Correct! In Peo. v. Viray, 6DCA, 12/05, the court ruled that a defendant is charged for Sixth Amendment purposes when prosecutors file a criminal complaint with the court clerk. “The Sixth Amendment right to counsel arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him”. Although not in custody, the suspect should have been given a Miranda warning which would have conveyed his right to have an attorney present or consult with an attorney prior to interview. Absent this warning and a waiver of the right to counsel, the statement will be suppressed.

Had the suspect already been arraigned and appointed counsel, an investigator would have to go through counsel and have counsel present in order to conduct an interview (U.S. v. Massiah, U.S., 1964; Michigan v. Jackson, U.S., 1986).

Note: When a person has been indicted by the Grand Jury, the Sixth Amendment right to counsel also triggers (U.S. v. Fellers, U.S., 2004). However, the Sixth Amendment issue can also be cleared through a Miranda admonition and waiver (advising the suspect he has a right to have an attorney present).