No Constitutional Right To Counsel Upon Arrest During A Gerstein V. Pugh Initial Appearance/Non-Adversarial Preliminary Hearing

• Jurisdiction: Maryland

IV. No constitutional right to counsel upon arrest during a Gerstein v. Pugh initial appearance/non-adversarial preliminary hearing

Under Gerstein v. Pugh, 420 U.S. 103 (1975), the Fourth Amendment requires a probable cause determination for any Defendant who is arrested without a warrant. This is often called an "initial appearance." An initial appearance is a non-adversarial Fourth Amendment preliminary hearing, which is limited to determining whether the arrest was supported by probable cause.

A. Attachment of the Sixth Amendment right to counsel

For the Sixth Amendment right to counsel to be applicable, two things must happen. First, the Sixth Amendment right to counsel must have "attached." The right attaches when the Defendant has been subjected to judicial adversarial proceedings, either because the Defendant has been formally charged by way of indictment or criminal information, or the Defendant has been subjected to a trial-like confrontation, such as an adversarial preliminary hearing.

Second, even after the Defendant's Sixth Amendment right to counsel attaches, the Defendant is entitled to counsel, at government expense, only when the Defendant is confronted with a "critical stage." A critical stage is a stage in which the lack of counsel, at that time, may denigrate the...