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Police Officer arrived at the store after the crime had been committed


A Queens Petit Larceny Lawyer said that, the defendant is charged with one count of petit larceny (Penal Law §155.25) and one count of criminal possession of stolen property in the fifth degree (Penal Law §165.40). The defendant has moved to suppress statements on the ground that they were involuntarily made. This court conducted a Huntley hearing on December 18, 2006. At the hearing, Police Officer testified on behalf of the People. The defendant did not testify nor present any witnesses.

A Queens Criminal Lawyer said that, the Police Officer is employed by the New York City Police Department and has been with the Police Department for five years. During this time period, the officer has made nearly 100 arrests and about half of these has been for petit larcenies. He is assigned to the 112th Precinct. On November 30, 2006, the officer was on patrol, in uniform and with a partner, another Police Officer. The officers were in marked car. At about 8:46 PM, the officer received a radio run for a 10-12 which means that a security guard is holding someone. The officers went to a Home Depot located at 75-09 Woodhaven Boulevard in Queens County. The trip took four minutes. They proceeded to the security office, in the rear of the store and were met by two security guards, one individual, and the defendant. The officer described the office as small and being about 4 feet by 8 feet. The defendant was seated in a swivel chair with his hands down behind him. The two security guards were on the defendant’s left completing their paperwork.

A Queens Shoplifting Lawyer said that, the Police Officer asked the individual what happened and he told the officer that he was walking the floor inside the store and observed the defendant remove an item, a MP3 player, from the shelf, place it in his pants pocket and proceed to walk outside the store. Police Officer then asked the defendant what happened. The defendant shook his head and said “I messed up. I should have paid for it.” The officer explained that he was still investigating to determine if a robbery crime had been committed and to ensure that the defendant had no receipt for the merchandise. The officer did not issue Miranda warnings to the defendant.

A Queens Petit Larceny Lawyer said that, the officers did not draw their weapons. At the time the defendant made his statements, the officer was standing two to three feet away from him and Police Officer was about five feet away from the defendant. Police Officer asked the defendant to stand and the officer then saw that the defendant was rear handcuffed. The handcuffs belonged to the individual. Police Officer then arrested the defendant in that he removed the individuals ‘handcuffs and placed his own handcuffs on the defendant. The individual told the officer that he recovered the MP3 player from the defendant’s pants pocket.

A Queens Grand Larceny Lawyer said that, the defendant contends that the individual placed him in custody when he was handcuffed and that probable cause was established when he conveyed his observations to the officer. The defendant, thus, argues Police Officer’s question to the defendant of “what happened?” was not investigatory, and that his statements should be suppressed because they were the result of custodial interrogation without the benefit of Miranda warnings.

A Queens Shoplifting Lawyer said that, the People maintain the defendant was in custody of the store, rather than in police custody, and that Police Officer’s question was brief and for investigatory purposes. They further note that the officer did not have his weapon drawn, the officer’s tone of voice was conversational and the officer was located several feet away from the defendant.

The issue in this case is whether defendant’s motion to suppress statements on the ground that they were involuntarily made should be granted.

It is undisputed that at the time the criminal defendant made his statements, he had not been given Miranda warnings. Miranda warnings are necessary if the statements were made as a result of custodial interrogation. In order to determine if the defendant was in custody, the test used is whether a reasonable person, innocent of any crime, would have thought had he been in the defendant’s position.

In this case, the defendant was taken from the public area of the store to the security office which was a small room and located in the rear of the store. The defendant was handcuffed and two security guards were seated nearby. They were awaiting the arrival of the police. Under these circumstances, a reasonable person innocent of any crime would believe that he was not free to leave and this court, thus, finds that the defendant was in custody at the time he made his statements.

Interrogation consists of express questioning or questions reasonably likely to elicit incriminating responses. “Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring, where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation.”

In this case, Police Officer received a radio run which he understood to mean that store security personnel was holding an individual. Once at the security office, the details of the radio run were confirmed in that Police Officer found the defendant, seated and with his hands held behind him and two security officers nearby. One of the security officers, the individual advised the officer that the defendant removed an item from the store’s shelves, placed that item into his pants pocket and left the store without paying for such item.

Unlike a situation which is confusing or unfolding, Police Officer arrived at the store after the crime had been committed. The individual expressly implicated the defendant. Although a police officer’s question of “what happened” is often permissible as investigatory to clarify the situation, in this case, Police Officer “transcended the boundary between an attempt to clarify the situation and an attempt to elicit a statement.”

Accordingly, the defendant’s motion to suppress the statements is granted.

If your statements in a criminal case was not made voluntarily, seek the help of a Queens Petit Larceny Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates in order to have your testimony suppressed.

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