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Court must consider whether the defendant’s freedom of action was significantly restricted.


The defendant moves to suppress physical evidence and his statements. He is charged in two (2) indictments as follows: the defendant is charged with the 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 attorney said that in October 2011 a Detective, of the 104th Precinct Detective Squad, a nineteen (19) year veteran of the NYPD and a detective for almost thirteen (13) years, was assigned to investigate a burglary that took place at Middle Village, Queens. Another 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; at Middle Village, Queens. They worked together on these cases.

In October 2011, the Det. 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 Det. did not recall telling the defendant why he needed to speak to him. The Det. did not tell the defendant that he would be coming in to surrender. The Det. had been given the defendant’s name, address and telephone number by the co-defendant, who had been arrested earlier that day. The Co-defendant had told the detective that the defendant was with him when he committed the burglaries and that he had driven the defendant’s minivan during the burglaries.

The Supreme Court of the United States recognized, the potential coercive nature of custodial interrogation. This principle was recently illustrated and re-affirmed and held that “this Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Prior to questioning, a 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 crime, would have thought had he been in the defendant’s position.”, applying the Yukl test and holding that the issue of whether a suspect is in custody is generally a question of fact.

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 criminal 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 Det. and Officer until 9:00 a.m. Within minutes of his arrival, the defendant began to recount the specific details about the two (2) burglary. After identifying the houses that had been broken into, the defendant wrote out a statement. 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 Court must consider whether the defendant’s freedom of action was significantly restricted. 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 final factor this Court must consider as to whether the defendant was in custody is whether the questioning of the defendant was investigatory or accusatory in nature. Based on the lengthy response to the detective’s initial question, this Court concludes that the defendant’s recitation of the events of the burglaries, 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 defendant was in an custodial environment.

The second part of the analysis this Court must consider in determining if the defendant was in custody is whether the defendant – standing in the shoes of a reasonable man innocent of any crime, would have thought he was not free to leave.

At the outset, this Court notes that the initial contact with the defendant was initiated by telephone call, with an invitation to appear at the precinct two days later. No one accosted the defendant at his work or his home. No law enforcement agent came by to drag him to the precinct. The defendant, upon his arrival at the precinct, was not immediately handcuffed, placed under arrest or placed in a cell, but instead according to the defendant advised at the precinct to take a seat because the detective had not yet arrived.

In fact, according to the criminal defendant the defendant left the precinct to purchase cigarettes – only returning when hailed by the detective who had just arrived which is strong evidence that the defendant felt that he was free to leave at that time. This Court has taken judicial notice of a DA Intake Form’ which related that the detective stated that the defendant was to surrender himself. Despite that notation, this Court determines that there simply is no credible evidence that the detective used these words with the defendant.

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.

This Court has examined the two cases the defendant has offered in support of his claim that he was in custody. Unlike the scenario here, another case involved a street encounter and 24 minute detention of the defendant while conducting common-law inquiry based only on the police officer’s founded suspicion that criminal activity was afoot. 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.

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 Det. Murray advised the defendant that he was being placed under arrest.

After the defendant was arrested, he was advised of his Miranda 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.

The defendant claims that his subsequent written statement should be suppressed because it was made after improper pre-Miranda questioning. The defendant claims there was no attenuation that would purge the taint of this prior unlawful questioning. However, as the defendant’s initial oral statements were not unlawfully obtained, attenuation is not an issue herein.

This Court now turns to the determination of the lawfulness of the recovery of the physical property from the defendant’s house and yard.

“Governmental intrusion into the privacy of the home is, with limited exceptions, prohibited by constitutional limitations in the absence of a valid search warrant… One of the limited exceptions to the warrant requirement, and indeed, to the requirement of probable cause, is voluntary consent to search…”

There is a heavy burden on the People to prove the voluntariness of a waiver of constitutional rights and consent to a search. 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. Here, 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 commit burglary, following his initial oral statements to them.

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

For quality and reliable advice, don’t hesitate to contact our Queens County Criminal attorneys here in Stephen Bilkis and Associates. We will serve you to the best of our ability. For gun crimes, we also have Queens County Gun Crime lawyers, who will protect your rights from being violated.

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