Having watched a lot of Law & Order, most individuals believe that upon arrest, they will be provided at least one free phone call but that isn’t exactly true in Pennsylvania.
Upon arrest, there is no immediate right to a phone call in Pennsylvania. Within a reasonable time of being arrested, the Police officer must either release the defendant or bring the defendant before a Magisterial District Judge to be preliminarily arraigned on charges.
What is a reasonable time? Unfortunately, this is has never been strictly defined in PA and has varied on a case by case basis. One day is generally accepted to be the longest acceptable time to be held without being arraigned.
Moreover, the police do have the authority to arrest people and then release them to be charged later by citation or summons. This type of arrest and release is only allowed in public drunkenness and DUI cases, or in cases in which the individual cannot immediately verify their identity.
There is no right to call anyone during that period of time.
If the police do choose to question a defendant, the individual’s Miranda Rights are implicated. The police must advise a defendant of those rights, including the right to counsel. If a defendant invokes his right to counsel (which you should ALWAYS do IMMEDIATELY, regardless of what the police threaten you with or promised to you), questioning must cease, although there are plenty of examples where the police or a different police officer continues asking questions. In our experience, in most instances, the police will simply end questioning upon invocation of counsel and will not give a defendant an opportunity to obtain counsel.
After the police prepare the charges, a defendant will be brought before a Magisterial District Judge for preliminary arraignment. A defendant does not have a right to contact anyone, including counsel, before or at arraignment. Some judges have also made it difficult for lawyers who know that their client has been arrested to appear at preliminary arraignment (we believe that this a violation of the 6th amendment but have never had a chance to litigate it).
However, after preliminary arraignment, a defendant does have a right to contact individuals, including his/her attorney. The Pennsylvania Rules of Criminal Procedure, Rule 540 states:
(H) After the preliminary arraignment, if the defendant is detained, the defendant shall be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she shall be committed to jail as provided by law.
There is no case law interpreting this provision.
At this point, depending on the county, the defendant may be held in custody by the police, the sheriff or a constable. In our experience, the magisterial district judge will normally allow for multiple phone calls.
But, what if my attorney’s phone number is in my wallet or on my phone? Generally, a Judge will allow a defendant to review his/her cell phone or wallet for any phone numbers. We have also seen cases in which the Judge will allow a defendant to use a phone book or will direct court staff to do an internet search to get a phone number. We’ve also seen judges put a defendant in a room with a phone and tell them that they have 15 minutes to call whoever they want.
The only time that we have seen a defendant not be allowed to check their cell phone is if the phone may constitute or contain evidence of a crime. For example, drug dealers often exchange text messages about drug deals. A court would not give a defendant the chance to delete text messages.
So, while there is no obligation to allow a defendant to have access to a wallet or cell phone, the arraigning court does regularly allow it. Even if a defendant is not given that access, they can certainly use a phone book to look up their attorney’s number, or they can call a family member or have a family member call their attorney.
If you or someone you know has been charged with a crime, contact Prince Law Offices, P.C. today to discuss YOUR rights and legal options.