People v Decker, 2005 NY Slip Op 08569, 2005 WL 3022014 [available here]
In a drug prosecution alleging that defendant was in constructive possession of certain drugs found in his apartment, the police asked defendant "which key on the key ring opened the door to defendant's apartment." (People v Decker, 2005 WL 3022014.) The Fourth Department in People v Decker held that this express questioning about the keys was not interrogation under a Miranda analysis because "[t]hat question was not designed to invoke an incriminating response." (Id.) This focus on "question design", i.e. what the officer subjectively believed about the purpose of the question, seems at odds with clear Court of Appeals precedent. In fact, it is hard to see how the Court of Appeals could be any more clear on this score:
What constitutes 'interrogation' of a suspect . . . is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the subject as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response.
(People v Ferro, 63 NY2d 316, 319 [1984].)
It will be interesting to see if the Court of Appeals grants leave to review whether the Fourth Department has strayed too far in Decker, or whether the seeming irreconcilable holdings of Decker and Ferro are chalked up to loose language.
