Category Archives: Suppression

DNA collection from cigarette held not to violate indelible right to counsel

Ever since DNA testing became prominent, police have tried all sorts of ways to collect DNA samples from suspects when there was insufficient evidence to get a court order.  One of the classic "tricks" is to offer a cigarette to a suspect and collect DNA from the saliva on the butt.

In People v. Gibson (Ct. App. 6/14/2011) (7-0), the police did just that.  The circumstances of the collection, however, raised an "indelible right to counsel" question.  The Defendant was suspected of a robbery.  He was arrested on a bench warrant in an unrelated matter in which he had counsel.  While locked up, the Defendant asked if he could see the detective, whom he was friendly with.  The detective then had a conversation with the Defendant about general matters.  Neither the robbery nor the unrelated criminal matter were discussed.  During the conversation, the two smoked cigarettes.  The detective later brought the cigarette butt to the lab for testing.  

A unanimous Court of Appeals held:

[T]he detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response. The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind."


Unilateral triggering of indelible right to counsel? COA says no.

Last month, the Court of Appeals decided an interesting case on the indelible right to counsel, People v. Pacquette (Ct. App. 6/7/2011) (Read, J.) (5-2).  The Defendant was suspected of a homicide in Brooklyn and he made inculpatory statements on that crime that he sought to have suppressed.  The statements were made after the Defendant had been arraigned in Manhattan on drug charges.  Brooklyn detectives had already put the Defendant in a lineup in Brooklyn and were sitting with him in Manhattan Criminal Court.  The Defendant was ROR'd and was then arrested by the Brooklyn detectives.  He then made the incriminating statements.

The question boiled down to whether the Defendant's attorney on the drug charge sufficiently communicated his involvement in the Brooklyn case such that the indelible right to counsel would have attached.  The court looked at the conflicting testimony of the various participants, including the attorney and the detectives, and concluded that he had not.  Specifically, the Defendant argued that his attorney's "neglect to 'specify' to the detectives whether he represented defendant in 'the drug case or the homicide case or both,' created an ambiguity causing the indelible right to counsel to attach."  He argued that it at least warranted sending the case back for a further hearing. 

The Court of Appeals disagreed, holding, "We have never held that an attorney may unilaterally create an attorney-client relationship in a criminal proceeding in this fashion, and decline to do so now. … If he had said in open court that defendant 'was represented by counsel and that [the police] should not question him,' the prosecutor (or the judge) would have had the occasion and the opportunity to ask him flat out whether he was defendant's lawyer in the murder case, as the judge and the prosecutor later did at the Huntley hearing and the trial, respectively. Moreover, there is no ambiguity here, as there was in Ramos, about whether defendant may have intended to invoke his right to counsel before making the inculpatory statements." 

The facts of the case are a bit convoluted, but the decision is worth a read if you have a right to counsel issue in a case.  (LC)

Identification held not to be unduly suggestive

The Court of Appeals, in Peopdle v. Gilford (Ct. App. 5/3/2011) (7-0), held that evidence in the record supported that an identification of a defendant under police spotlights, exiting a police car wearing handcuffs and subject to visible flanking in front of the witnesses, was not unduly suggestive.

One victim suffered a mortal stab would in his chest at an indoor roller skating rink called “Skate Key” in the Bronx; another suffered a nearly fatal stab wound. Immediately after the stabbing, a female witness who was helping one of the victims, identified the Defendant as the attacker, to a police sergeant assigned to the area outside of Skate Key. The witness and sergeant pursued the fleeing Defendant and were later joined by two uniformed police officers.  The defendant was apprehended.  An officer took the Defendant to the hospital with the hopes of doing a showup with the first victim.  However, the officer was told that the victim was being attended to by physicians and could not do a showup. 

Nevertheless, the officer stopped two individuals who appeared distraught.  They indicated that they were at the hospital because they were friends with the first victim.  The officer asked “if they knew anything about what had happened at Skate Key and they said that they did.” The officer did not know that the female witness had already identified the Defendant to the sergeant as the attacker. The witness and companion identified the attacker under a bright light while the Defendant was in handcuffs. This took place no more than 45 minutes after the crime.

The trial judge denied the defendant’s motion to suppress the identification evidence because exigent circumstances, specifically, Jones’s imminent death, existed; further, the showup was not unduly suggestive, even though the defendant was “spotlighted by takedown” lights, taken from a police car wearing handcuffs and “flanked by police officers in plain view.” Additionally, defense counsel unsuccessfully argued that the showup was impermissibly duplicative because the officers had to have known that a showup was unnecessary to establish probable cause since the defendant was already under arrest. The judge responded that the chain of events was “unbroken,” “related in temporal and geographic proximity” and was necessary in light of the circumstances.

The Appellate Division found no basis for suppression and the Court of Appeals affirmed; the Court explained that the suppression inquiry is whether the showup was reasonable under the circumstances and then if it was unduly suggestive.  As both are mixed questions of law and fact, and the trial court and Appellate Division's findings were supported by evidence in the record, further review by the Court of Appeals was not possible. (RB/LC)

Gravity knives and testilying

I have previous written and blogged about testilying—the phenomenon of some police officers committing perjury to further their cases.  The police who commit testilying view it as a small indiscretion serving a greater good, the conviction of a criminal.  Testilying often comes about in the Fourth Amendment/suppression hearing context, where the police officer need only mouth certain "magic words" that establish probable cause, reasonable suspicion, or some other lesser standard.

In People v. Brannon (Ct. App. 5/5/2011) (Pigott, J.) (6-1), the issue was whether, in two companion cases, the police officers established sufficient reasonable suspicion that the defendants had gravity knives.  The Court of Appeals held that reasonable suspicion in the gravity knife context requires specific facts that led the police officer to believe that the object was a gravity knife and not some other type of knife.  But, ordinarily, a person cannot tell if an object is a gravity knife unless it is opened.  The court responded:

Reasonable suspicion, however, does not require absolute certainty that the knife the individual is carrying is a gravity knife. Rather, the issue is whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.

Using this standard, the court was able to distinguish the two cases.  In Brannon, while the officer saw the "hinged top of a closed knife" and saw the "outline" of a knife in his pocket, he was unable to testify that it was a pocket knife.  However, in Fernandez, the officer's testimony was that he saw the "head" of a knife and "based on his experience that gravity knives are commonly carried in a person's pocket, attached with a clip, with the 'head' protruding."

Judge Jones dissented from Fernandez but concurred in Brannon.  He noted a key problem with the court's articulated standard:

In my view, had the officer in Brannon merely testified that he believed a gravity knife, and not a pocketknife, was present, then the outcome in that case would have been different. Instead of requiring the police and the People to articulate a specific factual basis for reasonable suspicion justifying these stops, in these types of cases, prosecutors will now be encouraged to present police officers who can describe their training and experience with gravity knives, and testify that a gravity knife, and not a "typical pocket knife", was observed. Given the highly intrusive nature of these stops, the acceptance of these conclusory statements at Mapp/Dunaway hearings as a minimal basis for the admission of evidence poses a significant danger.


Automobile except extends to exterior of vehicle

In a novel case, the First Department held that the automobile exception, which permits a warrantless search of a vehicle based on probable cause, extends to the exterior of the vehicle.  In People v. Howard (1st Dept. 2/1/2011), the police witnessed a suspected drug deal.  The Defendant, the driver of the vehicle, reached under the car and handed a small object to a buyer in exchange for cash.  The police stopped the vehicle and found drugs attached to the bottom of the car by magnets.  The court held, "We see no logical reason to give a closed container attached to the outside of a car any greater protection, especially where it is located in an area directly associated with the observed activity giving rise to probable cause."

The court nevertheless reversed because the trial court improperly rejected a challenge for cause to a juror.  (LC)