People Successfully Defend Police Contact Under Level One of DeBour; Court Suppresses Under Higher Level

People v. Hill (Ct. App. 5/2/2019) is an interesting case that highlights an important point about the DeBour four levels of police-citizen interaction.

This case involved a run-of-the-mill “clean halls” stop in NYCHA housing. The defendant was seen repeatedly entering and exiting a public housing building. The police stopped him and asked for his identification, which he provided. An officer took the ID to the apartment that the defendant was supposedly visiting; the occupant did not know the defendant. The defendant was arrested for trespass. During a search incident to lawful arrest, the police found 42 bags of crack cocaine.

The defendant argued that this was a Level 3 intrusion and required reasonable suspicion, which was lacking. The People argued that it was a Level 1 request for information, which required only an objective, credible reason.

The Court of Appeals agreed that, at the inception, the encounter was justified under Level 1 of DeBour. However:

the record demonstrates that the encounter thereafter rose beyond a level-one request for information, which the People failed to justify as lawful. Consequently, the People have failed to preserve any argument that the encounter in this case was justified under levels two or three of DeBour.

If I am reading the Court’s opinion correctly, the People failed to argue in the alternative before the motion court that, even if this was a Level 3 encounter, it was justified by reasonable suspicion. From a preservation point-of-view, both sides should always argue in the alternative in case a court concludes that a different DeBour level applies than the party originally asserts. (LC)

Harmless Error Saves Conviction

In People v. Martin (Ct. App. 3/28/2019), the Court held that even if there was error in allowing the defendant’s statements into evidence under the pedigree exception to Miranda, it was harmless error and would not warrant reversal.

Appellate Review of a Joined Indictment with One Plea

In People v. Holz (4th Dept. 12/21/2018), the Fourth Department refused to review a suppression ruling of the lower court on a count in an indictment that did not have a final judgment, when the defendant had pleaded guilty to a related count in the same indictment.

At the trial level, the defendant was convicted of Burglary 2°. The indictment was for 2 different burglary incidents, on October 1, 2014 and October 3, 2014, and the defendant pleaded guilty to the October 1 incident, satisfying the both counts of the indictment. At the appellate level, the defendant was seeking suppression of jewelry recovered from a police stop that took place on October 3. The defendant did not plead guilty, nor was he convicted of the October 3 burglary.

The Court’s inability to do anything regarding the defendant’s contention is rooted in the limited nature of appellate jurisdiction. The majority cited a First Department case for the contention that “the judgment of conviction on appeal did not ensue from the denial of the motion to suppress, and the latter is, therefore, not reviewable” pursuant to CPL 710.70 (2). The issue the Court was faced with is not whether the lack of suppression is harmless, but whether the Court has jurisdiction to review the ruling at all.

The majority followed the precedents of its three sister departments in holding that a defendant may not plead guilty to one count of an indictment and then appeal the denial of a suppression motion of another count in which no judgement was rendered but was covered by the plea.

Presiding Justice Whalen dissented, because he found that the majority adopted too strict of an interpretation of CPL 710.70 (2). He noted that the defendants conviction did follow as a consequence or result of the suppression, and therefore, the majority ignored the plain meaning of the statutory language. (JC/LC)

Officer’s Intent Irrelevant When Determining Whether Defendant Was Subject to Custodial Interrogation

In People v. Thomas (3d Dept. 11/9/2018), the Third Department held that the defendant was not subjected to custodial interrogation, even though a police officer testified that he would not have allowed the defendant to leave after he had entered the defendant’s residence.

The police responded to the defendant’s residence following a 911 call reporting a shooting. Defendant was initially asked to back up into the kitchen. The police explained that they simply wanted to be able to enter the residence safely and check the premises. A police officer then interviewed the defendant, his girlfriend, and two roommates together in the kitchen of the residence. The defendant was never handcuffed or otherwise restrained, and the defendant was free to move around the kitchen during the interview. However, a police officer testified that he would not have allowed the defendant to leave after he entered the residence. In other words, the defendant was not free to leave, but the officer never communicated that fact to the defendant.

The Third Department held that the officer’s subjective intent is irrelevant when determining whether or not a suspect was in custody at a particular time, where the officer’s subjective intent is not communicated to the suspect.  Instead, the proper inquiry is “what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant’s position.” The Court concluded, on the facts in the record, that a reasonable person would not have believed that he or she was in custody. Because he was not in custody during the questioning in his kitchen, the police were not required to give him Miranda warnings.

Further, the post-Miranda statements the defendant made at the police station cannot be considered “the fruit of the poisonous tree” because the initial statements were not the product of pre-Miranda custodial interrogation. The Court thus rejected the defendant’s claim that defense counsel was ineffective for failing to raise that ground for suppression of his post-Miranda statements. (BJD)

Searching Cell Phones: Confirmation to get the Warrant

In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone.