| NY | Oct 25, 1984
Lead Opinion
OPINION OF THE COURT
What constitutes “interrogation” of a suspect who, after Miranda warnings, has declined to answer questions is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response.
On December 5,1975, Lillian Sher was murdered in her home during the course of a robbery in which some furs were stolen. A week later, defendant Ferro was arrested for the murder and taken to the precinct station. After the reading of his Miranda rights to him, Ferro declined to answer any questions. Thereafter, while being held in a detention cell, he asked Detective Hudson whether he could speak to a District Attorney. Told by Hudson that, “You have to tell me what you want to talk to him about so I can relate that to him. Otherwise, he won’t come”, defendant said nothing further. Hudson then left the precinct.
When he returned, Hudson and his partner brought with them the stolen furs, which they had obtained from the apartment of a codefendant, Thomas Lewis. Without any verbal communication with defendant, the furs “were placed right in front of the cell a foot away from [Ferro].” Ferro then “grabbed ahold of the wire mesh with both hands and * * * said * * * ‘Hey, I got to talk to you.’ ” He again told Hudson he wanted to speak to a District Attorney, stating “I will tell you guys what you want to know if the D.A. can do something for me”. Hudson responded that neither he nor the District Attorney could do anything for Ferro. Hudson testified that there was one continuous conversation, which began as soon as the furs were placed on the floor in front of the cell. Its culmination was Ferro’s request to speak to an Italian detective.
Detective Walter Cassi was then asked to speak to defendant, and, approaching the detention cage, said “I am Italian. Do you want to say something.” Receiving a positive response, Cassi took defendant into the commanding officer’s room, where defendant said “I can’t afford to do a lot of time. What can I tell you?” Told by Cassi that he could promise nothing, but would pass on whatever was said to the District Attorney “and whatever they do that’s their business,” Ferro recounted that he had been told by a woman who was decedent’s next-door neighbor that decedent was giving her a great deal of trouble for which she wanted decedent robbed as a means of revenge, that he had told the neighbor he was not interested, and in response to her question whether he could get somebody to do so, had
The hearing Judge denied defendant’s motion to suppress and after a jury trial defendant was found guilty of felony murder. On appeal to the Appellate Division, defendant raised nine points, only one of which — the admissibility of the statements made to Cassi — was deemed by that court to merit discussion. The judgment was affirmed, two Justices dissenting, the majority characterizing the statements “as the self-serving efforts of an aging criminal to spare himself the remainder of his life in captivity, and not the result of psychological coercion or police behavior reasonably likely to elicit an incriminating response.” (92 AD2d, at p 303.) The case is before us by leave of one of the dissenting Justices. The People, citing People v Bryant (59 NY2d 786), argue that, the Appellate Division having affirmed, the suppression ruling may not be overturned by us. They argue, alternatively, that the Appellate Division majority was correct on the law. We disagree on both points and, therefore, reverse.
II
A.
As hereafter developed, the test is not whether the detectives in fact intended to interrogate defendant but whether an objective observer would conclude that the conduct of the detectives was reasonably likely to elicit a response from defendant. There being no dispute as to the facts and there being no other inference that could be drawn from the undisputed facts than that the police should have known that defendant was reasonably likely to respond to the placing of the furs before him by making a statement, the issue, unlike that in Bryant (supra), is not beyond our reach.
Miranda v Arizona (384 U.S. 436" court="SCOTUS" date_filed="1966-06-13" href="https://app.midpage.ai/document/miranda-v-arizona-107252?utm_source=webapp" opinion_id="107252">384 US 436) requires not only that before interrogation can begin a suspect must be advised concerning his right to remain silent and of his right to counsel, but also that, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease” (id., at pp 473-474). Moreover, the rule being designed to counteract the coercive pressure of the custodial setting, a suspect’s right to remain silent, once invoked, must be “scrupulously honored” (id., at p 479; Michigan v Mosley, 423 U.S. 96" court="SCOTUS" date_filed="1975-12-09" href="https://app.midpage.ai/document/michigan-v-mosley-109336?utm_source=webapp" opinion_id="109336">423 US 96, 103-104; People v Wander, 47 NY2d 724, 725; see People v Grant, 45 NY2d 366, 373, 376). He may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime (People v Gary, 31 NY2d 68, 70; Michigan v Mosley, 423 U.S. 96" court="SCOTUS" date_filed="1975-12-09" href="https://app.midpage.ai/document/michigan-v-mosley-109336?utm_source=webapp" opinion_id="109336">423 US 96, 106, supra; see People v Buxton, 44 NY2d 33, 37), but a statement volunteered
As the Innis case makes clear, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response” (446 US, at p 301). But, because “[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police” (id.), the question is not what was the subjective intent of the police but rather what words or actions, in light of their knowledge concerning the suspect, they “should have known were reasonably likely to elicit
In the context of the foregoing rule, defendant’s statements to Cassi must be suppressed. After the original Miranda warnings, defendant declined to answer questions. Although he thereafter asked to speak to a District Attorney, he abandoned that attempt when told that he first had to reveal to Hudson what he wanted to talk about. With the knowledge from defendant’s request to speak to a District Attorney that defendant had something on his mind that he wanted to talk about but would not reveal to him, Hudson, instead of acceding to defendant’s request that a District Attorney be called in, left and within a relatively short time returned with decedent’s furs, which were placed directly in front of defendant without any words being spoken. The immediate result was defendant’s further request to speak with a District Attorney, followed, in one continuous conversation, by his request for an Italian detective and his conversation with Cassi. Neither before the placing of the furs nor before Cassi’s conversation with defendant were fresh Miranda warnings given, although here, unlike the situation in People v Bryant {supra), there was both time enough to do so and clear reason, in light of the prior refusal to speak, for doing so.
On those undisputed facts, objectively considered, no other conclusion is possible than that, in causing the decedent’s furs to be placed where defendant could not help but see them, Hudson should have known, in light of defendant’s prior request to speak to a District Attorney, that doing so was reasonably likely to elicit from defendant an incriminating response. Where, as here, and as in Combs v Wingo (465 F2d 96,99) and United States v Barnes (432 F2d 89, 91), the only possible object of the police action in revealing evidence to a defendant is to elicit a statement
We have considered defendant’s other arguments for reversal and find them to be without merit.
For the foregoing reasons, the order of the Appellate Division should be reversed, defendant’s motion to suppress his statements made subsequent to his viewing of the furs granted and a new trial ordered.
. Not involved in the present case and, therefore, not reached by us, is whether the same test applies when the police conduct is in furtherance of routine administrative duties (see People v Prator, 93 Misc. 2d 303" court="None" date_filed="1978-02-23" href="https://app.midpage.ai/document/people-v-prator-6198777?utm_source=webapp" opinion_id="6198777">93 Misc 2d 303; State v Grisby, 97 Wn 2d 493; cf. People v Bryant, 59 NY2d 786).
. Bryant involved a question addressed by one officer to another, overheard by defendant and to which he responded. Upon that scenario “reasonable minds may differ as to the inference to be drawn from the established facts” (People v McRay, 51 NY2d 594, 601; accord People v Harrison, 57 NY2d 470, 477). Here, as is more fully discussed below, no other inference can be drawn from the undisputed facts than that defendant was likely to respond by making a statement.
. Voluntariness — waiver in traditional terms — is to be distinguished (People v Grant, 45 NY2d 366, 374). A statement may in fact be wholly voluntary and yet inadmissible because the police action after the suspect cut off questioning did not comply with required procedures (id,.; Michigan v Mosley, 423 U.S. 96" court="SCOTUS" date_filed="1975-12-09" href="https://app.midpage.ai/document/michigan-v-mosley-109336?utm_source=webapp" opinion_id="109336">423 US 96, 100; Michigan v Tucker, 417 U.S. 433" court="SCOTUS" date_filed="1974-06-10" href="https://app.midpage.ai/document/michigan-v-tucker-109063?utm_source=webapp" opinion_id="109063">417 US 433, 443).
. The string of adjectives in the last paragraph of the dissent and of synonyms in the second paragraph on its page 325 overlooks the meaning of “scrupulous”, which is “correct to the smallest detail; punctiliously exact; painstaking, precise” (Webster’s Third New International Dictionary, p 2043). As Kamisar puts it, “If the police conduct is designed and likely to pressure or persuade * * * a suspect to incriminate himself * * * then that conduct is ‘compulsion’ as Miranda defines the self-incrimination clause” (67 Geo LJ 1, at p 23). The dissent’s interpretation oí Innis implies that the Supreme Court did not mean what it held in that case. We should not indulge in such speculation, particularly since Innis was decided but a few years ago.
Dissenting Opinion
(dissenting). The majority, in holding that the “placing in front of the cell in which defendant was being detained furs stolen from the murder victim’s residence constituted interrogation”, interprets the “likely to elicit” test (see Rhode Island v Innis, 446 U.S. 291" court="SCOTUS" date_filed="1980-05-12" href="https://app.midpage.ai/document/rhode-island-v-innis-110254?utm_source=webapp" opinion_id="110254">446 US 291, 303) too literally and mechanically, untempered by the purposes to be served thereby. Moreover, the majority fails to distinguish between the differing policies involved and the ramifications resulting where the suspect has sought the assistance of counsel — which defendant did not do here — as opposed to merely choosing initially to remain silent. (Cf. Brewer v Williams, 430 U.S. 387" court="SCOTUS" date_filed="1977-05-16" href="https://app.midpage.ai/document/brewer-v-williams-109624?utm_source=webapp" opinion_id="109624">430 US 387, 397.) The proscriptions to be applied in each instance are not the same.
Because I strongly believe that the mere placing of evidence in front of defendant cannot be deemed an unconstitutional interrogation in violation of the right to remain silent, invoked upon the reading of Miranda warnings, I respectfully dissent.
After Miranda warnings were given and defendant chose not to answer questions, the police refrained from further
The constitutional privilege against compulsory self-incrimination does not bar mere self:incrimination. It prohibits only that which is genuinely compelled — i.e., the result of coercion or overbearing of the will of the accused. (New York v Quarles, 467 US_,104 S. Ct. 2626" court="SCOTUS" date_filed="1984-06-12" href="https://app.midpage.ai/document/new-york-v-quarles-111214?utm_source=webapp" opinion_id="111214">104 S Ct 2626, 2630-2632; United States u Washington, 431 U.S. 181" court="SCOTUS" date_filed="1977-05-23" href="https://app.midpage.ai/document/united-states-v-washington-109659?utm_source=webapp" opinion_id="109659">431 US 181, 187-188; Michigan v Tucker, 417 U.S. 433" court="SCOTUS" date_filed="1974-06-10" href="https://app.midpage.ai/document/michigan-v-tucker-109063?utm_source=webapp" opinion_id="109063">417 US 433, 448.) Statements voluntarily made, regardless of how damning, are not proscribed. (United States v Washington, supra, at p 187; see, also, Miranda v Arizona, supra, at p 478.) Defendant does not claim, nor is there any indication in the record, that he was actually compelled by police conduct which in any way overcame his will to resist.
Moreover, the “likely to elicit” test invoked by the majority is not an explicit constitutional prescription mandating blind application in every case, regardless of the resulting absurdity under particular facts. (Cf. North Carolina v Butler, 441 U.S. 369" court="SCOTUS" date_filed="1979-04-24" href="https://app.midpage.ai/document/north-carolina-v-butler-110065?utm_source=webapp" opinion_id="110065">441 US 369, 374-379; Michigan v Mosley, 423 U.S. 96" court="SCOTUS" date_filed="1975-12-09" href="https://app.midpage.ai/document/michigan-v-mosley-109336?utm_source=webapp" opinion_id="109336">423 US 96, 102-103.) Rather, it is an interpretive guideline to assist in determining whether certain police activity is the “functional equivalent” of an interrogation. (Rhode Island v Innis, supra, at p 302; see, also, Brewer v Williams, 430
Ultimately, then, it is this right against compulsory self-incrimination, and not simply some felicitous tests uninformed by their policy purposes, which underlies Miranda and its progeny. It is that right which is at issue here and which should guide this court’s decision. In considering the facts in this case, “[c]ertainly no one could contend that the interrogation faced by [defendant — if it could reasonably be labeled as such — ] bore any resemblance to the historical practices at which the right against compulsory self-incrimination was aimed.” (Michigan v Tucker, supra, at p 444.)
While noninterrogatory statements of police officers and even their nonverbal actions may in some instances amount to unlawful interrogation of a suspect within the meaning of Miranda (see Rhode Island v Innis, supra, at p 299), nevertheless, not all “prompting” of any kind is constitutionally proscribed. (Id.; Edwards v Arizona, 451 U.S. 477" court="SCOTUS" date_filed="1981-06-22" href="https://app.midpage.ai/document/edwards-v-arizona-110475?utm_source=webapp" opinion_id="110475">451 US 477, 488 [Burger, Ch. J., concurring].) Thus, while the skillful employment of religious compulsion (Brewer v Williams, supra) and deceitful confidences (United States v Henry, 447 U.S. 264" court="SCOTUS" date_filed="1980-06-16" href="https://app.midpage.ai/document/united-states-v-henry-110300?utm_source=webapp" opinion_id="110300">447 US 264) have been held to be impermissible “deliberate elicitations” (id., at p 270), the discussion of child-safety concerns in a suspect’s presence (Rhode Island v Innis, supra) and the advisement of the accused of additional charges being brought against him (Michigan v Mosley, supra) have been upheld.
Indeed, there is no rigid rule constituting “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, [for that] would transform the Miranda safeguards into wholly irrational obstacles to
To construe the mere placing of evidence before defendant — little more than a simple disclosure of information which might, in fact, contribute to an intelligent exercise of his judgment — as an impermissible interrogation is to attribute to that police conduct the qualities of coercion and overbearing of defendant’s will which it certainly was not. Such a construction, in my view, gives a tortured and unintended interpretation to the Miranda safeguards and the underlying privilege against compulsory self-incrimination. Indeed, in numerous cases involving analogous police conduct under circumstances similar to those presented here, Federal appellate courts have refused to regard the police actions as interrogations in violation of asserted Miranda rights. (See, for example, the following, all of which were decided subsequent to the United States Supreme Court’s definition of “interrogation” in Innis: United States v Guido, 704 F2d 675 [CA 2d] [suggestion that defendant cooperate initiated by government agents, not impermissible interrogation]; United States u Criswell, 696 F2d 636 [CA 8th] [placing defendant in an office where persuasive photographs were displayed, not impermissible interrogation]; United States v Thierman, 678 F2d 1331 [CA 9th] [conversation in defendant’s presence about the likelihood that the investigation would involve his family and girlfriend, not impermissible interrogation]; United States v Hackley, 636 F2d 493 [CA-DC] [explanation of the incriminating evidence against defendant, not impermissible interrogation]; see, also, the following which, although decided prior to Innis, have since been cited with approval
Finally, the majority’s rigid application of the “likely to elicit” test ignores the significant distinctions between the right to remain silent and the right to assistance of counsel — only the former of which did defendant choose to exercise. Although he was advised fully in accordance with Miranda, defendant did not ask for counsel, invoke the right thereto, nor in any form indicate that he was awaiting counsel’s arrival or assistance. In fact, he repeatedly requested to speak with the District Attorney despite the absence of an attorney.
Defendant simply exercised his right to remain silent upon receiving the Miranda warnings, thereby foreclosing any further questioning until such time as he should voluntarily and freely decide otherwise. Whereas “additional safeguards are necessary when the accused asks for counsel” and, therefore, “interrogation [must] cease until an attorney [is] present” (Edwards v Arizona, 451 US, at pp 484, 485), that is true “only if the individual [has] stated that he wanted counsel” (id., at p 485 [emphasis added]). (See, also, People v Cunningham, 49 NY2d 203; People v Grant, 45 NY2d 366.) Otherwise, “the accused may himself
The “policies underlying the two constitutional protections [right to assistance of counsel and privilege against compulsory self-incrimination] are quite distinct” (Rhode Island v Innis, 446 US, at p 300, n 4) and, consequently, so too are the appropriate procedural safeguards. With regard to the right to counsel, “[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” (Miranda v Arizona, 384 US, at p 474 [emphasis added].) However, where an individual simply indicates his desire to remain silent, the situation is different. There is no “per se proscription of indefinite duration upon any further questioning”. (Michigan v Mosley, 423 US, at p 102; see, also, People v Grant, supra, at p 375; People v Cunningham, supra, at p 207.) Rather, as long as the individual’s “right to cut off questioning” is “scrupulously honored” (Miranda v Arizona, supra, at pp 474, 479 [emphasis added]), he may at any time make an “informed and intelligent” reassessment of his interests and permit questioning to resume. (Michigan v Mosley, supra, at pp 102, 104.)
In deciding that the entirely innocuous, nonverbal and noncoercive police conduct in this case amounted to unconstitutional interrogation by mechanically applying the “likely to elicit” test, the majority fails utterly to distinguish “between the procedural safeguards triggered by a request to remain silent and a request for an attorney”. (Michigan v Mosley, supra, at p 104, n 10, explaining Miranda v Arizona, supra, at p 474.) That distinction was made clear in Miranda and has been repeatedly recognized in its progeny. (See, e.g., Oregon v Bradshaw, 462 U.S. 1039" court="SCOTUS" date_filed="1983-06-23" href="https://app.midpage.ai/document/oregon-v-bradshaw-110987?utm_source=webapp" opinion_id="110987">462 US 1039 [Rehnquist, J.], 1047 [Powell, J., concurring], 1051 [Marshall, J., dissenting]; Edwards v Arizona, 451 US, at pp 484-485 [White, J.], 491, n 1 [Powell, J., concurring]; United States v Henry, 447 US 264, 272-273 [Burger, Ch. J.], 282, n 6 [Blackmun, J., dissenting], 295-296 [Rehnquist, J., dissenting]; Rhode Island v Innis, 446 US, at p 300, n 4 [Stewart, J.]; Brewer u Williams, 430 US, at pp 397-398 [Stewart, J.], 424-426 [Burger, Ch. J., dissenting], 436-437, n 6 [White, J., dissenting]; Michigan v Mosley,
Here, the defendant expressed no view nor gave the slightest indication that he was incompetent to decide whether to permit a resumption of questioning without legal advice. (Cf. Michigan v Mosley, supra, at p 110, n 2 [White, J., concurring].) Rather, he simply asserted his desire not to speak with the police at the outset, and subsequently decided, without any coercion of any sort, to change his mind in light of the incriminating evidence placed before him. In my view, the prophylactic safeguards of Miranda and its progeny do not preclude an individual from thus making an informed and voluntary reassessment of his interests, and do not proscribe, as an impermissible interrogation, the kind of nonverbal, noncoercive, nonthreatening, ánd even nonbothersome police conduct at issue in this case.
Accordingly, I would affirm the refusal of both courts below to suppress the statements volunteered by defendant.
Chief Judge Cooke and Judges Jones, Simons and Kaye concur with Judge Meyer; Judge Jasen dissents and votes to affirm in a separate opinion; Judge Wachtler taking no part.
Order reversed, etc.