Sunday, October 01, 2006

AD4: We know "custody" when we see it

In dealing with the legality of police-citizen encounters, it is critical to pinpoint the point of custody, i.e. the moment at which a reasonable, innocent person would no longer feel free to leave. The resolution of this "custody" question often resolves the legality of the police conduct--a whole slew of police actions and so-called "detentions" are permissible on less than probable cause so long as the suspect is not found to be in "custody" yet. Three decisions handed down by the Fourth Department this term highlight the contours of the Fourth Department's thinking on "custody" matters; the decisions are somewhat contradictory, but nonetheless provide useful guideposts.

People v Mc Clain, 2006 NY Slip Op 06947 [available here]

In People v Mc Clain, the defendant was seized by multiple police officers at gunpoint, handcuffed, frisked and transported back to the crime scene for a showup identification. (Mc Clain, NY Slip Op 06947.) The Fourth Department held that the police conduct amounted to a full arrest justifiable only on a showing of probable cause--"the actions of the police officers in drawing their guns, handcuffing and frisking defendant, and transporting defendant, while handcuffed, to the scene of the robbery amounted to an arrest of defendant." (Id.) This is a welcome decision from the AD4, because usually in a case where a defendant is detained (however forcefully) only briefly for purposes of conducting a showup identification, mid-level appellate courts will cite to the seminal Court of Appeals decision in People v Hicks and justify the so-called "temporary investigative detention" on a lesser showing of reasonable suspicion. Hey, wait a minute . . . that's exactly what the Fourth Department did in . . .

People v Wiley, 2006 NY Slip Op 07060 [available here]

. . . where the defendant was stopped on a public street, searched, handcuffed and locked in the back of a police cruiser without any explanation of why he was being detained. (Full disclosure: I was the attorney on appeal for Mr. Wiley.) The Fourth Department affirmed the trial court's denial of defense counsel's motion to suppress, holding "[t]he police had the requisite reasonable suspicion to stop and detain defendant for a showup identification procedure." (Wiley, 2006 NY Slip Op 07060.) From the decision:

[A]lthough the officer handcuffed defendant prior to transporting him to the crime scene for the showup identification procedure, defendant was not taken to the police station at that time, the conversation between defendant and the officer was congenial, and the crime scene was a short distance from the location where defendant was stopped by the officer. The record further establishes that defendant was not interrogated during the brief detention and, indeed, the officer stopped defendant from speaking to him, administered Miranda warnings and discontinued conversation with defendant until after the showup identification occurred. [...] Thus, we agree with the People that the police "diligently pursued a minimally intrusive means of investigation likely to confirm or dispel suspicion quickly, during which time it was necessary to detain the defendant."
(Id. at __.)

The only difference between Wiley and the facts of Mc Clain is that the officers drew their guns in Mc Clain. I have my doubts as to whether that should make a difference--it seems a reasonable, innocent person in Mr. Wiley's shoes would not have felt free to leave the officer's presence once he was stopped, frisked, searched, handcuffed, locked in the back of the police cruiser and transported without explanation. But even assuming a person would feel free to leave after being cuffed and locked in a police car, I gotta believe even the most naive person in the world would feel less-than-free if, during the course of casual conversation, the officer read Miranda warnings (i.e. the hallmark of an arrest to anyone who has watched any primetime cop show in the last 20 years). But I digress.

People v Dozier, 2006 NY Slip Op 07053 [available here]

From the other end of the "custody" spectrum comes Dozier. Unlike the defendants in Mc Clane and Wiley, Ms. Dozier was not plucked from a public street, was not subject to a frisk or search, and was not handcuffed. Rather, "[d]efendant willingly accompanied the police to the police station, she was not handcuffed, she was offered food and beverages, and she was not questioned in an accusatory fashion." (Dozier, 2006 NY Slip Op 07053.) On those facts, the Fourth Department had no trouble finding "a reasonable person innocent of any crime would not have believed that he or she was in custody, and thus warnings were not required." (Id. at __.)