Summary
In People v Knapp (57 N.Y.2d 161, 174, cert denied 462 U.S. 1106), the police — as here — used an informant to obtain uncounseled statements from defendant.
Summary of this case from People v. WestOpinion
Argued June 8, 1982
Decided October 12, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOSEPH A. MOGAVERO, JR., J.
John H. Owen, Public Defender, for appellant.
Colin E. Ingham, District Attorney, for respondent.
Incriminating statements made by defendant to the police after they had been informed that he had an attorney, as well as physical evidence thereafter seized from his automobile, must be suppressed as obtained in violation of his State constitutional right to counsel. The erroneous admission of this evidence cannot be regarded as harmless, nor can it be concluded on this record that the evidence was admissible on any theory of an emergency exception to the right to counsel rule as now advanced by the dissenters.
Linda Jill Velzy, an 18-year-old student attending the State University College of Arts and Sciences at Oneonta, was last seen alive at approximately 6:00 P.M. on Friday, December 9, 1977. She had just finished visiting several young women who were seeking another roommate to share their apartment. On leaving she told them that she would walk back to the college campus or perhaps hitch a ride. She was reported missing by her roommate the following day. An intensive search was begun and carried out as a missing person investigation. The New York State Police, the Oneonta city police and the college campus security guards joined forces, co-ordinating their efforts and establishing a single command post in the Municipal Building on Main Street in the City of Oneonta. A search was made of the surrounding countryside and woods which included the use of helicopters and bloodhounds. The police interviewed and questioned over a hundred people, including defendant.
When he was questioned defendant informed the investigating officers, Detective Angellotti of the Oneonta police and Investigator Dabreau of the State Police, of his whereabouts on the evening of December 9 and denied any knowledge of the Velzy disappearance. During the course of this conversation, at the request of the officers, defendant agreed to submit to a polygraph examination. The police thereafter from time to time continued to question defendant and communicated with his family.
Defendant at the time was under indictment returned by the November, 1977 Grand Jury in which he was charged with sodomy in the first degree and unlawful imprisonment in the first degree. He had been arraigned on these charges on November 9, 1977 and at that time had appeared with his attorney, John H. Owen, Otsego County Public Defender, although the latter had not then been formally appointed to represent him. Defendant again appeared on this indictment before the Otsego County Court on December 12, 1977 on an application to relieve the Public Defender and to permit defendant to retain counsel of his own choosing. The court granted defendant two weeks to obtain an attorney and adjourned the matter to December 28, 1977.
As a consequence of the earlier police request that defendant take a polygraph examination, he contacted attorney Owen, who advised him not to submit to the test. The police continued questioning of defendant on December 12, 13 and 15, until on December 15 or 16, attorney Owen telephoned Detective Angellotti, informed him that he had advised his client not to take the polygraph test, and directed that the police either arrest defendant or cease their harassing questioning of him.
Although direct attempts to question defendant ended in compliance with Owen's demand and were not resumed until after defendant's subsequent arrest, later that month members of the consolidated investigating team arranged to question defendant indirectly through an informer named Arthur Hitt. During the course of the missing person investigation Hitt's attorney had approached the State Police indicating that his client possessed certain information with respect to the Velzy matter. Hitt, the owner of a logging site, for whom defendant occasionally worked, faced pending felony charges. The police were told by Hitt that on Monday, December 12, defendant had asked him to tell anyone who might inquire that he was with Hitt until 8:00 P.M. on Friday, December 9, the evening of Miss Velzy's disappearance. Although defendant did not then tell Hitt why it was important for him to establish an alibi for that Friday evening, Hitt reported the incident to his own attorney. Thereafter (and after attorney Owen had expressly directed the police to cease questioning defendant about the Velzy matter), on December 21 at a conference in the chambers of the County Court Judge attended by the Judge, the prosecutor, Hitt and Hitt's attorney, it was agreed that Hitt would be permitted to plead guilty to charges not requiring incarceration and would, in fact, not be sentenced to incarceration, in exchange for his co-operation in the Velzy investigation, provided such co-operation led to the arrest of at least one person criminally responsible for Velzy's disappearance. Hitt's attorney testified that he understood the objective at the time to be "to get Knapp".
During the next 10 days, Hitt made several telephone calls to defendant which were recorded by State Police investigators. In the same period the State Police also outfitted Hitt with recording equipment for several face-to-face meetings with defendant. In only two of these more than half dozen recorded conversations was any relevant or incriminating statement made. Defendant twice repeated his request, without elaboration, that Hitt support defendant's alibi for Friday evening, December 9. In exchange for Hitt's agreement to do that, defendant agreed to support an alibi for Hitt's own pending unrelated charges.
On December 31 the case finally broke open when it was disclosed why it was that defendant wanted an alibi for December 9. It was then that defendant confirmed to Hitt that he had killed Linda Velzy. In an unrecorded conversation, defendant related that he had picked up the Velzy girl while she was hitchhiking on West Street in the City of Oneonta around 6 o'clock or a little after on December 9, that he had had a sexual encounter with her, that as they were coming back into town differences arose between them and she got all upset and jumped out of the car, that she lay in the ditch semiconscious, that he got out of the car and put her in the back seat and told her that he was going to take her to the hospital, and that instead he drove over into Delaware County where he hit her in the throat three times with his fist, killing her. He added that he wanted to move the body to Hitt's logging site, and Hitt agreed to assist.
Hitt alerted the State Police and on January 1, 1978 informed them that defendant and he were going to move the body of Linda Velzy from the place where it was then located to a grave on Hitt's logging site on Winney Hill Road. On the basis of this information the police set up a stakeout to await the arrival of defendant and Hitt with the deceased girl's body. Shortly after 6:00 P.M. defendant and Hitt arrived at the logging site, and defendant was observed dragging the frozen body to a grave which had been prepared by use of a bulldozer furnished by Hitt. The police announced their presence and thereupon seized and arrested defendant. It was the testimony of some of the police witnesses that as he was being grappled to the ground he blurted out, "I am sorry; I am sorry. I killed her. I am no good. Please shoot me."
Defendant was taken to the State Police station in Unadilla where he was given his constitutionally mandated preinterrogation warnings. He waived his right to counsel and made a full confession of his involvement in the disappearance and death of Linda Jill Velzy which was reduced to typewritten form and signed by him. Based entirely on Hitt's sworn testimony as to admissions made to him by defendant, the police obtained a warrant to search the car defendant had been driving on December 9. The search uncovered a contact lens, wood chips, cat and dog hairs, blonde human hair and Christmas decoration "glitter squares".
At trial, the lens was matched to one missing from Miss Velzy's right eye, the wood chips were shown to be similar to a chip found in her pubic hair, the animal hair was proved consistent with hair found on the interior surfaces of her clothing, the human hair was established to be consistent with her own hair, and the glitter squares were seen to be the same as those found in the sheet in which her body was partially wrapped.
The January, 1978 Otsego County Grand Jury returned an indictment charging defendant with two counts of murder in the second degree. In count one it was alleged that defendant intentionally caused Linda Velzy's death by beating her about the head and neck with his fists (Penal Law, § 125.25, subd 1), and in count two it was alleged that defendant, in circumstances evincing a depraved indifference to human life, recklessly created a grave risk of her death and caused her death by failing to transport her for medical care (Penal Law, § 125.25, subd 2).
On pretrial motions by defendant, the trial court denied suppression of the blurted-out expression of guilt and remorse made by defendant when he was apprehended at the grave site, of the two detailed confessions (the oral admissions made to Arthur Hitt before defendant's arrest and the signed typewritten confession made to the police after his arrest), and of the various items of physical evidence seized from defendant's car pursuant to the search warrant.
At trial, although none of the taped recordings of defendant's conversations with Hitt were offered in evidence, Hitt was himself permitted over objection to testify with respect to the statements made to him on December 31 in which defendant detailed his participation in the disappearance of Linda Velzy and the associated subsequent events. The prosecution was also permitted to introduce the items of physical evidence taken from defendant's car and his signed typewritten confession.
Defendant took the stand and testified that, by Hitt's own admission to him, it was Hitt rather than defendant who had had the sexual encounter and who had killed the Velzy girl, that Hitt supplied the car and drove it and also furnished the shovel, sheet and bulldozer for the reburial and that it was Hitt who took defendant to the site of the original placement of the body in Delaware County and then requested defendant's assistance in reburying the body.
At the conclusion of the trial the jury was instructed that it could find defendant guilty of either count or neither count but not both. After deliberation the jury acquitted defendant of intentional murder but convicted him of reckless murder.
On appeal, the Appellate Division rejected all but one of the several contentions advanced on defendant's behalf. As to that contention, each Judge on the panel agreed that the signed typewritten confession had been obtained in violation of defendant's State constitutional right to counsel. Concluding, however, that the evidence of defendant's guilt was so overwhelming that the written confession was merely surplusage, the majority affirmed the conviction on a harmless error analysis. One Justice dissented from this analysis.
Although we agree that only the denial of defendant's motion to suppress merits our discussion, we are compelled under settled principles of State constitutional law to conclude that violation by the police of defendant's right to counsel required suppression not only of the signed typewritten confession but also of testimony as to his earlier oral admissions made to Hitt, as well as of all physical evidence seized from his car. Only the blurted-out expression at the grave site was admissible. Because the evidence which should have been suppressed constituted the very core of the People's case, it cannot be concluded that its admission was harmless. Accordingly, defendant's conviction must be reversed and the case remitted for further proceedings on the second count of the indictment.
We find no ground to disturb the denial of suppression of the police testimony as to the statement that defendant blurted out when he was arrested; both courts below have found that it was spontaneous (cf. People v Lanahan, 55 N.Y.2d 711).
For the purpose of determining whether the admissions made by defendant to Hitt should have been suppressed it must be concluded that at the time, December 31, Hitt was acting as an agent for the police pursuant to the arrangement for that purpose made in the County Judge's chambers on December 21. It was the State Police who directed and supervised Hitt in his role as their informer, and, of course, they were chargeable with knowledge of the direction given by defendant's attorney to the Oneonta police that defendant was not to be questioned further in relation to the Velzy matter (cf. People v Garofolo, 46 N.Y.2d 592; People v Pinzon, 44 N.Y.2d 458). In employing Hitt as their agent to obtain incriminating statements from defendant who was represented by counsel, the police violated defendant's State constitutional right to counsel (cf. People v Rogers, 48 N.Y.2d 167). It follows that Hitt's testimony as to the incriminating statements made by defendant to him must be suppressed notwithstanding that defendant was not in police custody at the time the statements were made ( People v Skinner, 52 N.Y.2d 24).
In this case there is no room for a contention that the purpose of the police in their use of Hitt as an informer was to elicit evidence from defendant as to the commission of a subsequent, discrete criminal transaction (cf. People v Ferrara, 54 N.Y.2d 498; People v Middleton, 54 N.Y.2d 474). Defendant's incriminatory statements on December 31 were unrelated to any new crime. The record discloses that they were elicited entirely independent of defendant's request for an alibi; defendant was relating the details of his past crime for a purpose independent of his request for an alibi. In any event any crime of hindering prosecution had been fully committed on December 12 when defendant made his request and when that request was repeated in taped conversations, apparently prior to December 21. There was no occasion for the continued use of Hitt with respect to any such crime. There can be no doubt that on December 31, Hitt was acting as police agent to obtain evidence as to defendant's participation in Linda Velzy's disappearance.
By similar reasoning the physical evidence obtained pursuant to the search warrant issued on the basis of Hitt's testimony as to defendant's admissions to him must be suppressed (cf. Wong Sun v United States, 371 U.S. 471).
Finally, as all the Justices at the Appellate Division agreed, defendant's signed typewritten statement made after his arrest while he was in police custody, at a time when to their knowledge he was represented by counsel who had directed the termination of all questioning, should have been suppressed.
It remains only to comment briefly on the views advanced in the dissent. Whatever may be said of a missing-person-emergency exception to the right of counsel rule — an issue as to which we decline to express any opinion — it suffices for the purposes of the present appeal to observe that there has been no address to any such theory by either the People or defendant in their briefs or on oral argument. Nor is there any suggestion that this contention was considered by County Court or at the Appellate Division, and neither court made any factual determination on which such an argument could be predicated. Accordingly, it would be jurisprudentially both inappropriate and imprudent for us at this stage to base an affirmance of defendant's conviction on any such ground. If there is to be an emergency exception in right to counsel cases, its recognition should be based on full development of an evidentiary record and come after the implications and ramifications of such an exception have been explored and considered with full participation of counsel, both at nisi prius and in the Appellate Division.
Moreover, even if the missing-person-emergency rule were to be recognized, its application in this or any other individual case would necessarily depend on a preliminary factual determination, and, as stated by Judge MEYER, the present record would not permit us, as a matter of law, to make the prerequisite factual determination that the police activities with respect to defendant after December 21, 1977 were in furtherance of any emergency search for a missing person. Although the police in a co-ordinated task force initially launched an extensive missing person investigation following Linda Velzy's disappearance on December 9, the evidence now before us is not so overwhelming as to compel the conclusion that the purpose of the December 21 conference in the County Judge's chambers and the use of Hitt by the police as their agent on December 31 was in furtherance of the search for Linda and not to obtain evidence of criminal activity on the part of defendant. The lapse of time as well as the other circumstances of the arrangement with Hitt disclosed in the record give rise to no inference that the police entertained an expectation of finding Linda Velzy alive.
Nor would it be proper, in our view, to send the case back for a new hearing, the introduction of new evidence and the possible development of a new theory on which to sustain the admission of the evidence which should, on the present record, have been suppressed (cf. People v Havelka, 45 N.Y.2d 636). There is no contention that, had they chosen to do so, the People could not have offered any evidence available to them to sustain such an emergency exception at the original suppression hearing. That such a theory appears not to have occurred to anyone (until postargument deliberation in our court) provides no justification to grant "the People a second chance to succeed where once they had tried and failed" ( People v Bryant, 37 N.Y.2d 208, 211).
For the reasons stated, the order of the Appellate Division should be reversed, defendant's conviction vacated, testimony as to his oral admissions to Hitt, his signed typewritten confession, and the physical evidence seized pursuant to the search warrant suppressed, and the case remitted to Otsego County Court for further proceedings on the second count in the indictment.
Chief Judge COOKE and Judge FUCHSBERG concur with Judge JONES; Judge MEYER concurs in result in a separate opinion; Judge JASEN dissents and votes to affirm in another opinion; Judge WACHTLER dissents and votes to affirm in an additional opinion in which Judge GABRIELLI concurs.
Order reversed, etc.
Although I harbor no doubt that there is an emergency exception to the constitutional right to counsel and when next presented with the opportunity to do so will vote in favor of such an exception, no court has yet so held and the possibility that any court might, so far as the present record discloses, was never suggested at the December 21 hearing or to any of the three courts considering this case, or indeed until the conference of this court after argument. I, therefore, cannot agree with my dissenting colleagues that defendant Knapp's conviction should simply be affirmed, for to do so would be to deny him the opportunity to which due process clearly entitles him to contest whether his statement of December 31 to Hitt, improperly obtained as it otherwise clearly was ( United States v Henry, 447 U.S. 264, 274, n 11; Brewer v Williams, 430 U.S. 387; Massiah v United States, 377 U.S. 201; see Rhode Island v Innis, 446 U.S. 291, 300, n 4), was obtained in a manner within that emergency exception. There is a point beyond which the fact that a person is missing may no longer be reasonably viewed as constituting an emergency. To pose a reductio ad absurdum, the dissenters would not suggest that in a prosecution for the murder of Judge CRATER, missing now these many decades, the introduction of a statement obtained under the same circumstances as was the statement obtained from Knapp could be justified on an emergency basis.
Whether an emergency exists is a question of fact, in which the fact that a person is missing is a highly important factor. It is not, however, the only relevant factor (compare Justice BLACKMUN dissenting in Brewer v Williams, 430 U.S. 387, 439, supra, with State v Beede, 119 N.H. 620, cert den 445 U.S. 967, reh den 446 U.S. 993). To hold as a matter of law, as would the dissenters, that that fact alone justifies the deliberate, court-sponsored invasion of Knapp's right to counsel is to permit the exception to swallow the rule and to violate Knapp's right to due process in order to justify the violation of his right to counsel.
The evidence strongly suggests that Knapp is guilty of the murder of Linda Velzy. But I would rather see one guilty man go free than sanction in the interest of justifiably limiting the right to counsel an exception that will render the rule meaningless in many cases and which in this case cannot be reached without violating the due process clauses of the State and Federal Constitutions.
In my view the matter should be remitted for a further suppression hearing at which the facts concerning the basis on which the police acted could be presented by the State, upon which rests the burden of proof (cf. People v Hodge, 44 N.Y.2d 553, 557; People v Mitchell, 39 N.Y.2d 173, 180), and Knapp would be afforded the opportunity to which due process entitles him to contest those facts. Such a hearing would be permissible in view of the massive media coverage of Linda Velzy's disappearance which would provide a sufficient check on possible distortion ( People v Havelka, 45 N.Y.2d 636, 644; People v Lypka, 36 N.Y.2d 210; People v Horowitz, 21 N.Y.2d 55).
What is overlooked in footnote 4 of the dissent is that there can be no unfairness to the People in permitting Knapp to contest an issue which it was the People's burden to present.
Although I did not acquiesce in prior holdings of this court adopting the broad right of counsel rule ( People v Rogers, 48 N.Y.2d 167, 175-178; People v Marrero, 51 N.Y.2d 56, 59-61; People v Skinner, 52 N.Y.2d 24, 32-36; People v Bartolomeo, 53 N.Y.2d 225, 236), which would seem to necessitate a reversal of defendant's conviction of reckless murder, in spite of overwhelming evidence of guilt, I believe that there comes a point at which an appellate court, such as ours, must recognize that the dictates of common sense and reason must be considered in striking a balance between a suspect's fundamental right to counsel and the fundamental duty of the police to aid persons in trouble, particularly those who may be the victims of violent crimes. A rule that turns criminals free can be justified only by clear and convincing evidence that its benefit to society outweighs its cost to society. In my view, the benefits from applying an inflexible per se right of counsel rule to the particular facts and circumstances surrounding this case falls far short of meeting that test.
In my opinion, the analysis presented by Judge WACHTLER in his dissenting opinion, whether viewed as an emergency exception to the right of counsel rule or as a limitation on the further development of that right as it relates to an emergency police inquiry, recognizes the practical realities of a missing persons investigation and the inappropriateness of further applying the per se right of counsel rule enunciated in People v Skinner ( supra). Such an investigation by its very nature requires the police to act expediently in the hope of finding a person whose life may be in danger and who may be in need of immediate assistance. While it may be true that the person is missing because of the criminal acts of another, the rights of a potential defendant should not hamper an investigation directed primarily to aid the victim. ( Snyder v Massachusetts, 291 U.S. 97, 122.)
I see no reason to require a hearing on the question of whether or not an emergency existed. In my view, an emergency existed by virtue of the missing persons investigation. Thus, the scope of right to counsel in light of the emergency nature of the investigation can be addressed by this court even though it was not considered by the courts below. The very nature of a missing persons investigation, combined with the facts as found by the courts below, clearly constitutes an emergency situation.
Nor is it practical to suggest that the police should know the precise moment their investigation changes from primarily a missing persons investigation to an accusatory investigation. In fact, many such emergency investigations will in the natural course of good police work uncover criminal activity and evidence related to that activity. In recognizing a demarcation between investigatory and accusatory police work, for the purpose of applying the right to counsel rule, we would be fulfilling our obligation to locate the proper balance between competing demands for effective police protection and strict observation of a suspect's fundamental constitutional rights. However, as a policy matter, we should allow the police adequate discretion to conduct this type of emergency investigation until it is clearly established that a crime has been committed, at which point the investigation would be termed accusatory in nature and would focus only on determining responsibility for the crime.
In the insulated environment of an appellate court, which naturally deals in hindsight, it is easy to pinpoint when such a change in an investigation occurred, but I do not believe that the Constitution requires the police to make such fine distinctions during an emergency investigation oriented to locating a missing 18-year-old college student. ( People v Rogers, supra; People v Skinner, supra; People v Middleton, 54 N.Y.2d 474; Hoffa v United States, 385 U.S. 293, 310.) To do otherwise would result in the accused going free, not because the constable blundered, but because the constable lacked the foresight to ascertain the precise nature of the investigation.
It is for this reason that I believe this case is distinguishable from the prior precedents of this court which extended the constitutional right to counsel to the investigatory stages of police work. In People v Skinner ( 52 N.Y.2d 24, supra), it was ascertained that a murder had been committed and finding the person responsible was the focus of the police investigation. There were no competing concerns regarding the victim's safety or fate. Nor was there any compelling time constraint such as exists when it is thought that a person may be being held captive. Thus, I believe there is a very real practical distinction to be drawn between a disappearance investigation and the situation where the police know the precise nature of the crime and are conducting an investigation to establish a person's involvement in that already ascertained crime. I welcome the opportunity to join my dissenting colleagues in recognizing the compelling nature of those practicalities which makes this case distinguishable from prior precedents of this court. ( People v Rogers, supra; People v Skinner, supra.)
To hold otherwise would constitute yet another expansion of a person's right to counsel in a noncustodial setting during the course of an investigation. In my view, this would be an unwarranted expansion of the right to counsel which, once again, would elevate the rights of the potential defendant above the compelling interests of the State. ( People v Rogers, supra.) Furthermore, it may well have the dangerous effect of barring the police not only from investigating a crime, but also from aiding a citizen who is the victim of criminal activity.
For all of these reasons, I would affirm the order of the Appellate Division.
The police should not be prohibited from using an informant to obtain information from a person represented by counsel when the police are trying to find and possibly rescue a missing person. The rule precluding the police from questioning a person represented by counsel in order to solve a crime known to have been committed, or to gather evidence for conviction of such a crime, has not been applied, and should not be extended to hinder police officers actively engaged in attempting to provide emergency assistance to those who are or may be in danger. When a person has been reported missing under unusual circumstances the police may reasonably proceed on the assumption that the person may be in danger or in need of police assistance. It should not be for the courts to say that at a certain point, to be revealed after the event, intensive rescue efforts should cease because the police should, as a matter of law, abandon all hope of finding the missing person alive.
In this case the defendant murdered Linda Velzy, an 18-year-old college student, while he was released on bail awaiting trial on an indictment charging him with sodomy and unlawful imprisonment of another young woman. He admitted his guilt on three separate occasions: first, to an erstwhile friend, Arthur Hitt, who was assisting the police in locating the missing student; second, at the time of his arrest while attempting to dispose of his victim's body; and third, at the police station shortly after his arrest. Additional evidence of his guilt was discovered in his car pursuant to a warrant based entirely on the defendant's conversations with Hitt. The defendant made a pretrial motion to suppress the evidence claiming some unspecified violation of his constitutional rights. The trial court denied the motion and the jury found the defendant guilty of murder.
The Appellate Division held that the defendant's third confession at the station house should have been suppressed, but found the error harmless in light of the other evidence of guilt and thus affirmed the conviction.
On appeal to this court the defendant urges that all of this evidence, except the dead student's body, should be suppressed. He argues that the police should not have approached him or accepted the aid of his confidant, Arthur Hitt, to determine what if anything the defendant knew of Miss Velzy's disappearance because the police knew that the defendant had recently been indicted for abducting and sexually molesting another young woman in the area, and therefore knew that on that pending charge he had an attorney, who in fact had, at the defendant's request, directed the police to discontinue their efforts to obtain information from the defendant concerning the missing person. It is contended by the defendant, and the majority, that our prior cases construing the State constitutional right to counsel mandate suppression of the evidence under these circumstances.
In my view the Appellate Division was correct and the conviction should be affirmed. A careful reading of the facts and applicable law shows that the defendant's argument calls for an extension and, in my view, an unwarranted extension of the right to counsel into an area in which it has never been held to apply, and should not be held to be applicable.
The most important fact in the case is that Linda Velzy disappeared on December 9, 1977 and was not found until January 1, 1978. When informed of her mysterious disappearance on December 10 the Oneonta police opened a "file 5" which, it was noted at the hearing, is the official designation for a missing persons investigation. They also enlisted the aid of the State Police and the campus security force and established a special command post to co-ordinate their efforts to find Miss Velzy.
The search continued throughout December. Large numbers of police officers searched the surrounding woods, helicopters were employed, as well as bloodhounds, and apparently even spiritualists. The police also interviewed over a hundred people including the defendant. Thus accepting Hitt's offer to determine what, if anything, the defendant might know about Miss Velzy's disappearance and present whereabouts was just one of the many leads pursued by the police.
All of the defendant's statements to Hitt were made during this first stage of the investigation, while the police were attempting to locate and possibly rescue a missing person. The only statements the police obtained from the defendant after it was determined that a crime had been committed in connection with the young woman's disappearance were the second and third confessions.
Although the police naturally considered it possible that she might be dead, they had no evidence supporting that theory until the day before the defendant's arrest when the defendant informed Hitt that he had killed her. The corpus delicti of the crime was not established until January 1, 1978 when the defendant was arrested dragging her body to a newly dug grave. Prior to that time the police did not know whether she was dead or alive, sick or well, voluntarily absent or criminally abducted and thus were conducting a missing persons investigation, not a homicide case.
A missing persons investigation is not a criminal investigation, as the majority opinion assumes. This is not just a semantic difference. It is a constitutionally recognized distinction (see, e.g., People v Mitchell, 39 N.Y.2d 173), and a point of the utmost significance in this case.
The primary function of the police is to protect the public by preventing crime and rendering emergency assistance to those whose lives or safety may be in jeopardy. After a crime has been committed the police assume their secondary role of determining who is responsible and gathering evidence for prosecution.
The State constitutional rule prohibiting the police from questioning a person represented by counsel in the absence of counsel, limits the investigative techniques available to the police (see, e.g., People v Middleton, 54 N.Y.2d 474). In some cases this merely delays the investigation, in others it may completely frustrate it. Thus far this type of restriction has been imposed on the police only in cases where they are investigating a crime known to have been committed in order to solve the crime or obtain evidence which would insure a conviction (see, e.g., People v Hobson, 39 N.Y.2d 479 [robbery reported]; People v Settles, 46 N.Y.2d 154 [police officer killed]; People v Singer, 44 N.Y.2d 241 [young woman found murdered]; People v Garofolo, 46 N.Y.2d 592 [young woman murdered]; People v Rogers, 48 N.Y.2d 167 [robbery reported]). Significantly, in People v Skinner ( 52 N.Y.2d 24), which the majority believes to be dispositive in this case, the police found the victim's dead body on June 25, 1975 and obtained the damaging admissions from the defendant on March 10, 1977 nearly two years later. Thus that was also a case in which the victim had been found and any information the police might obtain from the defendant could only serve to aid them in their secondary role of establishing criminal responsibility for a crime known to have been committed some time ago.
In short, the critical distinguishing factor between our prior cases and the one now before us is this: In none of our prior cases was there any possibility that the life or safety of an innocent third party, perhaps in imminent danger, might depend upon the success of the police investigation. Limiting the power of the police to investigate a crime known to have been completed, by precluding them from obtaining information from a person who has retained an attorney, may result in the guilty party going free. Imposing the same restrictions on the police when they are attempting to rescue a person potentially in danger may, and in many cases undoubtedly will, have the added consequence of contributing to the death or injury of the victim.
Well-founded judicial reluctance to interfere with the emergency functions of the police has served as the basis for recognizing limitations on other constitutional rights.
Thus, for instance, the Miranda rule does not require the police to pause and advise an individual of his rights when the officers are merely investigating a suspicious and possibly criminal incident but have not yet determined whether there has been a "definite" and "concluded" crime ( People v Huffman, 41 N.Y.2d 29; People v Greer, 42 N.Y.2d 170). The "emergency doctrine" applied in Fourth Amendment cases is the most well-developed example. It was adopted by this court in People v Mitchell ( 39 N.Y.2d 173, supra) where the police had conducted a "room-by-room" search of a hotel to locate a missing maid, who was eventually found dead in the defendant's room. The police concededly had no warrant and no probable cause to believe the defendant had committed a crime. However, we noted (at p 178) that the "maid's disappearance was a mystery and it was not known whether she had been stricken with some illness, suffered an accident or possibly fallen victim to a crime. Each of these three alternatives was possible". In upholding the police officers' actions we held that the police have the right to enter and investigate in an emergency inherent in the nature of their duties as peace officers and noted (at p 180) that "`[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would greatly endanger their lives or the lives of others' ( Warden v Hayden, 387 U.S. 294, 298-299)."
Recognizing that the police should not be bound by the unusual restrictions imposed by this State's constitutional right to counsel when they are conducting a missing persons investigation is consistent with constitutional principles generally and is justified by the demands of that type of investigation. The need to make wide-ranging inquiries is no less important than the need to make sweeping search when the police are attempting to locate a missing person. Delay or frustration of the investigation can be equally fatal for the missing person whether it is occasioned by unrealistic restrictions on the right to search or on the right to inquire. Indeed, the broadened power of the police to search for a missing person is of little value if the authorities do not have the corresponding power to obtain leads by making inquiry of all segments of the community. When a person has disappeared under unusual circumstances, law-abiding citizens or those without attorneys are not the only ones, or even the most likely, to have useful information.
As is the case with other constitutional rights, there are limits to the rule prohibiting the police from obtaining statements from a person who has retained or requested the assistance of counsel ( People v Middleton, 54 N.Y.2d 474, supra; People v Ferrara, 54 N.Y.2d 498). In the Middleton case where the defendant, arrested for a traffic infraction, offered the arresting officer a $10,000 bribe after invoking the right to counsel, we concluded that further inquiry by the police as to the reason for the bribe was not prohibited, noting that a contrary holding would (at p 482) "unrealistically * * * limit investigatory procedures relating to bribe offers". It is even more unrealistic, if not completely irresponsible, to require police officers attempting to locate a missing person, potentially in danger, to abandon a promising lead simply because it would require the use of an informer to obtain information from a person represented by counsel.
Contrary to the majority's holding, the principle recognized in the Middleton and Ferrara cases provides an additional basis for admitting the defendant's conversations with Hitt. When the defendant requested Hitt to give false information to the police he committed the crime of criminal solicitation (see Penal Law, §§ 100.00- 100.15), because he was asking Hitt to commit the crime of hindering prosecution (Penal Law, §§ 205.50 205.65), known at common law as an accomplice after the fact (La Fave Scott, Criminal Law, § 66, p 523). Statements made in furtherance of a criminal act are not the type of statements entitled to protection under the State Constitution ( People v Middleton, supra; People v Ferrara, supra).
Although as the majority notes this new crime was complete when the defendant made the request, it does not follow that there was no need for the police to utilize Hitt to further investigate the matter. This argument overlooks the fact that evidence of the crime would not be complete until it could be shown that some earlier crime had been committed which the defendant was attempting to cover up (see Penal Law, §§ 205.50 205.65, 100.00- 100.15). Indeed the degree or precise nature of the defendant's offense would depend upon the nature of the earlier crime (Penal Law, §§ 100.00- 100.15 penal). Nor is it realistic to focus on the intent of the police in such an investigation. A police officer investigating to determine whether a defendant's request for a false alibi is an attempt to cover up some earlier crime, cannot do so without also intending to uncover the earlier crime.
The case now before us is an appropriate one to recognize that a defendant cannot employ the right to counsel to frustrate or delay police officers searching for a missing person. Although we now know, as the defendant did from the beginning, that the missing student had been killed or fatally injured on December 9, this was not known by the police on December 21 when they formally accepted Hitt's offer to attempt to learn if the defendant knew anything about her disappearance. All the authorities knew at that point was that, when last seen, Miss Velzy had indicated that she would probably walk or hitchhike back to the campus; that the defendant had recently been arrested for abducting and sexually assaulting another hitchhiking coed and that he had asked his friend Hitt for a false alibi for the evening of December 9. This, of course, was a lead worth following but it obviously did not provide solid proof or even probable cause to believe that the defendant was responsible for Miss Velzy's disappearance or that she was dead. Missing persons, even those who have been abducted, are often found alive long after their disappearance, as we know from the Patti Hearst case, and others of lesser notoriety. The defendant's attempt to obtain an alibi for the night of the disappearance was nothing more than a suspicious circumstance. But even if the police had firmer grounds to suspect him, his involvement in Miss Velzy's disappearance would not necessarily establish a homicide or rule out other possibilities. Significantly the pending indictment charged the defendant with sodomy and unlawful imprisonment, suggesting that at some point the girl that he had abducted in that case must have been released alive. We do not know how much time elapsed in that case but it is interesting to note that on the trip to Binghamton the defendant had informed Hitt that "he wanted to pick up another girl and take her off in a cabin or something back in the woods out of the way and keep her there for a couple of weeks and then just do away with her".
The example chosen by Judge MEYER in his concurring opinion is not apt or helpful. In this case we are concerned with a potential victim missing approximately 20 days, and not with an historical curiosity which occurred over 50 years ago.
The record is not deficient, nor is there any need to remit for additional findings, simply because it does not reveal the subjective intent of the officers involved in the investigation or has lead some to speculate that they were only intent on obtaining evidence against the defendant. With three police forces and so many individuals actively involved in the search over several weeks, it is unlikely that we will find unanimity or any persistently held beliefs. With the limited information available to the police any individual belief would be little more than a hunch. The only practical approach for the courts is to recognize that when a person has disappeared under mysterious circumstances, the police may reasonably proceed on the assumption that he or she may be in danger or in need of police assistance. It does not matter whether all, most, or only some, of the officers assigned to the investigation are fully committed to that belief, whether their supervisors share it, or whether a Judge asked to assist in the case entertains the belief. Until the person has been found, or conclusive evidence of death has been presented there is no reason for the police to abandon all hope of rescue. Neither should the courts say, with hindsight, that the police should have conducted the investigation as if no hope remained. Thus the record as it stands is sufficient and supports our view that the emergency doctrine is applicable to this case.
The subjective intent of police officers is relevant in Fourth Amendment cases where the emergency doctrine is employed to physically intrude upon the defendant's person or property, without a warrant, and, indeed without probable cause (see, e.g., People v Mitchell, 39 N.Y.2d 173). It has not been considered relevant in cases involving emergencies where the police conduct is less intrusive. For instance, when the police merely converse with the defendant in order to determine the nature of suspicious, possibly dangerous and presumably criminal activity, the police officer's "primary purpose" in making the inquiry has played no part in determining whether it was proper to dispense with Miranda warnings (see, e.g., People v Huffman, 41 N.Y.2d 29; People v Greer, 42 N.Y.2d 170). The same rule should apply in this case where the police were merely attempting to determine, by conversations with the defendant and through their agent Hitt, whether the defendant possessed information concerning Miss Velzy's mysterious disappearance.
The view expressed in Judge MEYER'S concurring opinion, that it would be unfair to the defendant to recognize the emergency limitation on his rights at this stage is, at least, ironic. First, it should be emphasized that the defendant never submitted any facts in support of his motion to suppress. He simply claimed, without elaboration, that his statements should be suppressed because they "were involuntary and otherwise obtained in violation of the defendant's rights under the United States Constitution and otherwise". Thus he presented no factual basis for suppression or factual issues entitling him to a hearing and was only afforded a hearing because the People consented to grant him one. Secondly, at the suppression hearing which extends through two volumes of the record, the defendant made no legal argument whatsoever in support of his conclusory contention that his rights had been violated, made no attempt to identify for the court or disclose to his adversary the legal basis for the relief he sought, and therefore never afforded the People an opportunity to respond at the hearing to the arguments he has presented on this appeal. As a general rule the defendant's failure to present the issue in the trial court would preclude the defendant from raising it on this appeal. However once again, the defendant has been granted a special dispensation because the right to counsel issue happens to be one of those rare points that need not be preserved.
In short, the defendant has been afforded more of a hearing, both in this court and the trial court, than he would be generally entitled to under the law. The only unfairness is to the People because the conviction is being set aside for their "failure" to respond to an argument the defendant never made.
The issue presented by the facts in this case cannot be ignored or avoided because of any perceived failure on the part of the People to urge that we adopt an emergency exception to the State constitutional right to counsel. Strict requirements with respect to the sufficiency of the record and appellate arguments of counsel have not previously deterred us from reaching the merits when the State's constitutional right to counsel is involved. In any event the defendant's contention that his right has been violated necessarily involves consideration of the scope and limits of the right. A defendant's constitutional rights cannot be extended by default. If the People had completely neglected to submit a brief, or had been precluded for failure to present a timely brief (22 N.Y.CRR 500.7 [b]), we would not be bound to accept the defendant's arguments simply because they were unopposed. Indeed even if the People had expressly conceded the defendant's point, that would not "relieve us from the performance of our judicial function * * * [or] require us to adopt the proposal urged upon us" ( People v Berrios, 28 N.Y.2d 361, 366-367; see, also, People v Lewis, 26 N.Y.2d 547, 550; People v McGowen, 42 N.Y.2d 905, 907; Sibron v New York, 392 U.S. 40, 58; Young v United States, 315 U.S. 257, 258).
When the record shows that this right has been violated we have consistently granted relief even though the defendant has failed to properly preserve the issue in the trial court (see, e.g., People v Samuels, 49 N.Y.2d 218, 221; People v Charleston, 54 N.Y.2d 622) or has neglected to argue the point on appeal ( People v Carmine A., 53 N.Y.2d 816). Similarly, we should deny relief if the record shows that there has been no violation even though the People may not perceive that the defendant's arguments would extend the right into areas where it would not be applicable.
Despite the fact that I write in dissent for three Judges, including myself, it is plain from Judge MEYER'S concurring opinion that at least four Judges of this court are now prepared to recognize the emergency doctrine in principle.
In sum, when the police are investigating a report that a person has disappeared under mysterious circumstances, and has not yet been found, the State constitutional right to counsel should not prohibit the police from approaching any member of the community who may have useful information, including those who have a record of prior convictions or pending charges or who have retained counsel to immunize themselves from police inquiries. A missing persons investigation is not a homicide case when no body has been found and there was no reason why the police in this case should have been bound to conduct the investigation as if Miss Velzy's life or safety did not depend upon the success of their efforts.
The defendant's conviction should be affirmed.