts and experiences.

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