Fourth Department receptive to "rolling start" argument for Miranda violation?

People v Caballero, 2005 WL 3018031, 2005 NY Slip Op 08393

A suspect in a sexual abuse investigation was taken into custody and transported to police headquarters, where he was deposited in an "interview" room to await questioning. Two police investigators started talking with the suspect at 12:20 p.m. Miranda warnings were not given until 12:55 p.m. One of the interrogators later explained at the suppression hearing that the point of the pre-Miranda "general conversation" was "just to let [the suspect] get comfortable with me and comfortable with [the other investigator], . . . so he knew that both of us were decent-type guys, low key. You know what I mean? Just general easy conversation." (People v Caballero, Appellant's Brief at 10.) After Miranda warnings, the suspect gave a written statement implicating himself, and was convicted after trial of the alleged counts of sex abuse.

On appeal (People v Caballero, 2005 WL 3018031 [available here]), it was argued that the 35 minutes ofpre-Miranda conversation amounted to interrogation, and should have been preceded by Miranda warnings. As appellant explained, "the type of 'rolling start' employed by the Investigators, in which Mr. Caballero was softened up for further questioning with pre-Miranda tactics designed to get Mr. Caballero to let his guard down and speak freely with the investigators, was a 'technique of persuasion' amounting to interrogation." (Id. [citing Rhode Island v Innis, 446 US 291,299 [1980].)

While the Fourth Department did not reverse on this issue, its decision in Caballero is notable for what is does not say--the Court disposed of the issue outlined above by holding "[d]efendant failed to preserve for our review his contention that his pre-Miranda conversation with the police constituted custodial interrogation by failing to raise that specific contention in his motion papers or at the hearing. We decline to exercise our review that contention as a matter of discretion in the interest of justice." (People v Caballero, 2005 WL 301803].) That's it. Conspicuously absent is the next sentence that often follows the Court's observation that an issue is not preserved, i.e. "If we were to reach this issue, we would find it without merit," or some such language. The absence of that next sentence in Caballero suggests that, if the issue is properly preserved, the Court may very well find that the type of "rolling start" to interrogation employed by the investigators in Caballero is interrogation and must be preceded by Miranda warnings. Indeed, the Justices seemed legitimately interested in the issue at oral argument and seemed troubled by the idea that police officers can engage in "rapport building" for an extensive amount of time prior to giving Miranda warnings and then shift to questions about a specific crime.

This issue is potentially a good one for defendants if for no other reason that the tactic at issue--police making "general easy conversation" with a suspect before giving Miranda warnings--is so common. Assuming the appropriate facts are present (i.e. police chatting up a suspect prior to Miranda warnings), criminal defense trial attorneys would do well to add this argument to their suppression motion papers.