When the right to counsel kicks in

GARCIA V. HEPP, 2023 WL 3071456 (7th Cir. 2023)

This case helps officers understand the difference between the Fifth Amendment right to counsel and the Sixth Amendment right to counsel. A man (later identified as Nelson Garcia) walked into a bank and handed the teller a note stating he was robbing the bank. The teller turned over $3,500 in cash. Police released video footage of the robbery to the media. Several tipsters identified Garcia as the robber and officers arrested him without a warrant.

Two days later, a detective submitted a “Probable Cause Statement and Judicial Determination” form (a “PC form”) to a county court commissioner to establish a basis for Garcia’s continued detention. The PC form contains two sections, a “Probable Cause Statement” with a statement of facts establishing probable cause for continued detention, and a “Judicial Determination” for a magistrate to determine probable cause and set bail.

County officials use the PC form to satisfy the probable cause requirement for continued detention following a warrantless arrest under Gerstein v. Pugh (420 U.S. 103 (1975)) and County of Riverside v. McLaughlin (500 U.S. 44 (1991)). In practice, the form combines the Riverside probable cause determination with the setting of bail. The form is normally executed in person in a commissioner’s courtroom.

On the PC form, the detective wrote he had “probable cause to believe that Garcia committed” bank robbery and violated his parole. In his required probable cause statement, the detective included a description of the surveillance footage and the multiple tips as the basis for his belief. He took the PC form to the courthouse, where a magistrate judge made the requisite judicial probable cause determination. The magistrate checked a box on the form stating: “I find probable cause to believe that the arrested person committed the offense(s) as listed above,” and set bail for Garcia at $50,000. Garcia was not present for the probable cause determination.

Shortly after the magistrate made the probable cause finding, officers conducted an in-person lineup with two bank tellers. One teller identified Garcia as the robber, stating she was 100% certain of her identification. The second teller did not make any positive identification. No attorney had yet been appointed for Garcia.

Three days after the lineup, a prosecutor filed a criminal complaint in state court charging Garcia with bank robbery. Garcia appeared in court later that day, now represented by an attorney, and was informed of the charges against him. Ten days later, Garcia appeared at a preliminary hearing, where the trial court ordered him detained, pending trial. Garcia asked to represent himself at trial, though the trial court refused to allow it. Garcia was convicted and sentenced to 15 years.

The Wisconsin Court of Appeals affirmed Garcia’s conviction, determining the right to counsel had not been attached at the time of the lineup. Thus, Garcia’s constitutional rights were not violated. Garcia sought relief by filing a writ of habeas corpus in federal court. The relevant question from this case is whether the lineup evidence was admissible based on whether Garcia had a right, under the Sixth Amendment, to have an attorney appointed and present at the time of the lineup. When did Garcia’s Sixth Amendment right to legal counsel arise?

The Sixth Amendment right to counsel is distinct from the Fifth Amendment right. Once a defendant claims their Sixth Amendment right to counsel, officers may not attempt interrogation unless and until the defendant initiates communication with officers and waives rights, or counsel is present (Massiah v. United States, 377 U.S. 201 (1964)). The Sixth Amendment right to counsel begins when the suspect is charged or, in other words, when the “suspect” becomes the “defendant” (Michigan v. Harvey, 494 U.S. 344 (1990)). The Sixth Amendment right continues through the pendency of the case and does not depend on whether the defendant is incarcerated. In contrast, the Fifth Amendment right to counsel under the Miranda rule applies only when the suspect is in custody. The Miranda rule is a Fifth Amendment prophylactic rule designed to protect against compelled self-incrimination. It is not charge- or case-specific, and Miranda rights are always implicated by any custodial interrogation. The Sixth Amendment right to counsel attaches only to the specific offense with which a defendant is formally charged (Rothgery v. Gillespie County, 554 U.S. 191 (2008)).

The federal district court granted Garcia’s petition for habeas corpus relief and the appellate court upheld it in a split decision. Habeas corpus relief can only be granted by meeting a very high standard. The Supreme Court has emphasized many times that Congress has set the bar high for federal habeas relief (Harrington v. Richter, 562 U.S. 86 (2011)). The federal habeas corpus statute states, “Federal courts ‘shall not’ grant relief unless the state court’s decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’”

The federal court of appeals held the state court decision on Garcia’s Sixth Amendment claim was objectively unreasonable, even applying “vast deference” under the federal habeas corpus statute. The court cited the “Supreme Court’s long line of cases on the attachment of the right to counsel.” Once the magistrate judge signed the PC form, Garcia’s Sixth Amendment right to legal counsel was attached: “Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute.” Thus, Garcia was entitled to have his conviction reversed in the state court.

What could the investigator have done differently to obtain the conviction? Perhaps nothing. Or perhaps, he could have consulted with a prosecutor before holding a lineup. The record is not clear; it may be that a prosecutor approved the lineup. The dissenting judge cited the uncertainty of whether the magistrate’s signing the PC statement really amounted to an “initial appearance” on the charge, as Garcia was not then present as he would be in a formal first appearance. If he had been present, there could be no doubt the Sixth Amendment right to counsel was implicated.

This case may simply be one of those “technicalities” so often grumbled about. Understanding the issues in conducting showups and lineups, and recognizing that they often bring evidentiary challenges, ought to prompt investigators to consult with the prosecutor where reasonably practicable before beginning the identification process.

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