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Although a defendant's right to have counsel present during custodial interrogation may be waived, the waiver must be knowingly and intelligently made. Although a suspect has previously been informed of his abstract right to counsel and has waived that right, he must be informed when his counsel actually seeks to advise him and must knowingly and intelligently reject such opportunity before subsequent statements may be taken and used against him.
Appellant was taken to the police station at about 6:30 a.m., advised of his rights, and questioned until about 10:00 a.m. Meanwhile his sister retained an attorney to represent him. The attorney arrived at the police station a few minutes before 4:00 p.m. and asked to speak with appellant, but was not allowed to do so. Appellant gave a recorded statement from 3:56 until 4:20 p.m. that was played to the jury. By 4:18 p.m., the attorney had a telephone court order requiring that the police give him access to appellant. After the judge's second call, the police chief ordered that the interrogation cease and the attorney was able to see appellant. Appellant sought review of his convictions for burglary and first-degree murder claiming, inter alia, that the trial court erred in refusing to suppress the statements he gave subsequent to the time his attorney arrived at the station and asked to speak with him.
Did the trial court err in refusing to suppress the statements the appellant gave subsequent to the time his attorney arrived at the station and asked to speak with him?
The court agreed with the appellant’s contention, and reversed the convictions. The court explained that the failure of the police to convey to appellant that the attorney was in the station requesting to speak to him violated appellant's otherwise valid waiver of his right to counsel during custodial interrogation.