A Queens Grand Larceny Lawyer said that, following a hearing, Criminal Term denied the motion to suppress the conversation on the ground that the former police officer was acting in the interest of the bank, that he was not acting in co-operation with the police, and that there was no duty incumbent upon the police to prevent him from talking with the defendant. Thereafter, defendant entered a plea of guilty.
The issue in this case is whether the court erred in convicting defendant of petit larceny, upon his plea of guilty and imposing sentence.
It is axiomatic that the constitutional protections against self-incrimination do not apply to confessions elicited by private individuals. The actions of private individuals, however, do become subject to scrutiny for violations of constitutional limitations when those individuals act as agents of the government or when government officials participate in the act.
Thus, in one case the Court of Appeals affirmed the suppression of a confession and certain physical evidence obtained from a defendant accused of shoplifting where the evidence was obtained by department store security officers who had been aided by the police in taking the defendant into custody and where the defendant had not been advised of his Miranda rights, the store security officers who had observed defendant place a number of leather coats into a plastic bag, apprehended him outside the store and seized the coats. The police arrived as one of the security officers was attempting to handcuff the defendant. When the defendant tried to move away, “one of the police officers placed his hand on the defendant’s shoulder, showed the defendant his badge, identified himself as a police officer and told the defendant to stand there or keep his hands on the wall”. After being handcuffed, defendant was led back inside the store to the security office by both the police and the security officers. Once there, the police remained outside while the security officers questioned defendant. Inside the office, defendant, while handcuffed to a desk, signed a confession and photographs of the stolen goods. In finding that the police conduct was more than minimal or peripheral, the court noted: “The police were not merely anonymous observers. They actively participated in the arrest, one of them clearly identified himself to the defendant and both of them escorted the defendant to the place where he was interrogated while they awaited the outcome of the questioning. Although the store detectives who actually obtained the confession and other items may not have acted as police agents, the participation by the police was sufficient to create the type of custodial atmosphere which the Miranda rule was intended to alleviate”.
The level of police involvement in defendant’s questioning in the case at bar was even greater than that in Jones. Here not only had defendant been apprehended solely by the police, but the challenged questioning occurred while defendant was in the police precinct squad room, handcuffed to a chair and surrounded by detectives. Clearly the defendant’s statement was obtained by an individual acting under the arresting officer’s “direction or in cooperation with him”.
In the instant case, the former police officer was obviously a stranger to defendant and was not present to give counsel to him. Moreover, we do not consider that defendant’s plea to the former police officer to tell the police that he was innocent constituted an implicit waiver of defendant’s right to remain silent. While we recognize that an explicit statement of waiver is not invariably necessary to support a finding that a defendant has waived his right to remain silent, the People, nonetheless, bear a heavy burden of showing that a defendant waived that right and the court is obligated to ” ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights”. Under the circumstances at bar, the assault defendant’s conduct cannot be viewed as constituting an implicit waiver of his right to remain silent. This is not a case where a defendant, after having given no response upon being advised of his right to remain silent and to consult with an attorney, responds to a question which is put to him two to three minutes thereafter.
Accordingly, the court held that the Judgment is reversed, on the law, plea vacated, that branch of defendant’s motion which sought suppression of oral statements granted, those statements are suppressed and the matter is remitted to Criminal Term for further proceedings.