Criminally Yours: Your 'One' Phone Call

There are a lot of myths about criminal law, and the idea of the "one" phone call remains a standard one.

Recently a lawyer asked me at a party, “If I’m arrested will police take my cell phone, and if they do, how will I be able to make my one phone call?”

People who might not have participated in civic demonstrations since the heady 60s are getting back into the action after the grand jury failures to indict in the Michael Brown and Eric Garner cases and wondering how the arrest process works.

There are a lot of myths about criminal law. For example, if a cop doesn’t read me my “Miranda Rights” the case gets thrown out, right? (No.) Or, a paid lawyer must be better than a public defender. (Not necessarily.) The idea of the “one” phone call remains a standard myth.

How do I make a phone call? Who do I call? Will the police be listening?

A lot of police work is not as routinized as you think. If you happen to get a nice arresting officer (AO), and you happen to be nice to him, he’ll let you make a phone call, and perhaps even more than one. If your AO is tired, cranky, and hates his job, you might be begging a fellow detainee to make that call for you. (But, then of course, he would have used up his one phone call on you.)

So how do you make a phone call if police have seized your phone (either for “safe keeping” or as evidence) and all your crucial numbers are buried deep inside.

Tip one, memorize the phone numbers of the one or two people crucial to call if in trouble. It will be that person’s job to get you a lawyer (and this is where, yes, having a private lawyer could speed things up), or to at least get in touch with the right people who need to be alerted.

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Getting arrested can be a long and frustrating process, kind of like trying to get treated in a big city hospital with a waiting room full of people, except worse.

Tip two, watch what you say. If they’ve taken your phone, you’ll be allowed to use a phone in the precinct, but beware they are listening and actually notating the number you’re calling and the person’s name. If later down the road, as part of your defense, you’re trying to convince a jury you never met Sheila before, and Sheila’s the person to whom you made that one phone call when arrested, guess who’s getting convicted.

Tip three, if police ask for your phone code to get into your telephone, say no. Even if you’ve done nothing, or think you’ve done nothing, cops and prosecutors are using cellphones more and more to look for incriminating information. This includes texts, photos, downloads, and contacts. Even if you don’t think you’ve got any incriminating, it’s amazing how when someone’s looking for something bad, they can find it. (Even if it’s just a confirmation of your whereabouts at the time of the crime.)

Make them get a search warrant. Nowadays in New York that’s, unfortunately, none too hard to obtain.


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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.