While on motor patrol in August 1977, a Police Officer received a call that shots were fired at premises located at a street in Queens. He proceeded to that location with his partners. Upon arriving and receiving information that someone had been seen on the roof, the Officer received permission from a tenant to go through her apartment to the fire escape which gave access to the roof.
A Queens County Gun Crime attorney said that on his way to the roof, the Officer observed the defendant peering down. As the officer approached, the defendant said, “That is all right, Officer, I am only walking my dog.” He told him to keep his hands in view, and he completed his ascent to the roof. It was dark and the weather was clear and warm.
A Queens County Criminal lawyer said that when the Officer arrived on the roof, he saw the defendant standing there without shirt or shoes. He was attired only in a pair of coveralls. He had a dog with him. When asked if he had heard anything, the defendant told the Officer that he had heard a few shots fired. At that moment his partners arrived, coming through two entrances from separate stairwells, which, they said, had been locked from the inside.
Leaving his brother officers with the defendant, the officer noticed that the door to the elevator motor room was open. He looked inside. The beam of his flashlight illuminated the floor, where he saw a .38 caliber chrome-plated revolver, which was fully loaded. Picking it up by the trigger guard, he walked back to the defendant who was standing with the other officers. He testified how he then proceeded to give the defendant his Miranda advices.
The defendant then told the Officer that he had been in his apartment that evening with his girlfriend, when he heard a knock on the door. The knock was followed by two shots into the door. He was struck by some wood splinters. Afraid, he grabbed his weapon and went through the window to the fire escape. He went up to the roof while his girlfriend descended the fire escape.
Following his inculpatory statement, the defendant was placed under arrest, handcuffed, and taken down the roof stairway to his apartment in the custody of the three policemen. In the meantime, two uniformed police officers also arrived at the apartment. The officers requested access to the apartment for the purpose of getting shoes for the criminal defendant, who was barefooted, so that he could be taken to the police station.
The Officer described how he and his partner obtained access to the apartment while the defendant remained in the custody of the other in the hall, and what they discovered therein.
In addition to the currency, which totaled $753, the search also uncovered a box with a gun manufacturer’s label on it, imprinted with the same serial number and model as that of the revolver recovered on the roof. The box also contained a receipt from a pawnshop in Athens, Georgia, with the serial number of the gun written on it.
Because of a progression of intrusions upon the defendant’s constitutional rights under the Fourth and Fifth Amendments, the judgment of conviction herein should be reversed.
Here, the continuity of the events following the giving of the Miranda advices was: first, the defendant’s statement that he “understood” them; second, and immediately following, the police officer’s admonition, while showing him the gun, that if it were his, he should say so before fingerprints will be taken from it; and third, following such remark, the defendant’s immediate admission that the gun was his, whereupon he was placed under arrest and handcuffed.
When a criminal defendant is in police custody and after the Miranda warnings have been given to him, a heavy burden is cast upon a State to establish not only an understanding of his constitutional rights, but also that his election to waive them was the result of the voluntary exercise of his own mental processes without the use of any outside influences or pressures which may tend to exert any leverage upon his ultimate decision.
Inasmuch as it is a well-settled rule of law “that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights”, it becomes a natural corollary to such rule that courts are required to scrutinize such waivers for any signs of unfairness, and for an assurance that they are not the product of any overwhelming and unbalancing inducements.
The defendant’s inculpatory statement, coming immediately after the Officer’s admonition, was the result of an impermissible intrusion on the criminal defendant’s right to make an unpressured and uninfluenced election whether he should or should not waive his constitutional rights.
The rights therein sought to be protected, involve not only a statement of the defendant’s rights, but, most vital to him, a comprehension of the advices coupled with a reasonable opportunity on his part to consider the consequences of the options offered to him and to make his choice whether or not to waive his rights without any intervening pressure, cajoling or implied threats by his interrogator.
The deficiency was created here by the inappropriate timing of the police officer’s remark in that it was made after the defendant indicated his comprehension of the warnings but before he had made an election to waive. The only inference from such conduct by the interrogator is that the remark was made for the purpose of introducing “a compelling influence” to induce a waiver, which is contrary to the purpose of the Miranda guidelines.
It is not to be suggested that at some point in a police interrogation, under certain circumstances, it would be inappropriate for the interrogating officer to suggest the use of police testing techniques. However, it should be sharply noted that, the defendant had been given the Miranda warnings and had, in fact already waived his rights before the voice stress test was mentioned by the police interrogator.
Notwithstanding that the suggestion to submit the defendant to police detection techniques may be permissible after a waiver of constitutional rights by the defendant, it may not, however, in the very process designed to protect one’s constitutional rights, be used as a device to overbear, pressure and persuade the defendant to relinquish those rights.
Here, however, we are concerned with, not a police technique to evoke a statement after a waiver has been properly effectuated, but, rather, with an intrusion upon the very foundation of the defendant’s constitutional right to make a free choice as to whether or not he should waive in the first instance. This phase of the constitutional process requires an atmosphere geared to the protection of constitutional rights rather than a concern with overcoming such rights. Domestic violence and Burglary were not involvedl
Particularly do the facts militate against a waiver here when no matter how innocuous the police prodding may have appeared, such urging by-passed any expression of waiver and resulted in a statement devoid of surrounding circumstances from which any inference of relinquishment of such constitutional rights could be inferred.
“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecutor’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.”
Hence, it is apparent that the law, at least in this Department, is precisely as our separately concurring colleague would have it, viz., that “where a defendant in custody has been fully informed of his rights and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual circumstances, be held to constitute a valid waiver.” In the case at bar, therefore, the defendant’s roof-top admission was not necessarily excludable solely because it was not preceded by an express waiver of his constitutional rights. That fact notwithstanding, the admission must be suppressed because, under the totality of the circumstances herein, the defendant was not shown to have waived his rights beyond a reasonable doubt. The record here does not spell out a free and voluntary waiver, either express or implied, of the defendant’s constitutional rights.
Judgment of the Supreme Court, Queens County, rendered October 5, 1978, reversed, on the law and the facts, motion to suppress granted and indictment dismissed.
This case is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion, pursuant to CPL 160.50.
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