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Court Hears Cocaine Possession Case


In this criminal case, the defendant was arrested by a Police Officer at 144th Street in Manhattan and charged with possession of a 9mm firearm. A New York Criminal Lawyer said that while en route to the 32nd Precinct, he initiated a conversation with the Police Officer in which he asked him to let him go and stated that he would help him by bringing in additional guns. They arrived at the precinct at approximately 7:50 p.m. and while the Police Officer elicited pedigree information, the defendant continued to talk about bringing in additional guns. The defendant, who was “kind of fidgety”, talked continuously and was “over-excited”, told the Police officer that he “used” heroin. At 9:05 p.m. A detective read Miranda warnings to the defendant.

The defendant indicated that he understood his rights and wished to answer questions. Thereafter, the Police Officer and the Detective spoke with the defendant intermittently. During this period the defendant also was questioned by homicide detectives from the 32nd Precinct. Thereafter, the defendant gave a detailed oral statement to the detective in whom he explained where and from whom he had purchased the 9mm weapon and said that he had purchased cocaine (cocaine possession) from the same location. At approximately midnight, the defendant made two telephone calls: one to his wife and the other to an unidentified male. He told the man that he had been arrested, that he was “working with some good police officers” and that the man should gather the guns and gave them to the defendant’s wife. The Police Officer told the defendant that he would tell the District Attorney’s Office that the defendant was cooperating. At approximately 2:00 a.m. the defendant’s wife arrived at the precinct and the defendant, in the Police Officer’s presence, instructed her to get the guns. At about 4:00 a.m. she returned to the precinct with a Cobray Mac 11 gun, a .380 caliber pistol and matching ammunition.

The defendant was then transported from the 32nd Precinct to Manhattan Central Booking for arraignment. He complained of being ill and asked to see a doctor. Central Booking, therefore, would not accept him and he was returned to the 32nd Precinct. A Nassau County Criminal Lawyer said the Police Officer filed a felony complaint on the arrest with the Manhattan District Attorney’s Office. The Warrant Officer again transported the defendant to Manhattan Central Booking. At 10:15 a.m. the Warrant Officer received a call from the Police Officer asking that he return the defendant to the 32nd Precinct and the former did so.

At 11:45 a.m. another Detective in the Brooklyn South Homicide Task Force learned from the Police Officer that the defendant, a suspect in the December 20th shooting was being returned to the 32nd Precinct. Defendant was questioned by narcotics detectives from Manhattan South. A Queens Criminal Lawyer said the detective questioned the defendant, asking him about a gun trafficker in Brooklyn. Twenty minutes into their conversation, he told the defendant that he and a Sergeant were from Brooklyn and “that they knew that he had done a shooting in the apartment on Parkside Avenue.” The defendant shook his head “No” and the detective repeated that they knew he had done it and wanted to hear his version of what had happened. The defendant stated: “He tried to f* * * my wife. My wife called me and I went over there.” The detective then showed the defendant the Miranda waiver, signed the previous evening, and “reminded him that he had waived his rights, signed the Miranda form and agreed to make a statement.” The detective then re-administered Miranda warnings and the defendant once again indicated that he understood. During the next hour the defendant made statements concerning the shooting. The defendant, also, told the detective that he was a heroin user.

A Kings Drug Crime Lawyer said that, the defendant was examined by a doctor at a Correctional Facility. The doctor rendered a diagnosis of heroin withdrawal. The defendant reported to the doctor that he used heroin and complained of stomach pain, diarrhea, vomiting and insomnia. The doctor observed that the defendant was sweating, had goose flesh, watery eyes, a congested nose, hyperactive bowel sounds with diffuse tenderness and was depressed.

A Kings Heroin Possession Lawyer said that, the defendant testified credibly at the suppression hearing that he had a history of heroin addiction, that he last used heroin during the afternoon of December 27th and that he had been using heroin, regularly, three times each day. He indicated that upon his arrest he was willing to cooperate “as far as bringing in guns” were concerned and that he waived his rights and made statements to the Police Officer and detective. He testified that “the drug was still in his blood then” and that he did not begin to feel ill until after midnight. He testified that he first felt “anxiety” and later was sweating, his stomach was turning, he felt hot and cold, and had diarrhea. He asked to see a doctor and was told by officers that the Police Officer would arrange for him to be seen by a doctor. He testified that he cooperated at first believing that the Police Officer would let him go back onto the streets where he could get more heroin but that upon being transported to Central Booking for the first time he knew that the police were not going to let him go.

A Kings Criminal Lawyer said that defendant was indicted for the December 20, 1994 shooting in an apartment on Parkside Avenue in Brooklyn. He moves to suppress, as the product of his unlawful detention on an unrelated weapons charge, two guns used in the shooting and delivered to the stationhouse by his wife. He also seeks to suppress admissions made by him on the additional ground that his withdrawal from heroin, together with police conduct during his lengthy detention, coerced his admissions.

The issues in this case are: (1) whether the recovery of two additional guns with ammunition, brought by defendant’s wife to the stationhouse where the defendant was detained, is sufficiently attenuated from the primary illegality and (2) whether the defendant’s statements regarding the shooting, given some twenty-three hours following his arrest, were voluntarily made.

The court having determined that the police acted without “probable cause” or “reasonable suspicion” in grabbing the defendant as he walked upon a public street, placing him up against a car and conducting a search which revealed a 9mm firearm.

The Court said that, the two guns and ammunition brought to the station house by the defendant’s wife are not sufficiently attenuated from the primary illegality and, therefore, must be suppressed. In determining whether secondary incriminating evidence was acquired by means sufficiently independent of the Fourth Amendment violation so as to have been purged of the illegality, courts have considered these factors: the temporal proximity between the arrest and the evidence; the presence of intervening circumstances; and the purpose and flagrancy of the official [168 Misc.2d 86] misconduct.

The United States Supreme Court established the rule that a confession following an illegal arrest need not be suppressed if the police misconduct is sufficiently separable or there are other intervening factors indicating that the confession was not the product of the illegality but of the accused’s own untainted free will. The court stated that the appropriate question in such a case is whether, granting establishment of the primary illegality, the evidence to which objection is made “has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

The Court of Appeals also found attenuation where police improperly stopped a car in which the defendant was a passenger, observed a gun on the floor and arrested all of the car’s occupants. When questioned about a homicide, the defendant denied involvement and gave the name of an alibi witness. The court suppressed the gun but not the defendant’s statement, or a knife used in the homicide and independently recovered, stating: “In addition to the dictates of Miranda and the standard of voluntariness, the controlling consideration for determining the admissibility of ‘verbal’ evidence obtained pursuant to claimed illegal police conduct is whether law enforcement officers acted in good faith and with a fair basis for belief that probable cause existed for an arrest.” The Court found that although the initial stop was improper the police acted in good faith upon observing the gun, and that independent evidence linking the defendant to the homicide served to break the causal chain between the unlawful stop and his interrogation. Also instructive are those cases in which the identity of a witness, who subsequently testifies against a defendant at trial, has been obtained as a result of a Fourth Amendment violation. In these instances courts consider whether the illegally obtained information has been exploited, whether the witness has given the statement or testimony voluntarily, and the temporal proximity between the witness’s statement and the police illegality.

Thus, the Court held that, because the People have failed to establish the existence of any intervening factor which attenuated the defendant’s conduct, in arranging for the guns to be produced, from his unlawful arrest and because the defendant’s wife acted at his behest and instruction in bringing them to the station house the additional guns and ammunition must be suppressed. These weapons and ammunition have no incriminating value against the defendant absent evidence connecting the defendant to them. Because the necessary connection is supplied by the defendant’s own conduct, unattenuated from his unlawful arrest, such conduct and the property recovered as a result thereof constitute fruit of his unlawful arrest.

The Statement to the Detective: Courts have long recognized that a variety of techniques may be used to coerce a confession and that, aside from cases involving physical brutality, a determination of involuntariness may usually best be uncovered by looking at the totality of the circumstances under which the admission came about. While a series of circumstances may each alone be insufficient to cause a confession to be deemed involuntary, collectively such circumstances may have that qualitative or quantitative effect. An involuntary statement includes one which is obtained through means which impair an arrestee’s physical or mental ability to make a choice as to whether or not to make a statement or by means of a promise or statement which creates a substantial risk that an arrestee might falsely incriminate himself. The test of involuntariness is whether “self-direction is lost and compulsion of whatever nature or however infused propels or helps to propel the confession.” Whether a confession has been coerced, therefore, is to be determined from the perspective of the defendant.

Factors to be considered in determining whether a defendant’s statement is voluntary include whether the defendant was subjected to continuous interrogation. Case law repeatedly has emphasized the effect that “slowly mounting fatigue” may be expected to have on a person’s judgment and will. The length of the detention and the delay in arraignment are additional factors to be considered in assessing the voluntariness of a confession.

In this case, prior to admitting his involvement in the apartment shooting, the defendant was unlawfully in police custody for almost twenty-three hours. During this time he was subjected to questioning by various police officers. He was awake for most, if not all, of the night and morning following his arrest. At 5:40 a.m., and again at 9:25 a.m., he was transported to Central Booking for arraignment and each time returned to the precinct without being arraigned. Moreover, it is noteworthy that the defendant was not offered anything of substance to eat until eighteen hours after his arrest. It is undisputed that the defendant was a heroin addict who had last used heroin sometime prior to 7:50 p.m. on December 27th. It is also undisputed that on December 29th at 5:00 p.m. the defendant was diagnosed as suffering opioid withdrawal. Heroin withdrawal symptoms begin to occur within 8 to 12 hours following the last use and subside over a period of five to seven days. Neither intoxication nor heroin withdrawal will render a confession inadmissible unless the state of intoxication or withdrawal has “risen to the decree of mania”. However, the defendant does not allege that he did not understand Miranda warnings or that he failed to appreciate the consequences of a waiver of his constitutional rights. Rather, he contends that his physical condition on the afternoon and evening of December 28th, together with all of the other circumstances of his lengthy detention, were unduly coercive and compelled his admissions to the detective. The credible evidence, including the undisputed medical evidence, supports this contention.

The detective’s initial questioning of the defendant concerning the shooting occurred prior to the second reading of Miranda warnings. When a person in custody has been advised of constitutional rights and voluntarily and intelligently waives those rights, the police are not required to repeat the warnings prior to subsequent questioning if such questioning occurs within a reasonable time thereafter and custody has been continuous. However, here the defendant had been returned from Central Booking twice and, twenty-one hours after the first warning, was being questioned about a totally unrelated crime which the police had reason to believe he committed. Miranda warnings were not re-administered until after the defendant admitted his involvement in this crime. Moreover, before giving the defendant Miranda warnings the detective reminded the defendant that he had previously waived his rights and confronted him with the prior written waiver. Thus, he in effect suggested to the defendant that having once waived his rights he could not decline to do so again.

Accordingly, the Court held that, under these circumstances there is at least a reasonable doubt as to whether the defendant on December 28th voluntarily waived his constitutional rights a second time and freely gave statements to the Detective or whether the waiver and admissions were subtly or otherwise coerced. On this record the People have failed to establish that defendant’s will had not been overborne and his capacity for self determination had not been critically impaired.

If you are involved in a drug crime and the evidence used against you was illegally obtained, seek the assistance of a Kings Drug Crime Attorney and/or Kings Heroin Possession Attorney in order to suppress the evidence against you. Kings Criminal Attorney at Stephen Bilkis and Associates can help you. Call us for free legal advice.

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