Thursday, February 12, 2009

Reversal for Un-Mirandized Questioning

In People v. Phillip Flowers, the defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (subdivision 12) while the police were executing a search warrant upon his home. Without any Miranda warnings, the arresting officer asked the defendant how much money cash he had in his pockets. The defendant replied that he had $600. The Fourth Department rejected the government's argument that the officer made the inquiry for "routine processing purposes". The court held that the question was designed to elicit incriminating information. It held in relevant part:
"we note that "the People may not rely on the pedigree exception if the question[], though facially appropriate, [is] likely to elicit incriminating admissions because of the circumstances of the particular case" (Rodney, 85 NY2d at 293; see Pennsylvania v Muniz, 496 US 582, 602 n 14). Here, the narcotics officer testified at the suppression hearing that he questioned defendant for the purpose of completing a form that was required in the event of "an arrest for narcotics" (emphasis added). Cash indisputably plays a significant role as circumstantial evidence in narcotics cases (see e.g. People v Sykes, 47 AD3d 501, lv denied 10 NY3d 817; People v Gadsden, 192 AD2d 1103, lv denied 82 NY2d 718; People v Orta, 184 AD2d 1052, 1054-1055), however, and we conclude that "an objective observer with the same knowledge concerning the suspect as the police had would conclude that the [question of the narcotics officer concerning the ownership of cash found in the kitchen during the execution of the search warrant] was reasonably likely to elicit [an incriminating] response" (People v Ferro, 63 NY2d 316, 319, cert denied 472 US 1007; see People v Marrow, 301 AD2d 673, 675-676)."