New York Law Review

Tag: non-custodial interrogation

  • People v. Davis, 67 N.Y.2d 514 (1986): Waiver of Counsel After Non-Custodial Request

    People v. Davis, 67 N.Y.2d 514 (1986)

    An individual who requests counsel during a non-custodial interrogation can later waive that right, even outside the presence of counsel, provided the waiver is knowing, intelligent, and voluntary.

    Summary

    Brenda Davis was convicted of felony murder. Prior to her guilty plea, she moved to suppress statements made to police, arguing that they were obtained in violation of her right to counsel. She initially requested counsel during a non-custodial interview, but later waived her rights during a custodial interrogation the following day. The County Court suppressed the first statement, but admitted the second. The Appellate Division reversed, suppressing the second statement as well. The New York Court of Appeals reversed, holding that a suspect who requested counsel while not in custody may later waive that right before formal proceedings begin, and remitted the case to the Appellate Division to determine the validity of the waiver.

    Facts

    Brenda Davis lived on a farm with her daughter, James Davis, and Jessie White. Elizabeth Schlitt, James Davis’s girlfriend, died on the farm. Initially, Davis and the codefendant claimed Schlitt died from a fall in the barn. An autopsy revealed she died from multiple injuries, including sexual assault. During a non-custodial interview at the farm, after being read her Miranda rights, Davis requested a lawyer after being confronted with James Davis’s confession. The deputies ceased questioning at that time but told her they would return the next day. The next day, deputies found a note from Davis and met her at her sister’s house, asking her to come to the Sheriff’s office for questioning. She voluntarily accompanied them. She was given Miranda warnings, waived her rights, and gave incriminating statements.

    Procedural History

    The County Court suppressed statements Davis made after requesting counsel on August 25 but denied suppression of those made on August 26, finding a valid waiver. The Appellate Division reversed, suppressing the August 26 statements. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether a suspect who has requested counsel during a non-custodial interrogation may subsequently waive that right, without counsel present, during a later custodial interrogation?

    Holding

    Yes, because the protections afforded to suspects who request counsel are different in custodial versus non-custodial settings. The coercive atmosphere of custodial interrogation necessitates stricter protections.

    Court’s Reasoning

    The Court of Appeals acknowledged the robust right to counsel in New York, extending beyond the federal constitutional right. It identified two scenarios where the right to counsel attaches indelibly, requiring counsel’s presence for a valid waiver: (1) after formal proceedings commence, and (2) when a suspect in custody has retained or requested an attorney. However, this case did not fall within either of these rules. The court distinguished People v. Cunningham, noting that Davis was not in custody when she initially requested counsel. The court reasoned that during a non-custodial interview, the coercive power of the state is limited because the suspect can refuse to answer questions or leave. The court stated: “In a noncustodial interview, however, a witness or suspect is not constrained by police influence and does not suffer ‘the disadvantage’ of being ‘directly confronted with the awesome law enforcement machinery possessed by the State.’” The court emphasized that the ultimate question is whether the People met their burden of proving a knowing, intelligent, and voluntary waiver. Factors relevant to this determination include whether the defendant was fully advised of their rights, whether the defendant initiated further communication with police, and whether there was a break in interrogation providing a reasonable opportunity to contact an attorney. The court remitted the case to the Appellate Division to consider the unreviewed factual question of whether Davis’s waiver was indeed knowing, intelligent, and voluntary. The Court noted that it is always desirable to remind the defendant of the earlier request and obtain an express withdrawal.

  • People v. Johnson, 55 N.Y.2d 931 (1982): Invoking Right to Counsel Requires Unequivocal Assertion

    People v. Johnson, 55 N.Y.2d 931 (1982)

    A suspect’s statement to police that they might consult with an attorney is insufficient to invoke the right to counsel; the suspect must unequivocally inform the police of their intention to retain counsel.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order and reinstated the trial court’s judgment convicting the defendant of sexual abuse. The court held that the defendant’s statement to police that he was going to see an attorney was insufficient to invoke his right to counsel. Because the defendant was not in custody, nor had he unequivocally informed the police of his intention to retain counsel, his subsequent statements were admissible in evidence.

    Facts

    The defendant, a 19-year-old school bus driver, was accused of sexually abusing a 10-year-old handicapped girl on his bus on September 27, 1977. The police learned of the incident the next day and contacted the defendant through his employer, who was also his uncle, asking him to come to the police station. The defendant initially denied the allegations. Later, inconsistencies arose, and the police contacted the defendant’s uncle again on October 4 to request further questioning. The defendant then admitted inaccuracies but still denied touching the victim and agreed to take a polygraph examination. On October 10, a detective notified the defendant that the polygraph was scheduled for October 13. The defendant stated that he was going to Manhattan to see his mother and then an attorney, but did not provide details about meeting the attorney.

    Procedural History

    The defendant was convicted of sexual abuse in the first degree at trial. He moved to suppress his statements, arguing Fifth Amendment violations. The trial court denied the motion. The Appellate Division reversed, holding that the defendant’s right to counsel had been violated, citing People v. Woodard and People v. Skinner. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendant’s statement that he was going to meet with an attorney was sufficient to invoke his right to counsel, thereby rendering his subsequent statements inadmissible.

    Holding

    No, because under the circumstances, it was not enough to invoke his right to counsel under the circumstances that he suggested to the police that he might consult a lawyer. His statements were admissible unless he had retained counsel on the matter under investigation to the knowledge of the police or had unequivocally informed the police of his intention to do so.

    Court’s Reasoning

    The court distinguished this case from People v. Woodard, where the defendant made a clear and categorical request for counsel during custodial interrogation, and People v. Skinner, where the police were aware that the defendant had retained counsel. The court emphasized that the defendant was not subject to custodial interrogation, nor had his right to counsel attached at the time he made the statement about seeing an attorney. The Court of Appeals stated the rule that after a suspect in custody requests counsel, any evidence obtained without counsel and without counsel’s consent is inadmissible at trial. Similarly, once formal charges are filed, the right to counsel attaches regardless of whether the defendant requests it. However, in this case, the defendant was free for two weeks, had access to competent adults, and had not unequivocally indicated his intention to retain counsel. The court stated, “It was not enough to invoke his right to counsel under the circumstances that he suggested to the police that he might consult a lawyer.” Therefore, the court concluded that his statements were admissible because he had not retained counsel to the knowledge of the police or unequivocally informed them of his intent to do so. The court reasoned that to trigger the right to counsel, a suspect must clearly and unambiguously assert their desire to have an attorney present during questioning. A mere mention of a possible consultation is insufficient to create this constitutional protection.

  • People v. Cunningham, 49 N.Y.2d 203 (1980): Attachment of Right to Counsel Upon Retention

    People v. Cunningham, 49 N.Y.2d 203 (1980)

    When a suspect, even if not in custody, informs the police that they have retained an attorney and wish to have the attorney present during questioning, the right to counsel attaches, and any statements made in the absence of counsel are inadmissible.

    Summary

    Cunningham, a suspect in a homicide investigation, informed the police that he had retained an attorney and would report for questioning with his attorney. Upon arriving at the precinct without his attorney, he reiterated his desire to have his attorney present. The police, after informing him of his Miranda rights, proceeded to question him, eliciting inculpatory statements. The New York Court of Appeals held that Cunningham’s statements should have been suppressed because his right to counsel had attached when he informed the police he had retained an attorney and wished the attorney to be present, and this right could not be waived outside the presence of his counsel.

    Facts

    Police were investigating a homicide. Cunningham, a suspect, contacted the local precinct and said he would report for questioning accompanied by his attorney. Upon arrival, Cunningham inquired about his attorney’s presence and was informed the attorney had not yet arrived. Cunningham met with the officer in charge, informing him he was awaiting his attorney and providing the attorney’s business card. Despite this, the officer advised Cunningham of his Miranda rights and proceeded to question him, resulting in inculpatory statements.

    Procedural History

    Cunningham was convicted of manslaughter in the first degree. Before trial, Cunningham moved to suppress the statements he made at the precinct. The trial court denied the motion. The Appellate Division affirmed the conviction. Cunningham appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendant’s statements to police should have been suppressed because his right to counsel had attached when he informed the police he had retained an attorney and wished the attorney to be present during questioning, even though he was not in custody?

    Holding

    Yes, because the defendant adequately informed the police he had retained an attorney regarding the matter under investigation and wanted the attorney present during questioning; therefore, his right to counsel had attached and could not be waived in the absence of counsel.

    Court’s Reasoning

    The Court of Appeals reasoned that Cunningham’s actions clearly indicated that he had retained an attorney and wished the attorney to be present during questioning. This affirmative act to interpose an attorney between himself and the police triggered his right to counsel. The Court relied on its prior decision in People v. Skinner, 52 N.Y.2d 24, which established that once the right to counsel attaches, it cannot be waived in the absence of counsel. The Court found it immaterial that Cunningham’s attorney had not explicitly directed the police to cease interrogation, distinguishing it from the precise facts of Skinner. The crucial point was that Cunningham had clearly indicated he had an attorney and wanted that attorney present. The Court emphasized the importance of protecting a defendant’s right to counsel once it has been invoked, even outside the context of custodial interrogation. The Court stated, “Defendant’s acts adequately apprised the police that he had retained an attorney with respect to the matter under investigation and that he wished his attorney to be present during questioning… Inasmuch as defendant’s right to counsel had attached, and the right could not be waived in the absence of counsel, defendant’s statements made in response to the police interrogation were improperly obtained and should have been suppressed.” Although Skinner was decided after the trial court’s ruling, the Court applied it retroactively per People v. Pepper, 53 N.Y.2d 213. The Court did, however, uphold the admissibility of a spontaneous statement Cunningham made later while in a holding pen, finding no basis to disturb the lower courts’ finding that it was truly spontaneous.

  • People v. Skinner, 52 N.Y.2d 24 (1980): Right to Counsel Attaches When Attorney is Retained, Even in Non-Custodial Interrogation

    52 N.Y.2d 24 (1980)

    Once a suspect retains counsel on a matter under investigation, the police cannot interrogate that suspect about the same matter in a non-custodial setting if the suspect’s attorney has instructed the police not to question the suspect in their absence; any waiver of the right to counsel must occur in the presence of the attorney.

    Summary

    Skinner was a suspect in a murder investigation and had retained an attorney who instructed the police not to question him outside of his presence. Despite this instruction, police served Skinner with an order to appear in a lineup, and then proceeded to question him about the homicide, obtaining incriminating statements. The New York Court of Appeals held that Skinner’s state constitutional rights were violated. Because Skinner had retained counsel specifically for the matter under investigation and his attorney instructed the police not to question him in the attorney’s absence, the police could not elicit statements from Skinner in a non-custodial setting without violating his right to counsel. This decision emphasizes the importance of the attorney-client relationship and the state’s obligation to respect it.

    Facts

    Diane Snell was murdered in June 1975. Police suspected Skinner, who had been seen with her the night before. Skinner was questioned twice and submitted to polygraph examinations, but did not confess. In the early fall of 1975, Skinner retained attorney Leo Fallon due to the repeated police questioning. Fallon informed the police department that he represented Skinner and instructed them not to question Skinner without him. In March 1977, police served Skinner with an order to show cause regarding a lineup. After serving the order, detectives, knowing Skinner was represented, questioned him about the homicide and obtained incriminating statements. Skinner was then taken to the police station, but refused to make a statement until he spoke with his attorney.

    Procedural History

    Skinner moved to suppress the statements made on March 10, 1977. The hearing court denied the motion, finding the questioning was non-custodial. Skinner was convicted of first-degree manslaughter. The Appellate Division affirmed, holding the statements were admissible because the interrogation was non-custodial and unrelated to service of the order. The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether the police violated Skinner’s New York constitutional right to counsel when they interrogated him in a non-custodial setting about a matter for which he had retained counsel, after his attorney instructed the police not to question him in his absence.

    Holding

    Yes, because Skinner retained counsel specifically on the matter under investigation, and the police knew this, they could not question him on the same matter in a non-custodial setting after his attorney had instructed them not to question him in his absence. Any waiver of this right had to occur in the presence of his attorney.

    Court’s Reasoning

    The Court of Appeals based its decision on the New York State Constitution’s guarantees of the privilege against self-incrimination, the right to counsel, and due process. The court emphasized that the right to counsel includes the right to have an attorney present while considering whether to waive rights. The court stated that “where, as here, a defendant is known to have invoked the right to and obtained the services of counsel on the matter about which the person is questioned, the State may not use statements elicited from that person in the absence of a waiver of counsel made in the presence of the attorney.”

    The court distinguished the case from situations where the non-waiver rule was deemed inapplicable in non-custodial settings. The court cited *People v. Townes* and *People v. Roberson*, cases that suppressed statements made in the absence of counsel even though the defendants were not in custody. Here, Skinner had retained counsel specifically because of the police investigation, indicating he felt unable to deal with the authorities without legal assistance. His attorney had interceded, demanding the police not question him, a demand the police ignored on March 10. The court rejected the argument that absent formal commencement of a criminal action, the defendant could be questioned with impunity after service of an order to show cause simply because he was not in custody.

    The Court also reasoned that allowing the police to question a represented individual in a non-custodial setting renders the right to counsel illusory. The effect of a waiver of counsel is the same regardless of whether the setting is custodial or non-custodial; therefore, the waiver’s validity should be equally scrutinized. The court found the motivations of the police irrelevant, as the impact on the right to counsel remains the same.

    The Court acknowledged the People’s argument that they depend on statements of the “guilty” to further an investigation. However, the Court countered that law enforcement officials must operate within the bounds of our State constitutional guarantees of the privilege against self incrimination and the right to counsel.