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The Supreme Court of the United States

The defendant moves to suppress physical evidence and his statements. He was charged of crimes of burglary in the second degree, grand larceny in the fourth degree, petit larceny and criminal possession of stolen property in the fifth degree.

A Queens County Criminal lawyer said that in October 2011 a Detective of the 104th Precinct Detective Squad, was assigned to investigate a burglary that took place in Middle Village, Queens. Police Officer, an eight (8) year veteran of the NYPD and also working with the 104th Precinct Detective Squad, was assigned to investigate a burglary that took place a day earlier. They worked together on these criminal cases.

Thereafter, the Detective placed a telephone call to the defendant and speaking in English, asked him to come to the precinct and speak with him. The defendant spoke to him in English. They scheduled an appointment two (2) days later. The detective did not recall telling the defendant why he needed to speak to him. The detective did not tell the defendant that he would be coming in to surrender. The detective had been given the defendant’s name, address and telephone number by the co-defendant, who had been arrested earlier that day.

The defendant insists that the detective told him that he had his friend and to go rather than him come look for him at his place of employment, his job, or his house. The defendant testified that he believed he was going to be arrested because the detective told him he already had his friend Kevin and that he otherwise would go get him at his house or job.

The defendant insists he was escorted up to the detective squad. The detective did not recall how the defendant came upstairs. The defendant met with Det. Murray and Officer Williams in an interview room on the second floor of the precinct. They sat at a table. The room had a window, and two (2) doors. The detective and the Police Officer were in plain clothes. The Officer recalls that his gun was in his waistband and that the butt of his gun was showing. The defendant recalls that both the detective and the officer had the butts of their guns visible from their waistbands. The detective spoke to the defendant in English and the defendant responded in English. It is not clear if the door remained open or closed. The Officer was present for the interview; but left the room at some point.

The Supreme Court of the United States recognized the potential coercive nature of custodial interrogation. This principle was recently illustrated and re-affirmed in later cases which held that “a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Prior to questioning, a criminal suspect must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed’.” These warnings are required only when a suspect is in custody.

If a suspect makes a statement while he or she is in custody, it is incumbent upon the People to show, as a predicate to admissibility on the People’s direct case, that the suspect voluntarily, knowingly and intelligently waived these rights.

The test for determining whether a suspect is in custody remains an objective one. “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave’.”

Turning to the New York standard, it has long been held that: “In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any sex crimes, would have thought had he been in the defendant’s position.”

In determining whether a reasonable person, innocent of any crime would have believed he was in police custody “the factors to be considered include the amount of time the individual spent with police, whether his freedom of action was significantly restricted, the location of the questioning and atmosphere under which he was questioned, his degree of cooperation, whether he was advised of his constitutional rights, and whether the questioning was investigatory or accusatory in nature” as to whether “a reasonable person, in the defendant’s position, innocent of any crime, would have believed he was free to leave the presence of the police.”

In determining whether the defendant was actually in custody, this Court first considers the amount of time the defendant spent with the police. The record reflects that while the defendant arrived at the precinct early, he did not begin speaking with the detective and the Officer until 9:00 a.m. Within minutes of his arrival, the defendant began to recount the specific details about the burglary. After identifying the houses that had been broken into, the defendant wrote out a statement. This was accomplished by 11:00 a.m. By 3:15 p.m. he signed a consent to search form and handed the detective the key to his apartment. This was all accomplished within several hours of the defendant’s arrival at the police station. From the moment the defendant first sat down with police until he was placed under arrest, the time he had spent with the police was less than two (2) hours.

The record shows that upon his arrival, the defendant was not handcuffed or placed in a cell. Indeed, he testified that he left the precinct to buy cigarettes – through he returned when the detective hailed him. He was not escorted to the precinct by a police officer, instead, he arrived on his own. Of note, he was not asked to appear at the precinct until two (2) days after the detective telephoned him. There was no urgency in his appearance. When he arrived at the precinct, and than met with the detective and police officer, he was not advised that he was under arrest. He did not ask if he was under arrest. Under these facts and circumstances, the defendant’s freedom of action was not restricted in any significant way.

The questioning took place at the Precinct Detective Squad, in an interview room. The testimony of the detective and police officer, as well as the defendant, reflect that the atmosphere in the interview room was non-threatening. The defendant immediately told his story. The record reflects that no threats were made. There is no credible evidence that the detective and police officer raised their voices or banged the table or that there was any yelling whatsoever. While the police officer both in plain clothes, were wearing weapons on their waistbands, they were only partially visible and never drawn. Thus, the defendant’s statement was not made in a coercive environment.

It is clear from the testimony adduced at this hearing that the defendant was very cooperative; almost immediately relating his story to the police and minimizing his involvement in the crimes. After signing the consent to search form, the defendant even provided police with keys to his residence.

The record reflects that immediately after identifying the photographs of the houses that had been burglarized, the defendant was fully advised of his Miranda rights. The defendant’s assertions to the contrary are simply not credible.

Based on the lengthy response to the detective’s initial question, this Court concludes that the defendant’s recitation of the events of the burglary, which was detailed and specific, was initially prompted by a single investigative question of the detective, to wit: that the detective wanted to speak to him about the break-ins.

Thus, under the facts and circumstances surrounding this interrogation, the brief amount of time the defendant was with police, the minimal restriction of his freedom, the non-threatening atmosphere – in spite of the fact that the questioning took place at a police station, the cooperative nature of the defendant, and the less than accusatory manner in which the detective posed his initial question, leads this Court to conclude that the circumstances surrounding the interrogation were not so coercive and overbearing to support a finding by this Court that the criminal defendant was in an custodial environment.

Under the facts and circumstances provided herein, it is clear that a reasonable man, in the position of the defendant, innocent of any crime, would not have had reason to believe that he was not free to leave.

The Court has examined the two criminal cases the defendant has offered in support of his claim that he was in custody. The court held that this seizure escalated into an investigatory detention that required reasonable suspicion that the suspect had committed a crime and that a reasonable person in defendant’s position would not have felt free to leave. In another criminal case, the critical difference here is that the detective actually went to the defendant’s house to retrieve him and the court held that under the totality of the circumstances the defendant was in custody at the time he made his inculpatory statements. Here the defendant came to the police station voluntarily by himself after the detective told him that he wanted to speak to him.

The defendant was not in custody at the time he offered his initial oral statements. As such, Miranda warnings were not required prior to the time the detective advised the defendant that he was being placed under arrest.

After the defendant was arrested, he was advised of his warnings. They were read to him in English. All of the credible evidence presented at the suppression hearing indicates that the defendant spoke and understood English. The detective then asked the defendant if he wanted to make a written statement; the defendant agreed and wrote out a statement, in Spanish. While the defendant asserts that he was never advised of his Miranda warnings, and only told to initial the Miranda form, this Court finds the defendant’s assertion incredible, self-serving and unsupported. Based on the all the evidence adduced at this hearing, this Court finds the defendant’s written statement to be admissible as it was made “…following his intelligent, voluntary and knowing waiver of his Miranda rights”. There is nothing in this record to reflect that the defendant’s will was overbourne at any time during questioning so as to render his statements involuntary.

There is a heavy burden on the People to prove the voluntariness of a waiver of constitutional rights and consent to a search for a drug. The question of the voluntariness of a consent to search is a question of fact. “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle”

No one fact or circumstance is determinative of the voluntariness of consent. In a case law, the defendant was provided with a written consent to search form, in Spanish. The form clearly advised him of his right to refuse to consent, in whole or in part. The defendant read and signed the form. He voluntarily offered the detective keys to the front door of his building and his apartment. There is no evidence in the record to suggest that there were any threats by police coercing the defendant into signing the consent form. The defendant signed the consent to search form freely and voluntarily in a knowing and intelligent manner. The People have established that the defendant consented to the search of his premises.

Turning to the Dunaway aspect of this suppression hearing, the defendant’s initial pre-Miranda statements cannot be viewed as the fruit of an unlawful arrest as this Court has held that the defendant was not in custody at this time and the police clearly had probable cause to arrest the defendant after he identified the houses he had helped burglarize, following his initial oral statements to them. As such, the defendant’s statements and consent were not the product of an unlawful arrest.

For the reasons previously enumerated, the defendant’s motion to suppress his statements and physical evidence is denied in all respects.

During an arrest, the arresting officer must inform the rights of an accused; these rights are otherwise known as the Miranda rights. Failure to inform these rights could be fatal in the manner of arrest. Here in Stephen Bilkis and Associates, our Queens County Criminal lawyers will protect you in case there were irregularities in arrests. We will file an action against the arresting officers or make your arrest invalid. For other concerns, we also have Queens County Burglary attorneys who will inform you of your rights as a victim and guide you as to what steps to undertake in order to pursue a criminal case. Call us now for more details.

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