People v. Cohen, 90 N.Y.2d 632 (1997)

When police question a suspect about a crime for which they know the suspect has retained counsel, any confession obtained, even regarding an unrelated crime, is inadmissible if the questioning on the represented crime was not discrete or fairly separable from the questioning on the unrepresented crime and was purposely exploited to elicit statements on the unrelated matter.

Summary

Cohen was a suspect in a garage burglary. He had retained counsel regarding the burglary. Later, Cohen was arrested and interrogated about a robbery-murder at a Citgo station. Police knew Cohen was represented on the burglary charge but questioned him about it anyway, intermingling questions about the burglary with questions about the robbery-murder. Cohen confessed to the robbery-murder. The New York Court of Appeals held that Cohen’s confession should have been suppressed because the police violated his right to counsel by questioning him about the burglary after he had retained counsel for that charge, and they exploited that violation to obtain the confession to the robbery-murder.

Facts

A Citgo station mini-mart was robbed, and the store clerk was murdered. Police recovered a bullet from the scene, determined to be from a .22 caliber older model gun. An informant, Mackrodt, told police that Cohen, along with codefendants McCulloch and Anderson, had shown him an older .22 caliber revolver, a .357 caliber revolver, and a third unidentified gun at McCulloch’s residence. Mackrodt further stated that Cohen, McCulloch, and Anderson had admitted to stealing these guns from Thompson’s Garage and were planning to rob the Citgo station.

Procedural History

Cohen was indicted for intentional and felony murder and robbery. He moved to suppress physical evidence and his confession, arguing the search warrant was invalid due to the informant’s arrest and that his confession violated his right to counsel. The County Court denied the motion. Cohen pleaded guilty to second-degree murder. The Appellate Division affirmed, holding that the informant’s arrest did not invalidate the warrant and that the two crimes were unrelated. The New York Court of Appeals reversed the Appellate Division’s order.

Issue(s)

1. Whether the search warrant was invalid based on the subsequent arrest of the informant, Mackrodt, for the Thompson’s Garage crimes.
2. Whether Cohen’s confession should be suppressed because police questioned him about the Thompson’s Garage crimes after he had retained counsel for those crimes.

Holding

1. No, because the record lacks evidence that the investigator knowingly or recklessly disregarded evidence that Mackrodt participated in the Thompson’s Garage burglary and weapons theft when applying for the search warrant.
2. Yes, because the police exploited their questioning regarding the Thompson’s Garage crimes, for which Cohen had retained counsel, to obtain his confession for the Citgo robbery-homicide.

Court’s Reasoning

Regarding the search warrant, the Court of Appeals held that the warrant was valid because there was no evidence that the investigator knew or recklessly disregarded evidence that Mackrodt was involved in the Thompson’s Garage burglary when applying for the warrant. The court emphasized that suppression is designed to deter deliberate falsity by law enforcement, not to impeach their sources.

Regarding the confession, the Court of Appeals distinguished its prior cases involving police interrogation after the right to counsel had attached. The Court stated, “Our case law involving police interrogation of a suspect on the subject of one crime after the right to counsel had indelibly attached by the actual appearance of an attorney representing that suspect in another crime falls into two relevant categories.” First, the Court discussed cases where the two crimes are so closely related that questioning on one inevitably elicits incriminating responses on the other. Second, the Court discussed cases where the police are aware that the defendant is represented by counsel in one of the matters, and the interrogation entails questioning on the represented crime.

The Court found this case fell into the second category. The Court emphasized that the Appellate Division used the wrong legal standard by focusing on whether the questions regarding the Thompson’s Garage crimes were the crucial element in securing Cohen’s confession, stating that the proper inquiry is whether the impermissible questioning was “discrete or fairly separable.” The Court also stated it was critical whether the police purposely “exploited concededly impermissible questioning” to get a confession in the unrepresented matter.

The Court found that the police intentionally interfered with Cohen’s right to counsel, as they acknowledged knowing they had been instructed not to question him about the Thompson’s Garage crimes. Moreover, the questioning was completely interrelated. Therefore, the court concluded that the police exploited the questioning regarding the Thompson’s Garage crimes to add pressure on Cohen to confess to the Citgo robbery-homicide, and the confession should have been suppressed.