Lead Opinion
OPINION OF THE COURT
A defendant’s State constitutional right to counsel "indelibly attaches” upon actual representation in a criminal matter.
Defendant, along with twin brothers Michael and Mark Davenport, was part of a drug operation based in a house on West 116th Street in Manhattan. On February 15, 1982, a fight broke out in front of the house during which Sylvester Coleman was shot and killed. On June 30, 1982, the police placed defendant in a lineup in connection with the shooting. Defendant was at that time represented by counsel. The People do not dispute that counsel’s presence was recorded in the police file on this matter, and that counsel instructed defendant was not to be questioned in his absence. The results of the lineup were inconclusive and defendant was not charged at that time.
Some three years later, Michael Davenport was arrested in connection with unrelated crimes, admitted that he was one of the gunmen in the Coleman slaying, identified defendant as another, and signed a cooperation agreement with the District Attorney in exchange for leniency. In December 1985 and January 1986, at the direction of law enforcement officials and in an effort to help his brother, Mark Davenport surreptitiously tape-recorded several conversations with defendant. Before arranging for these conversations, the police made no attempt to determine whether defendant was still represented by his lawyer. In the taped conversations, defendant made statements consistent with guilt, and was thereafter indicted for murder.
Prior to trial, defendant’s attorney — the same attorney who had represented him at the lineup — moved to suppress the taped statements, claiming they were taken in violation of defendant’s right to counsel. The People responded that, more than three years after the lineup, the police had no reason to believe the representation continued, and defendant’s papers did not allege that he was in fact still represented at the time of the tape-recording. Supreme Court summarily denied suppression.
Defendant’s taped statements figured prominently in the prosecution’s trial presentation. The prosecution’s other primary evidence came from three interested witnesses: Mark Davenport, Michael Davenport and Thomas Kelly, a known heroin user and frequent customer of the drug organization.
The Appellate Division affirmed the conviction, reasoning that the investigation for which defendant had obtained counsel had been terminated and that the taped statements were made as part of a new investigation. The Appellate Division also considered it significant that the taped conversations were noncustodial. We disagree, concluding that the taped statements were taken in violation of defendant’s right to counsel, their use cannot be deemed harmless, and a new trial is required.
I.
The State right to counsel is a " 'cherished principle’, rooted in this State’s prerevolutionary constitutional law and developed 'independent of its Federal counterpart.’ ” (People v Harris,
The State right to counsel attaches indelibly in two situations.
First, the right attaches indelibly upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer (see, e.g., People v Samuels,
Second, the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the
A. Representation by Counsel in the Matter at Issue
This case concerns the second situation — in particular, indelible attachment of the right to counsel by actual representation in the matter at issue. We agree unanimously that defendant’s right to counsel attached indelibly when counsel entered his appearance at the lineup and instructed the police not to question his client. We differ as to the significance of that right.
The majority, applying long-settled law, concludes that indelible attachment of the right to counsel means that a suspect cannot be questioned about the matter without counsel, and that defendant’s right was violated by the covert interrogation. The dissent, drawing a new distinction, concludes that where the right to counsel arises from representation in a matter, no violation results from covert police questioning about the same matter unless defendant establishes that the attorney-client relationship existed at the moment of questioning. A brief review confirms that the dissent’s purported distinction is without basis.
The rule that an uncharged represented individual cannot be questioned without counsel originated in the context of custodial interrogation, and was explicitly premised on grounds identified in Di Biasi: the need to protect accuseds against the coercive power of the State and promote knowing and intelligent waivers (see, People v Hobson,
We next applied the principle to noncustodial questioning (People v Skinner,
We granted suppression of defendant’s statements. We concluded that even in a noncustodial setting, by retaining an attorney in response to police-initiated contacts about a particular matter, defendant manifested his belief that he was unable to deal with the coercive power of the authorities without legal assistance and the State could not derogate that right by subjecting the individual to questioning (People v Skinner,
In People v Knapp (
Thus, it is clear that "indelible attachment” has a common foundation and significance whether the right arises from the commencement of formal proceedings or actual representation
A suspect whose right has indelibly attached has no obligation to keep the police informed as to the status of the attorney-client relationship. Should the police wish to question defendant without counsel on the same matter after the right has attached, it is as a rule their burden to determine whether representation continues (People v Marrero,
In Marrero, the defendant was represented by counsel only for the purposes of arranging surrender and was not actually represented during police questioning. Nonetheless, since defendant’s indelible right to counsel attached when his attorney first appeared, his statements were suppressed:
"Once an attorney has appeared on the defendant’s behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to justify police questioning of the defendant without the attorney being present * * * We have indicated that if the police are uncertain as to the scope of the attorney’s representation, the defendant should not be questioned * * * Because of the limited and unusual arrangement the attorney had made with the defendant, that representation may actually have terminated prior to the questioning. But there was no finding that the police were aware of that peculiar arrangement.” (Id., at 59 [citations omitted].)2
An entirely different situation exists when the defendant is unrepresented in the matter at issue but has counsel in an unrelated matter. Then, the question is whether a right to counsel attaches in the matter at issue simply by virtue of defendant’s representation in the unrelated matter. These cases, which are the core of the dissent’s new rule, are plainly inapposite here.
Initially, a suspect represented in an unrelated matter could be questioned about matters in which the suspect was not represented (see, People v Taylor,
It is the Rogers right that is solely "concerned with protection of an existing attorney-client relationship” (People v Robles,
After Rogers, a broader rule developed that prohibited police questioning whenever a defendant had counsel in a unrelated matter (see, People v Bartolomeo,
Under Bartolomeo, the police were obliged to inquire whether a suspect was represented in any unrelated matter of which they had knowledge. Failing such inquiry, the police were bound by what such inquiry would have revealed — meaning the derivative right could attach without actual knowledge that the suspect was represented by counsel at all. Indeed, that was the case in Bartolomeo itself, where the police questioning defendant had no knowledge of his representation in an unrelated matter, yet were charged with having violated defendant’s derivative right (People v Bartolomeo,
Recognizing the potential breadth and undue societal cost of Bartolomeo, we first confined the rule. We required inquiry only where the police had actual knowledge of the prior pending charge (People v Bertolo,
The dissent distorts our precedents by suggesting that defendant must prove actual representation "at the time of interrogation” (dissenting opn, at 384 and 385). The issue in the cases cited by the dissent for such a requirement — People v Rosa (
Thus, the cases relied on by the dissent are plainly inapposite. They are concerned only with whether the right to counsel attached in the first instance. Here we have no such concern. There is no question that defendant was represented in the matter at issue, and no question that his right to counsel attached indelibly.
II.
Applying the relevant precedents to the facts at hand, we conclude that defendant’s right to counsel was violated when the police sent an informant to surreptitiously record incriminating statements about the counseled matter without regard to their knowledge that defendant had a lawyer in the case. Unlike Skinner, where the police notified counsel that their investigation was resuming after a two-year break, here the police sidestepped counsel, whose appearance was reflected in their files. Law enforcement officials, however, could not sidestep defendant’s constitutional rights by failing to inquire whether the attorney-client relationship continued with respect to the very matter under investigation (see, Skinner,
The People argue that they were justified in assuming the relationship ceased because more than three years had elapsed from counsel’s appearance. Mere passage of this period of time, however, did not eradicate defendant’s indelible
Our holding does not establish a new standard of strict liability (dissenting opn, at 388), but follows on the established proposition that law enforcement officials who know that a right to counsel has indelibly attached may not question individuals on that matter without counsel. The fundamental premise, of course, is that the right to counsel has attached in the first instance — whether by the commencement of formal proceedings, by actual representation, or by a suspect’s request for counsel while in custody.
It is indeed the dissent that seeks to open a new byway in the law, relying on cases dealing with a derivative right to urge that indelible attachment means something different when it arises from actual representation in a matter. The dissent’s new standard unduly derogates the cherished right to counsel, allowing the police to question a client even immediately after learning of representation in the matter, gambling that the attorney-client relationship may have terminated, with the legality of their actions tested (if at all) only after the fact. We have never condoned such a "license to play fast and loose with this precious right” (People v Ramos,
We therefore conclude that the police were not free to disregard counsel’s instruction. Should the police have desired to question after defendant’s right had attached, it was their burden to determine whether the attorney-client relationship had terminated.
Contrary to the dissent’s repeated assertion, we do not hold that the right to counsel is interminable. This is not a case
Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress the tape-recorded statements granted, and a new trial ordered.
Notes
. To be distinguished is a situation, as in People v Davis (
. The dissent’s statement that Marrero was not decided on Hobson grounds (dissenting opn, at 389-390) is puzzling, as that case directly follows from Hobson principles (see, People v Marrero,
. In this case, neither the interest protected nor the burden imposed bears any resemblance to Bartolomeo (dissenting opn, at 391). Here, the police knew of counsel’s representation and instruction yet arranged for covert questioning of defendant about the very same charge. Prohibiting such questioning protects the right to counsel which was known to have indelibly attached. Bartolomeo, by contrast, required police investigation to determine whether defendant had a right to counsel at all, stemming from unrelated representation of which they might not even be aware. There should be no doubt whatever that the Bartolomeo cases and their underlying rationale are no longer part of our law (see, People v Bing,
Dissenting Opinion
(dissenting). It would seem self-evident that unless defendant was represented by an attorney at the time, the police could not have been guilty of interfering with an attorney-client relationship by questioning him. The majority holds, however, that an attorney-client relationship, once established, is indelible and will be presumed to continue indefinitely. Unless the police prove that they knew the relationship had ended, any interrogation by them "unduly derogates the cherished right to counsel” (majority opn, at 380).
But a right must exist before it can be protected, cherished or, for that matter, derogated. Thus, in my view, our inquiry should start with a determination of whether the defendant had any rights at the time of the interrogation, not on what police thought at the time of questioning. If he was represented at the time, the tapes should be suppressed; if he was not, then his motion should be denied. Asking him to establish at the suppression hearing that he had counsel when questioned places little burden on him and is consistent with our precedents. Inasmuch as defendant has not even claimed that he was represented at the time of the interrogation, much less proved it, I would affirm.
I
Defendant was charged with murder after the execution style shooting of Sylvester Coleman, a stranger to him, outside a New York City apartment building. He shot Coleman in the head in a fit of anger because Coleman had parked on the
More than three years later the police obtained the cooperation of Michael Davenport, a participant in the crime, and used him to question defendant and tape the inculpatory statements now challenged. Defendant was not charged with the crime and was not in custody at the time the tapes were made.
Whether these statements should be suppressed depends on whether the defendant was represented by an attorney when he made them. Because that factual issue was not resolved at the suppression hearing, the question becomes one of who had the burden of proof: defendant, to show he was represented at the time, or the People, to show that he was not.
II
A
First, under our cases defendant’s right to suppression depends on whether he was represented by counsel at the time he was questioned by police.
It is now well established that when a right to counsel has attached, it may not be waived by a defendant in the absence of counsel (see, People v Robles,
The Hobson line of cases rests on a different premise than the Di Biasi line. The Di Biasi rule protects the abstract right to counsel. Whether an attorney has been retained or not, we have recognized the need to protect those accused of a crime from the "coercive power of the State” and have barred uncounseled questioning unless the right has been waived with counsel present (People v Settles, supra, at 164). In the Hobson line of cases, however, it is not the abstract right to counsel that is protected — that arises only when formal adversary proceedings have commenced — but the actual attorney-client relationship (People v Hobson, supra, at 484). In Hobson cases, it is the client’s "right to the continued advice of a lawyer, already retained or assigned” that requires the law’s protection and forecloses uncounseled interrogation (id., at 485 [emphasis added]). Were the rationale for Hobson simply the need to combat the coercive power of the State, there would be no need to tie the attachment of the right to the entry of counsel into the matter, for the problem of undue coercion during a police investigation surely exists — indeed, more profoundly exists — for the defendant who has never spoken to an attorney.
We first made the distinction between the abstract right to counsel, which is crucial to a Di Biasi case, and an existing attorney-client relationship, which is the critical element in a Hobson case, in People v Kazmarick (
We have accepted that principle both in the old Bartolomeo
The majority, contending otherwise, finds that right to counsel remains regardless of whether representation continues, because the right is "indelible”. But the right to counsel is said to be indelible, once it attaches, only insofar as it cannot be waived except in counsel’s presence. That definition of "indelible” was first stated in People v Settles (
B
In addition to requiring a continuing attorney-client relationship, our cases also place the burden of proving continued representation on the defendant when suppression is sought.
Working from the rationale of Kazmarick, we made explicit in People v Rosa (
Because the majority does not read People v Rosa to hold that the indelible right to counsel ends when the lawyer withdraws, it is helpful to recount at some length the facts and the holding of the Court in that case. In Rosa defendant was convicted of murdering a Manhattan grocer, and the question was whether his inculpatory statements to the Manhattan police had to be suppressed. He claimed they did because he was represented by counsel at the time. He based his claim on an attorney-client relationship established on an unrelated Brooklyn charge. The Appellate Division granted the motion to suppress, assuming that because adversarial proceedings had commenced in Brooklyn the right to counsel had attached there and defendant’s derivative right to counsel attached in the Manhattan investigation also (
The hearing record established that, to the knowledge of the Manhattan police, a Legal Aid attorney had appeared for defendant at arraignment and the preliminary hearing on the
On this evidence, the Appellate Division accepted the very argument defendant makes here: that inasmuch as defendant was once represented, the representation continued unless the People proved it had terminated (see, People v Rosa,
Thus, contrary to the majority’s statement (majority opn, at 379), the critical issue in Rosa was not whether defendant’s right to counsel had attached before he was questioned. Manifestly it had. Counsel appeared for him at arraignment and during a preliminary hearing and then asked to be relieved because of a conflict. During the time defendant was represented, his right to counsel had indelibly attached on both matters and the critical issue was whether the representation had terminated. If it continued, the police would have been chargeable with knowledge of the representation and the motion to suppress should have been granted.
We held, in the language quoted above, that the burden of proving the existence of an attorney-client relationship rested on defendant, and since he had failed to establish that he was represented at the time the Manhattan police questioned him,
In Rosa we explained why the burden should rest on defendant in such cases. Representation in criminal matters is rarely a subject of written retainer. Frequently, the relationship is established orally and its continuation is a matter that exists only in the subjective understanding of the attorney and the client. That being so, the defendant, as we noted in Rosa, is in the best position to know whether he is represented at the time of interrogation. Moreover, to shift the burden to the People — as the majority does here — would be to ask them to prove a negative, a requirement the law finds " 'generally unfair’ ” (People v Rosa, supra, at 386). It is also worth noting that in many cases, particularly those involving a lengthy passage of time, it may be difficult or impossible for the police to inquire of the defendant or to search out counsel without jeopardizing their investigation and it may be difficult or impossible for them to obtain a clear answer if they do. Indeed, if the police had inquired of counsel here, he might not have chosen to answer their questions or been able to do so unequivocally because he had represented both defendant and the police informant in the past.
Rosa differs factually from the case before us because Rosa based his unsuccessful claim of a right to counsel on representation in an unrelated pending charge. But the decision closely tracks this case otherwise: Police were aware that at some previous point the right to counsel had attached, but were unsure whether an attorney-client relationship existed at the time of questioning. They did not inquire as to the status of the legal representation but instead proceeded to question the defendant. Both cases involved a Hobson right to counsel, rather than the abstract Di Biasi right to counsel, and thus the right could have been terminated by withdrawal of the attorney or other acts unknown to the police.
If defendant carries his burden at the suppression hearing and shows that he was represented at the time of the questioning, suppression should be granted (People v Rosa, supra,
Ill
It remains to apply the Rosa principles to the facts of this case.
The record before us shows only that counsel appeared for defendant at the lineup and instructed the police at that time not to question his client. Even now, on the appeal to this Court, defendant has not claimed more. Indeed, counsel asserts that whether defendant was represented at the time he was questioned is irrelevant, that because he had an attorney three years earlier, the police could not question him thereafter without a counseled waiver of his rights regardless whether the relationship continued or not. But that is not what our precedents hold. The attorney-client relationship must exist at the time of questioning and under Rosa and the cases cited above the burden of proving that it continued rested on defendant. Because he failed to sustain that burden in this case, his motion for suppression was properly denied by the hearing court.
It is no answer to suggest, as the majority does, that the police should investigate whether the attorney-client relationship has continued before interrogating a defendant (majority opn, at 376, 379). The question here is what should happen if they do not. Rosa and Bertolo stated a sound, practical answer appropriately tailored to protect a suspect’s right to counsel: If an attorney-client relationship existed at the time of questioning, suppression should be granted. The burden for establishing those facts, as Rosa expressly held, is on the defendant. The majority’s holding, however, departs from those cases and establishes a standard of strict liability: Suppression is automatic if the duty to inquire is ignored, regardless of what an inquiry would discover. I can think of no justification for such a rule. Indeed, the majority’s holding shifts the focus and effect of our right-to-counsel rules from protection of a right to punishment of perceived wrongdoing by police.
Some final observations about the majority opinion are appropriate.
First, the majority relies extensively on People v Knapp (
Next, to support its contention that the People had the burden to prove the nonexistence of an attorney-client relationship in Hobson cases, the majority relies on People v Davis (
The majority also relies on People v Marrero (
In Marrero, the defendant retained a lawyer to arrange his surrender to police. The lawyer agreed to represent him for only that limited purpose. He called the police to his office, surrendered the defendant to them and the police took defendant to the station for questioning without his lawyer. We acknowledged in our decision that the representation had, in all likelihood, terminated before the police questioned defendant, but we nonetheless held that his right to counsel had attached and was violated by the questioning. But we did not arrive at that conclusion by relying on the interpretation of
But more to the point, in Marrero the Court refused to decide whether representation had ceased or not, implicitly recognizing that fact could be critical in Hobson cases, and it did not decide who had the burden to establish the existence of an attorney-client relationship.
I also disagree with the majority on more fundamental grounds. Its decision overlooks the distinction between the abstract right to counsel in a Di Biasi case and the right to counsel arising from actual representation under Hobson. This lumping together of the two concepts may require suppression in future cases when no right of the suspect has been violated. It would not matter, for instance, that the attorney had died, been disbarred, chosen to withdraw, or terminated the relationship because of a conflict of interest. Under the majority’s rule the relationship, once established, would be presumed to continue indefinitely. The majority claims this is not so (majority opn, at 380), but it fails to state clearly how this presumption would be overcome. It first states that if "the police, at the time they arranged for secret tape-recordings, had any reason to believe that a known attorney-client relationship in the matter had ceased,” the questioning would have been proper (majority opn, at 381 [emphasis added]). Thus, the dispositive inquiry seems to be what the police believed at the time of questioning, not the actual state of defendant’s legal representation. Yet, in the same paragraph, the majority states a second standard, one that is quite different: If it had been shown that the relationship had in fact terminated, the questioning would have been proper (majority opn, at 381). The standard thus becomes one not of police knowledge but of actual representation.
The majority does not indicate which of its two standards is actually to be applied by trial courts, but both pose difficulty.
Judges Titone, Hancock, Jr., Bellacosa and Smith concur with Chief Judge Kaye; Judge Simons dissents and votes to affirm in a separate opinion.
Order reversed, etc.
. The same attorney apparently represented others in the lineup, including Michael Davenport, a codefendant who subsequently became the police informant in this case.
. The successor attorney filed a notice of appearance on the day defendant was questioned by the Manhattan police, January 26, but it was unclear whether the notice was filed before or after the questioning and the issue of representation did not turn on the successor attorney’s appearance.
. Moreover, contrary to the statement of the majority (see, majority opn, at 375, n 1), Davis’ right to counsel did attach under the rule in People v Cunningham (