The People, Appellant,v.Eugene Polhill, Respondent.BriefN.Y.September 18, 2014 To be argued by ALLEGRA GLASHAUSSER AND LEILA HULL (25 minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, - against – EUGENE POLHILL, Defendant- Respondent. BRIEF FOR DEFENDANT-RESPONDENT LYNN W. L. FAHEY ALLEGRA GLASHAUSSER LEILA HULL Attorneys for Defendant-Respondent 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 January 17, 2014 ii INDEX TABLE OF AUTHORITIES .................................................................................. iii PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED ................................................................................... 2 SUMMARY OF ARGUMENT ................................................................................ 2 STATEMENT OF FACTS ....................................................................................... 7 Introduction ...................................................................................................... 7 The Suppression Hearing ................................................................................ 9 A. The Police Stopped Mr. Polhill, who was Dressed in a Camouflage Jacket and Jeans Based on a Report that Two Men Wearing Dark Clothing and Jeans had Committed a Robbery ................................................................................................. 9 B. Mr. Polhill’s Pre-Arraignment Interrogation in Queens Central Booking .................................................................................. 11 C. Suppression Argument and Decision .............................................. 14 The Trial .......................................................................................................... 15 The Appeal..................................................................................................... 16 iii ARGUMENT ............................................................................................................ 21 POINT I THE APPELLATE DIVISION CORRECTLY HELD THAT MR. POLHILL WAS NEVER EFFECTIVELY INFORMED OF HIS MIRANDA RIGHTS, THAT THE PRE-MIRANDA SCRIPT SYSTEMATICALLY UNDERMINED HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO COUNSEL, AND THAT HIS STATEMENT THEREFORE HAD TO BE SUPPRESSED .......................................... 21 A. Miranda v. Arizona Protects the Fundamental Constitutional Privilege Against Self-Incrimination ................................................ 22 B. The Language and Procedure of Miranda Must Effectively Convey a Defendant’s Rights ............................................................ 26 C. Even Broader Miranda Protection is Provided Under the New York State Constitution ............................................................ 31 D. Before Mr. Polhill Heard the Miranda Warnings, He Heard a Script that Undercut and Contradicted the Warnings, Preventing Any Effective Conveyance of his Rights ..................... 33 POINT II THE PEOPLE’S ARGUMENT THAT THIS COURT SHOULD USE THE OLD TOTALITY-OF-THE- CIRCUMSTANCES TEST IS CONTRARY TO LONGSTANDING PRECEDENT, SIDESTEPS THE THRESHOLD INQUIRY OF WHETHER THE MIRANDA WARNINGS WERE EFFECTIVELY CONVEYED, AND IGNORES THE MISLEADING LANGUAGE OF THE SCRIPT ........................................................................................................... 39 A. The Totality-of-the-Circumstances Test Does Not Apply Because the People Have Not Demonstrated Effective Conveyance of Miranda ...................................................................... 40 iv B. The Court Should Reject the People’s Conclusory Assertion that the Pre-Miranda Script was Not Misleading ............................ 44 C. In Urging that the Intentional Deception their Systematic Program Entails is Irrelevant, the People Rely on the Argument Rejected by the Supreme Court in Missouri v. Seibert .................................................................................................... 47 D. The People’s Approach Would Upend the Public Policy Balance Struck by Miranda ................................................................. 49 POINT III THE APPELLATE DIVISION PROPERLY HELD THAT THE COMPLAINANT’S GENERAL AND VAGUE DESCRIPTION OF TWO BLACK MEN OF DIFFERENT HEIGHTS IN “DARK CLOTHING,” ONE WITH A HOOD, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION TO STOP MR. POLHILL, WHO WAS DRESSED IN A HOODED GREEN AND GRAY CAMOUFLAGE JACKET ......................................................................................................... 53 A. The Reasonable Suspicion Issue is Beyond the Court’s Scope of Review ................................................................................. 54 B. The Legal Standard to Justify a “Stop” Under the Fourth Amendment......................................................................................... 55 C. The Appellate Division Correctly Held that the Police Lacked Reasonable Suspicion to Stop Mr. Polhill .......................... 57 CONCLUSION ........................................................................................................ 63 v TABLE OF AUTHORITIES CASES Berghuis v. Thompkins, 560 U.S. 370 (2010) ..................................................................... 4, 24 Brown v. Illinois, 422 U.S. 590 (1975) ................................................................................... 62 Brown v. Walker, 161 U.S. 591 (1896) .................................................................................. 25 California v. Prysock, 453 U.S. 355 (1981) ............................................................................ 27 Colorado v. Connelly, 479 U.S. 157 (1986) ......................................................................... 4, 23 Colorado v. Spring, 479 U.S. 564 (1987) ................................................................................ 42 Commonwealth v. Cheek, 597 N.E.2d 1029 (Mass. 1992) .................................................... 56 Dickerson v. United States, 530 U.S. 428 (2000) ............................... 4, 23, 24, 25, 33, 41, 49 Duckworth v. Eagan, 492 U.S. 195 (1989) ............................................... 4, 27, 28, 29, 36, 43 Dunaway v. New York, 442 U.S. 200 (1979) ........................................................................ 62 Fare v. Michael C., 442 U.S. 707 (1979) ........................................................ 4, 23, 26, 35, 42 Florida v. Powell, 559 U.S. 50 (2010) ................................................. 4, 27, 28, 29, 36, 43, 50 Goodson v. City of Corpus Christi, 202 F.3d 730 (5th Cir. 2000) .......................................... 56 Miranda v. Arizona, 384 U.S. 436 (1966) ...................................................................... passim Missouri v. Seibert, 542 U.S. 600 (2004) ......................................................................... passim Moran v. Burbine, 475 U.S. 412 (1986) .......................................................... 4, 23, 24, 27, 42 Ornelas v. United States, 517 U.S. 690 (1996) ....................................................................... 55 People v. Allen, 9 N.Y.3d 1013 (2008) .................................................................................. 54 People v. Anderson, 42 N.Y.2d 35 (1977) .............................................................................. 42 vi People v. Bethea, 67 N.Y.2d 364 (1986) ........................................................................... 31, 32 People v. Brannon, 16 N.Y.3d 596 (2011)......................................................... 6, 7, 55, 57, 59 People v. Brooks, 266 A.D.2d 864 (4th Dep’t 1999) ...................................................... 56, 58 People v. Brown, 215 A.D.2d 333 (1st Dep’t 1995) ............................................................. 56 People v. Cantor, 36 N.Y.2d 106 (1975) ................................................................................ 55 People v. Carrasquillo, 54 N.Y.2d 248 (1981) ........................................................................ 58 People v. Chapple, 38 N.Y.2d 112 (1975) ................................................. 4, 17, 32, 37, 39, 41 People v. Choy, 173 A.D.2d 883 (2d Dep’t 1991) .................................................... 20, 56, 58 People v. Dawkins, 163 A.D.2d 322 (2d Dep’t 1990) .......................................................... 20 People v. DeBour, 40 N.Y.2d 210 (1976) ............................................................................... 55 People v. Dubinsky, 289 A.D.2d 415 (2d Dep’t 2001) ...................................... 20, 55, 58, 60 People v. Dunbar, 104 A.D.3d 198 (2d Dep’t 2013) ..................................................... passim People v. Evan, 65 N.Y.2d 629 (1985) .................................................................................. 61 People v. Foster, 85 N.Y.2d 1012 (1995) ............................................................................... 54 People v. Francois, 14 N.Y.3d 732 (2010) .............................................................................. 54 People v. Guilford, 21 N.Y.3d 205 (2013) .......................................................................... 4, 31 People v. Hollman, 79 N.Y.2d 181 (1992) ............................................................................. 55 People v. Keene, 148 A.D.2d 977 (4th Dep’t 1989) .............................................................. 42 People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dep’t 2013) .............................................. 8, 17 People v. Madera, 82 N.Y.2d 775 (1993) ........................................................................... 7, 54 People v. Moore, 6 N.Y.3d 496 (2006) ..................................................................................... 6 vii People v. Paulman, 5 N.Y.3d 122 (2005) ........................................... 5, 17, 32, 37, 39, 43, 48 People v. Perez, 37 Misc.3d 272 (Queens Sup. Ct. 2012) .............................................. 38, 41 People v. Polhill, 102 A.D.3d 988 (2d Dep’t 2013) .......................................................... 8, 17 People v. Prochilo, 41 N.Y.2d 759 (1977) ............................................................................... 61 People v. Quinones, 12 N.Y.3d 116 (2009) ............................................................................ 54 People v. Reyes, 90 N.Y.2d 916 (1997) .................................................................................. 54 People v. Riddick, 269 A.D.2d 471 (2d Dep’t 2000) ......................................... 20, 55, 58, 60 People v. Selby, 220 A.D.2d 544 (2d Dep’t 1995) ................................................................ 61 People v. Silvestry, 11 N.Y.3d 902 (2009) .............................................................................. 54 People v. Steward, 41 N.Y.2d 65 (1976) ................................................................ 7, 20, 55, 57 People v. Thomas, 300 A.D.2d 416 (2d Dep’t 2003) ................................................ 55, 58, 60 People v. Vasquez, 90 N.Y.2d 972 (1997) ............................................................................. 52 People v. Watkins, 40 A.D.3d 290 (1st Dep’t 2007) ............................................................ 61 People v. White, 10 N.Y.3d 286 (2008) ................................................................................. 31 People v. Williams, 19 N.Y.3d 891 (2012) ....................................................................... 53, 54 People v. Williams, 62 N.Y.2d 285 (1982) ............................................................................. 42 Rhode Island v. Innis, 446 U.S. 291 (1980) ............................................................................ 27 Terry v. Ohio, 392 U.S. 1 (1968) ............................................................................................ 55 United States v. Brown, 448 F.3d 239 (3d Cir. 2006)............................................................ 56 United States v. Clarkson, 551 F.3d 1196 (10th Cir. 2009) .................................................. 56 United States v. Cortez, 449 U.S. 411 (1981) ............................................................... 6, 55, 57 viii United States v. Foley, 735 F.2d 45 (2d Cir. 1984) ............................................................... 38 United States v. Perez, 733 F.2d 1026 (2d Cir. 1984) ........................................................... 38 Wong Sun v. United States, 371 U.S. 471 (1963) ................................................................... 62 CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I §§ 6, 12 ....................................................................................3, 4, 22, 53 U.S. Const. Amends. IV, V, XIV ............................................................................. 3, 22, 53 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - EUGENE POLHILL, Defendant-Respondent. -------------------------------------------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, granted May 20, 2013, the People appeal from an order of the Appellate Division, Second Department, dated January 30, 2013, reversing a judgment rendered on January 27, 2010, after a jury trial, convicting Eugene Polhill of attempted second- degree robbery [P.L. § 160.10(1)] and imposing a sentence of 7 years’ imprisonment with 5 years of post-release supervision (Grosso, J., at hearing; Buchter, J., at trial and sentencing). On June 25, 2013, this Court granted Mr. Polhill poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. Mr. Polhill is presently out on bail. 2 The Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review the issues raised. Whether the Queens Central Booking pre- interrogation protocol complied with Miranda and the federal and state constitutions and whether statements made pursuant to the program should be suppressed was preserved by defense counsel’s motion to suppress the statements because of the pre- Miranda script and the court’s ruling declining to do so (A. 13, 115).1 Likewise, the issue of whether police lacked reasonable suspicion to stop Mr. Polhill was preserved by defense counsel’s motion raising this specific issue and the court’s suppression ruling (A. 103-06). QUESTIONS PRESENTED 1. Did the Appellate Division correctly hold that Mr. Polhill was never effectively informed of his Miranda rights, that the pre-Miranda script systematically undermined his privilege against self-incrimination and right to counsel, and that his statement therefore had to be suppressed? 2. Is the People’s argument that this Court should use the old totality-of-the-circumstances test contrary to longstanding precedent, and does it sidestep the threshold inquiry of whether the Miranda warnings were effectively conveyed and ignore the misleading language of the script? 3. Did the Appellate Division properly hold that the complainant’s general and vague description of two black men of different heights in “dark clothing,” one with a hood, did not provide the police with reasonable suspicion to stop Mr. Polhill, who was dressed in a hooded, green and gray camouflage jacket? 1 Citations preceded by “A” refer to the pages of the appendix. 3 SUMMARY OF ARGUMENT (A) The United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), created a bright-line per se rule: no custodial interrogation may proceed until Miranda warnings are effectively and adequately conveyed and the defendant knowingly, intelligently, and voluntarily waives his rights. The now-common Miranda warnings – the right to remain silent, that anything said can be used against the defendant, the right to an attorney, and that one will be provided if the defendant cannot afford one – must be clearly explained regardless of the defendant’s experience or knowledge. Id. at 468-96. This Miranda procedure protects the Fifth Amendment privilege against self-incrimination, which prevents an individual from being compelled to talk to interrogators and is “the essential mainstay of our adversary system.” Miranda, 384 U.S. at 442-43, 460 (citation omitted); see U.S. Const. Amends. V, XIV; N.Y. Const. Art. I § 6. If effective Miranda warnings are not administered, any statement made by the defendant must be suppressed. Since Miranda, the Supreme Court has consistently held that interrogators must follow the Miranda procedure, explicitly rejecting attempts to revive the old totality-of- the-circumstances test, under which courts evaluated statements based on an individualized assessment of voluntariness. Dickerson v. United States, 530 U.S. 428, 4 442-44 (2000). The Court has repeatedly affirmed that Miranda struck the correct balance between the needs of law enforcement and the rights of suspects. Moran v. Burbine, 475 U.S. 412, 424, (1986); Fare v. Michael C., 442 U.S. 707, 718 (1979); Miranda, 384 U.S. at 478-80. “[M]ere recitation of the litany” of the warnings does not necessarily suffice and interrogators may not manipulate the Miranda procedure to undermine its efficacy and thereby induce defendants to speak. Missouri v. Seibert, 542 U.S. 600, 612 (2004). Deviations and omissions from the language of the warnings are constitutional only if a “reasonable defendant” would still have understood his rights and the consequences of foregoing them. See Florida v. Powell, 559 U.S. 50, 60-63 (2010); Duckworth v. Eagan, 492 U.S. 195, 203-04 (1989). The People bear a “heavy” burden to demonstrate compliance with Miranda. Berghuis v. Thompkins, 560 U.S. 370, 383 (2010); Colorado v. Connelly, 479 U.S. 157, 167 (1986); Miranda, 384 U.S. at 475. This Court has given the Miranda rights an even broader application under the New York State Constitution than under federal law. Indeed, it recognized early on that the reading of Miranda warnings to defendants only in the middle of an interrogation undermined the effectiveness of the warnings and it therefore prohibited such tactics. See People v. Guilford, 21 N.Y.3d 205, 209 (2013); People v. Chapple, 38 N.Y.2d 112 (1975); N.Y. Const. Art. I § 6. Additionally, under the state constitution, just as under federal law, “more [is] required” to justify the admission of statements 5 than the “mere fact that warnings were uttered.” People v. Paulman, 5 N.Y.3d 122, 130 (2005). In this and the companion cases, before the defendants were read their Miranda rights, they were warned that remaining silent or invoking their right to counsel would come at a cost: they would be giving up a valuable opportunity to speak with the district attorneys, have their cases investigated, or assert alibi defenses. They were first instructed to “give as much information” as they could, before hearing that they had a right to remain silent. They were told “this” was their “opportunity to tell” “[their] story” and have their cases investigated, implying that the district attorneys would help them and contradicting the later warning that anything they said would be used against them. They were told misleadingly that they would “have to” talk to the district attorneys “now” and that this was their “only opportunity” to do so, when in reality they could more safely approach the district attorneys through counsel, after having counsel assigned at arraignment only minutes later. Because the pre-Miranda script, which the district attorneys read not only to these three defendants, but to thousands of other indigent defendants, contradicted and undermined the Miranda warnings, the defendants were not given an effective explanation of their rights and the Appellate Division was correct to suppress their statements. The People now assert that this Court should return to the old totality-of-the- circumstances test, advocating for an individualized assessment of the voluntariness of 6 each statement regardless of the effectiveness of the warnings. In making this argument, they sidestep the threshold requirement that Miranda warnings be effectively conveyed, assuming that the mere fact that Miranda warnings were read rendered them effective. They ignore the misleading language of the pre-Miranda script, claiming it has no bearing on the effectiveness of the Miranda warnings. And, marshalling the concerns of the Seibert dissent, they claim that both the use of the Queens Central Booking Interrogation Program in 14,000 cases and its intentional design to elicit statements are irrelevant. Because these arguments are contrary to well- settled federal and state law, this Court should reject them and uphold the Appellate Division’s decision. (B) To justify an investigative stop, the People must show that the police possessed reasonable suspicion to detain a citizen. See People v. Moore, 6 N.Y.3d 496, 498 (2006) (a person’s “later conduct cannot validate an encounter that was not justified at its inception”). The information possessed by the police must include “specific and articulable facts” that lead to the conclusion that the suspected citizen has committed, is committing, or is about to commit a crime. People v. Brannon, 16 N.Y.3d 596, 604 (2011) (emphasis added); see also United States v. Cortez, 449 U.S. 411, 417-18 (1981) (“particularized and objective basis” to stop an individual suspect). Here, the complainant told the police that two black men of different heights dressed in “dark clothing,” one with a hood, had robbed him before fleeing into a 7 subway station. This general description did not give the police reasonable suspicion to stop Mr. Polhill, who was wearing a hooded, green and gray camouflage jacket and was seen with another man leaving a subway station two stops away from the crime scene. See Brannon, 16 N.Y.3d at 604; see also People v. Steward, 41 N.Y.2d 65, 69 (1976). Contrary to the People’s contention, the Appellate Division’s review of the record was complete and its decision correctly applied the above law to the facts here and ruled that the police did not have reasonable suspicion to stop Mr. Polhill. This Court should, therefore, affirm the Appellate Division’s decision as a mixed-question of law and fact. People v. Madera, 82 N.Y.2d 775, 777 (1993). STATEMENT OF FACTS Introduction On the night of April 6, 2009, the complainant told police that two black men dressed in “dark clothing,” one taller than the other, who was wearing a hood, had attempted to rob him on the street. The police learned that two men matching that general description had entered a nearby subway station. The assailants had been described in a radio run as wearing black jackets and black and blue jeans. About 10 minutes later, a transit officer stopped defendant-respondent Eugene Polhill, who was alone and wearing a hooded, green and gray camouflage jacket and jeans, because the officer had seen him and another man leaving a subway station 20 blocks from the 8 scene of the incident. The complainant identified Mr. Polhill at a show-up. He was then arrested and eventually taken to Queens Central Booking. In 2007, the Queens County District Attorney began a pre-arraignment interrogation program in which thousands of uncounseled defendants were questioned by district attorneys in Central Booking immediately prior to their arraignments. Eugene Polhill was one of those thousands. Jermaine Dunbar and Collin Lloyd-Douglas, the defendants in the companion cases, were two more. As in the companion cases, members of the Queens District Attorney’s office read Mr. Polhill a set script before reading him his Miranda rights. The script informed Mr. Polhill that this was his “opportunity” to speak to the district attorneys and to “tell” his “story.” He was instructed that, if he wanted the district attorneys to investigate, he “ha[d] to tell” them “now.” He was advised to “give” “as much information” as he could and told that this was his “only opportunity” to do so before going to court. After these instructions, the interrogators read Mr. Polhill his Miranda rights. He made a statement that the lower court judge refused to suppress and that the People introduced into evidence at trial. He was convicted of attempted second-degree robbery. On appeal, the Appellate Division joined this case with those of Jermaine Dunbar and Collin Lloyd-Douglas and found that the statements in each case should have been suppressed because the pre-Miranda script prevented the effective conveyance of the Miranda warnings. See People v. Dunbar, 104 A.D.3d 198, 204 (2d 9 Dep’t 2013); People v. Lloyd-Douglas, 102 A.D.3d 986, 987 (2d Dep’t 2013); People v. Polhill, 102 A.D.3d 988, 989 (2d Dep’t 2013). In Mr. Polhill’s appeal, the Appellate Division also suppressed the identification evidence, holding that the police did not have reasonable suspicion to detain him to conduct a show-up because the suspect descriptions were insufficient. The Suppression Hearing A. The Police Stopped Mr. Polhill Dressed in a Camouflage Jacket and Jeans Based on a Report That Two Men Wearing Dark Clothing and Jeans Had Committed a Robbery. At approximately 9:55 p.m. on April 6, 2009, Officer Reinaldo Alvarez received a radio report about a robbery in progress at Parsons Boulevard and Hillside Avenue just outside the Parsons subway station (A. 47, 58, 71-72). The radio report described the assailants as “two male blacks wearing black jackets,” one in “black jeans” and the other in “blue jeans” (A. 99) (emphasis added). At the scene, the complainant told Alvarez, however, that the two men were “wearing dark clothing, one taller than the other,” and the shorter “one had a hood” (A. 72-73, 84-86, 98-99, 102) (emphasis added). Alvarez transmitted that description over the radio (A. 85). Neither the radio communication nor the complainant described either assailant as wearing a camouflage jacket (A. 84-85, 87). At about the same time, transit officers Kevin Bonner and his partner, who were at the 179th Street Station, 20 blocks and two stops away from the Parsons 10 station on the F-line, heard a radio report of the robbery; the report did not include a description (A. 45-46, 57-58, 89). Five minutes later they arrived at the robbery scene and Officer Bonner “overheard someone,” possibly another police officer, say that they were looking for a black man “wearing a camouflage jacket” (A. 47, 58). Inside the Parsons station, a token booth clerk told Officer Alvarez that “two gentlemen fitting” the complainant’s “description . . . [had] received two summonses” earlier that night for drinking in public and disorderly conduct (A. 75). They “went downstairs into the subway system” and “[t]here [was] a possibility they could be on the next stop” or the “next two stops” (A. 75). There was no testimony at the hearing whether the suspects went to a platform at the Parsons station accessible to trains heading in a particular direction. Officers Bonner and Wisniewski drove back to 179th Street where they saw Eugene Polhill, who was wearing a hooded gray and green camouflage jacket and blue jeans, standing alone in front of a liquor store on Hillside Avenue near 180th Street (A. 48-49, 58-59, 61, 77-78, 100-02). Officer Bonner stopped Mr. Polhill because he recognized him from a 30- second encounter at the 179th Street Station earlier that evening, before Officer Bonner received notice of the robbery (A. 49-50, 53). Mr. Polhill was wearing a camouflage jacket and was leaving the train station with another black man (A. 49-50, 53-55). Officer Bonner could not describe the second man’s “physical attributes” or “clothing,” except that he appeared “slightly taller” than Mr. Polhill (A. 52-53). The men “appeared to be startled” for a “split second” and then began to “crack[ ] jokes” 11 about another officer (A. 49, 55-56). Neither man turned around, changed direction or otherwise attempted to avoid the attention of the officers (A. 56). The whole incident was “a little weird,” and it “triggered” Officer Bonner’s decision to stop Mr. Polhill, who was calm and cooperative (A. 32-33, 49, 59-60, 59, 65). The complainant identified Mr. Polhill when he and Officer Alvarez drove up (A. 78-80. 90). Officer Alvarez arrested Mr. Polhill and found two summonses issued at Parsons Boulevard and Hillside Avenue in Mr. Polhill’s pocket (A. 80-82, 88, 94). The officers did not read Mr. Polhill his Miranda rights (A. 69, 93). B. Mr. Polhill’s Pre-Arraignment Interrogation in Queens Central Booking Nearly 20 hours after Mr. Polhill’s arrest, Sergeant Mary Picone took him from Central Booking and brought him to an interrogation room equipped with a video camera (A. 38). The recording of the interrogation admitted at the hearing began with Sgt. Picone and Assistant District Attorney Kristin Fraser introducing themselves and informing Mr. Polhill of the charges against him (DVD, 5:39-40). While Sgt. Picone was reading the charges, Mr. Polhill interjected, saying “attempted” but then stopped speaking as Sgt. Picone continued to read the charges (DVD, 5:39). Sgt. Picone next informed Mr. Polhill that, “in a few minutes,” she would read him his Miranda rights, and that “after that” he would “be given the opportunity to explain what [he] did and what happened at that date, time and place” (DVD, 5:40). Picone then instructed him as follows: 12 If you have an alibi, give me as much information as you can, including the names of any people who you were with. If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story. If there’s something we need to investigate about this incident, you have to tell us now so that we can look into it. Even if you’ve spoken to someone else, you do not have to talk to us. This will be your only opportunity to speak with us before you go to court on these charges (Polhill: DVD, 5:40) (emphasis added). 2 Mr. Polhill told the district attorneys that he was present in the area of the robbery by himself and that he had gotten into a fight with the “guy” who “supposedly” was “robbed” (DVD, 5:41-42). Mr. Polhill explained that he punched the other man, but he was punched as well and thrown to the ground, adding that there were surveillance “cameras around there, I’m sure” (DVD, 5:42-43; 5:52). Sgt. Picone did not respond to this comment, instead replying that they had “heard he was with someone else” (DVD, 5:43). Mr. Polhill denied that he was with another man and noted that the people present during the fight could “verify” what he was saying, 2 Sgt. Picone, who participated in the interrogations in the companion cases as well, explained at Mr. Lloyd-Douglas’s Huntley hearing that she had conducted 75% of the 3500 pre-arraignment interviews then-completed under the program and that the procedure in Mr. Lloyd-Douglas’s interrogation was the “exact [one she] always used” (Lloyd-Douglas: A. 53, 64-66). The script in Mr. Polhill’s case was virtually identical to the one used in the companion cases, except that Mr. Lloyd- Douglas was told that this was his opportunity to talk before his “arraignment on these charges” instead of “before you go to court on these charges” (Lloyd-Douglas DVD, 12:11). 13 but he did not know their names (DVD, 5:52). Mr. Polhill described the store, but Sgt. Picone again pressed him for names and repeatedly asked for information about his “companion” (DVD, 5:54). When Mr. Polhill stated that he had no need to rob anyone because he had his own money, which the police took from him when he was arrested, Sgt. Picone ignored him and changed the subject, asking Mr. Polhill “why” did he “go down into the subway” (DVD, 5:45). Sgt. Picone confronted Mr. Polhill with a summons he had received earlier that evening, and later asked Mr. Polhill how it was that he could recall details about his fight with the complainant, but had difficulty remembering receiving a summons (DVD, 5:50). Mr. Polhill also asked numerous times what charges he was facing and said repeatedly that he wanted to press charges against the other man (DVD, 5:44, 5:52; 5:57-58). Sgt. Picone told him he could “talk to his lawyer” about pressing charges (DVD, 5:49).3 3 In the companion cases, Mr. Lloyd-Douglas and Mr. Dunbar also made statements that the People introduced at their respective trials. While Assistant District Attorney Tina Grillo read Mr. Dunbar his charges for robbery and weapon possession, he interjected, saying “so” and “possession,” but then stopped speaking after an inaudible comment from Sgt. Picone (Dunbar DVD, 12:04). After being read the script and his rights, Mr. Dunbar said that he met a man named Pete, who told him “about robbing this place” (Dunbar DVD, 12:05-08). Mr. Dunbar’s job was “to scare” the cashier by showing her a fake gun Pete provided (Dunbar DVD, 12:07-08). When Mr. Dunbar said that he “wanted to work around all this” by providing information, Sgt. Picone said that was “a whole other story” and “something you’re going to discuss with your attorney” (Dunbar DVD, 12:08-09). Mr. Dunbar responded by asking how the interrogators could help him: “so, hold on, there’s no way you can help me?” (Dunbar DVD, 12:09). 14 C. Suppression Argument and Decision In his omnibus motion, defense counsel argued for suppression of Mr. Polhill’s statement on the ground that he was “not properly advised of his Constitutional rights prior to the taking of those statements” (A. 13). The People contended that “[h]e was clearly read his Miranda rights” and “the warnings were adequately given and he complied and . . . [he] continued to give a statement” (A. 109). The court denied suppression of the statement finding that Miranda warnings were “fully given,” acknowledged, and waived (A. 113, A. 115). Toward the end of the interrogation, Mr. Dunbar asked, “after I finish talking to y’all, who am I going to talk to, the DA?” (Dunbar DVD, 12:11). Sgt. Picone told him he would be talking to his lawyer and that she and A.D.A. Grillo worked for the District Attorney (Dunbar DVD, 12:11). Mr. Dunbar then asked them to investigate things “outside of this,” but they said they could not (Dunbar DVD, 12:11). The interrogators asked Mr. Lloyd-Douglas, who was charged with attempted murder, what happened, but throughout the interrogation challenged the veracity of his justification account (See Lloyd-Douglas Defendant-Respondent Brief). When Mr. Lloyd-Douglas suggested that the interrogators look at pictures of his house so they could understand where he was and what had happened, Assistant District Attorney Ryan Clark dismissed him, saying, “We do have pictures, but we’ll get to that later” (Lloyd-Douglas DVD, 12:17). As Mr. Lloyd-Douglas described how the complainant had injured herself as she tried to hit him with a hammer, A.D.A. Clark told him that his explanation did not “make any sense” (Lloyd- Douglas DVD, 12:27), later saying: This is what I see. I see you blaming everybody except [you] for your involvement. You didn’t do anything wrong. . . . You never went and talked to the police. . . . You’re saying it somehow happened by accident and you didn’t do it. . . . It doesn’t. Make. Any. Sense (Lloyd-Douglas DVD, 12:30-31). A.D.A. Clark concluded that Mr. Lloyd-Douglas was “not being completely honest” and that “anyone” would think he was telling “a story” (Lloyd-Douglas DVD, 12:31-32). 15 Defense counsel also contended that the “the identification” and the “statements” should be suppressed because they were “tainted” by the unlawful detention and arrest (A. 106). He argued that the complainant’s vague and general description did not provide the police with reasonable suspicion to detain Mr. Polhill, who was not engaged in “any wrongdoing” (A. 103-04). The hearing court denied suppression of the statement, finding that the Miranda warnings were “fully given,” acknowledged, and waived (A. 113, 115). In addressing the remainder of counsel’s motion, the court did not rely on any “statement concerning” a “camouflage jacket” because Officer Bonner could not recall where this information came from (A. 110-11, 113). It denied the motion, ruling that the complainant’s description gave Officer Bonner reasonable suspicion to stop Mr. Polhill because his clothing was “dark in appearance” (A.104, 110-15). The Trial The People played the tape of Mr. Polhill’s interrogation (A. 411-40). The complainant, Mohammed Mumin, testified that two “giants,” one of whom appeared to be 30 years old, attacked and attempted to rob him during a hectic 45-second encounter near the entrance of the Parsons and Hillside Station at around 9:55 p.m. on April 6, 2009 (A. 309-21, 354-67, 388). Mumin claimed that the 30-year-old assailant was Mr. Polhill, who in reality was 50 years old, appeared to be in his late 16 40’s, and was the same height as Mumin, between 5’7” and 5’8” tall (A. 387-39, 438- 39, 460-61). Monica Goodlett was standing three storefronts away and testified that, while she had seen Officer Javan Fasulo issue Mr. Polhill a police summons earlier that evening, she never saw Polhill or anyone else interact with Mumin during the time she was standing nearby (A. 555-60, 581-83, 588-91, 603). The jury convicted Mr. Polhill of attempted second-degree robbery and the court imposed a sentence of 7 years’ imprisonment and 5 years of post-release supervision (A. 709-10, 740). The Appeal On appeal, Mr. Polhill argued, inter alia, that statements made pursuant to the Queens Central Booking Pre-Arraignment Interrogation program should be suppressed because the pre-Miranda script read by members of the District Attorney’s Office systematically undermined the Miranda procedure and frustrated the possibility of a knowing, intelligent, and voluntary waiver of his rights. Mr. Polhill also argued that the police lacked reasonable suspicion to stop him because his green and gray camouflage jacket did not match the general and vague description the complainant gave the police of two men, one taller than the other, dressed in “dark clothing,” and one of the men had a hood. 17 The People responded, inter alia, that the timing of the pre-Miranda script was irrelevant, that its content was not misleading, and that Mr. Polhill’s waiver of Miranda was voluntary. Additionally, they argued that the Queens Central Booking interrogation program was designed to procure exculpatory information and, therefore, was good public policy. They also argued that the complainant’s description, combined with other facts, elevated the police’s knowledge to reasonable suspicion. The Appellate Division, Second Department, heard Mr. Polhill’s appeal together with those of Jermaine Dunbar and Collin Lloyd-Douglas. On January 30, 2013, a unanimous panel reversed the convictions of all three men, finding that their statements should have been suppressed because none of them “received a clear and unequivocal advisement of [their] rights.” People v. Dunbar, 104 A.D.3d 198 (2d Dep’t 2013); People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dep’t 2013); People v. Polhill, 102 A.D.3d 988 (2d Dep’t 2013). The court found that the pre-Miranda script read by the district attorneys’ interrogators prior to the Miranda warnings “serve[d] to confuse, or at worst, mislead, suspects as to the nature of their rights and the consequences of waiving them.” Dunbar, 104 A.D.3d at 211. Quoting extensively from federal and state case law, the court explained the “general principle that Miranda requires effective means to apprise suspects of their constitutional rights and the consequences of waiving those rights.” Id. at 209 (citing Seibert, 542 U.S. at 611-12, Paulman, 5 N.Y.3d at 130, and Chapple, 38 N.Y.2d at 115). Defendants “cannot knowingly and 18 intelligently waive their rights if they are not effectively advised as to what those rights are.” Id. at 210. In the three cases before the court, when the Miranda warnings were combined with the pre-Miranda script, the “message conveyed” was “muddled and ambiguous.” Id. at 208. The court analyzed in detail what the pre-Miranda script would have conveyed to a reasonable individual. Its message was that “invoking [any rights] [would] bear adverse, and irrevocable consequences.” Id. at 208. It “suggest[ed] a sense of immediacy and finality which impair[ed] suspects’ reflective consideration of their rights and the consequences of a waiver.” Id. It implied that the prosecutor would not investigate the defendants’ versions of the events if they declined to speak, but would do so if they spoke, “essentially suggest[ing] that anything they sa[id] [would] also be used to help them.” Id. Because the script “add[ed] information and suggestion to the Miranda warnings[,] which prevent[ed] them from effectively conveying to suspects their rights,” these cases were different from cases involving minor deviations from the precise language of Miranda. Dunbar, 104 A.D.3d at 207. The timing of the reading of the Miranda rights was also important to the court’s analysis. Individuals were “systematically interviewed just prior to arraignment,” “immediately before those individuals’ indelible right to counsel would attach.” Dunbar, 104 A.D.3d at 200. The defendants were advised of their rights only “after being told that this is their ‘opportunity,’ and then ‘only opportunity,’ to essentially, refute what the prosecutor has been told by other individuals, to correct 19 any misperceptions or falsehoods, and to try to help themselves.” Id. at 207. Rejecting the People’s arguments, the court explained that this Court’s continuous interrogation cases were not limited to their precise facts, but instead reaffirmed the principle “clearly set forth in the Miranda decision” that rights must be effectively conveyed. Id. at 209. The court also found that the use of the pre-Miranda script raised concerns similar to those in Missouri v. Seibert, 542 U.S. 600 (2004), and questioned why the script was read before Miranda if not to elicit statements the People would not otherwise have obtained. Dunbar, 104 A.D.3d at 213. The People’s purported goal of obtaining exculpatory information to help the innocent was, moreover, “inconsistent” with their argument that the script “d[id] not convey” that speaking would benefit the defendants. Id. The court also explained that exactly the same justification of obtaining exculpatory information had been rejected by the Miranda Court. Id. at 213- 14. Addressing the People’s argument that the case should be analyzed under the old totality-of-the-circumstances test, the court explained that “Miranda established a bright-line rule separate and apart from the question of voluntariness” and that the Supreme Court had concluded that the “‘traditional totality-of-the-circumstances’ test was insufficient to adequately protect an individual’s Fifth Amendment privilege in the context of custodial interrogations due to the compulsion inherent in the custodial environment.” 104 A.D.3d at 205, 212. Because Mr. Polhill, like Mr. Lloyd-Douglas 20 and Mr. Dunbar, was never effectively apprised of his rights, the People did not meet their “heavy burden,” and the court did not need to reach arguments involving whether, under the totality of the circumstances, the statements were otherwise involuntary. Id. at 204-05. As with Mr. Dunbar and Mr. Lloyd-Douglas, the court reversed Mr. Polhill’s conviction, suppressed his statement, and remanded his case for a new trial. In Mr. Polhill’s case, the Appellate Division also suppressed the “identification evidence,” finding that the police “lacked reasonable suspicion to stop and detain” him (A. 3). The court found that while the radio run described “two black men wearing black jackets,” one in blue and the other in black jeans, the complainant “merely described” two men of different heights in “dark clothing,’” one with a hood (A. 3) (emphasis added). Noting that Mr. Polhill, “who was dressed in a dark gray and dark green camouflage jacket and standing alone, outside a liquor store, 20 blocks away from the crime scene” “did not match the description broadcast on the radio,” the court held that the complainant’s description was “too vague and general to supply reasonable suspicion to stop” Mr. Polhill (A.3 [citing People v. Stewart, 41 N.Y.2d 65, 69 (1976); People v. Dubinsky, 289 A.D.2d 415, 416 (2d Dep’t 2001); People v. Riddick, 269 A.D.2d 471 (2d Dep’t 2000); People v. Choy, 173 A.D.2d 883 (2d Dep’t 1991); People v. Dawkins, 163 A.D.2d 322 (2d Dep’t 1990)]). The court addressed the People’s argument that there were “additional factors” giving the police reasonable 21 suspicion and ruled that “other facts identified by the People” did not “supply reasonable suspicion to stop” Mr. Polhill (A. 3). ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY HELD THAT MR. POLHILL WAS NEVER EFFECTIVELY INFORMED OF HIS MIRANDA RIGHTS, THAT THE PRE-MIRANDA SCRIPT SYSTEMATICALLY UNDERMINED HIS PRIVILEGE AGAINST SELF- INCRIMINATION AND RIGHT TO COUNSEL, AND THAT HIS STATEMENT THEREFORE HAD TO BE SUPPRESSED. Before Mr. Polhill was told that he had the right to remain silent, he was told to “give [the prosecutors] as much information as you can.” Before he was told that anything he said could be used against him, he was told, “this is your opportunity to tell us your story” and that, if he wanted an investigation, he would “have to” “tell” the district attorneys “now.” Before he was told he had a right to counsel and that, if he could not afford one, one would be appointed, he was told that this was his “only opportunity” to talk to the district attorneys before going to court. In short, before he was given the constitutionally required Miranda warnings, he was given information contradicting those warnings – information that implied that it was in his best interest to speak to the district attorney immediately, that anything he said could be used to help him, and that if he asked for a lawyer he would lose a valuable opportunity to talk to members of the District Attorney’s Office. 22 This pre-Miranda script used with Mr. Polhill, the defendants in the companion cases, and thousands of other suspects in Queens County, was effectively the anti- Miranda. It was a set of instructions contradictory to Miranda itself, that frustrated the effective conveyance of the Miranda rights, and violated Mr. Polhill’s privilege against self-incrimination and right to counsel under the federal and state constitutions. U.S. Const. Amends. V, XIV; N.Y. Const. Art. I § 6. A. Miranda v. Arizona Protects the Fundamental Constitutional Privilege Against Self-Incrimination. Forty-eight years ago, the United States Supreme Court held that an individual “must be adequately and effectively apprised of his rights” prior to any custodial interrogation to protect his constitutional Fifth Amendment privilege against self- incrimination. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966); U.S. Const. Amends. V, XIV. The now-familiar Miranda rule requires that interrogators inform the defendant in “clear and unequivocal terms” of his right to remain silent. Miranda, 384 U.S. at 467-68. They must make him “aware” of the “consequences of forgoing” that right by explaining that anything he says may be used against him. Id. at 469. To assure that his ability to remain silent is “unfettered,” they must explain that he has the right to the presence of an attorney. Id. at 469-70. Finally, so that his right to an attorney is not “hollow,” they must clarify that an attorney will be provided if he cannot afford one. Id. at 472-73. These four warnings are an “absolute prerequisite to 23 interrogation.” Id. at 471-72. If effective warnings are not provided, any statement given by the defendant is inadmissible at trial. Id. at 491-99. Miranda created a bright-line rule that changed the way courts evaluated statements obtained by interrogation. Prior to the Miranda decision, courts looked at every confession individually for voluntariness, using a totality-of-the-circumstances test to determine whether the defendant’s “will was overborne.” Dickerson v. United States, 530 U.S. 428, 433-34 (2000). Miranda, however, created “concrete constitutional” guidelines, benefiting both defendants and the State by making clear exactly what was required of interrogators. Id. at 435; accord Moran v. Burbine, 475 U.S. 412, 425-26 (1986); Fare v. Michael C., 442 U.S. 707, 718 (1979) (describing Miranda’s “specificity” as its “virtue”). Now, after Miranda, any time the prosecution seeks to use statements gained from custodial interrogation, it must show that the interrogators clearly and effectively warned the defendant of his rights before questioning. Miranda, 384 U.S. at 472-73. The prosecution bears a “heavy burden” to show compliance with the Miranda procedure by “at least the preponderance of the evidence.” Missouri v. Seibert, 542 U.S. 600, at 608 n.1 (2004); Colorado v. Connelly, 479 U.S. 157, 167, 182 (1986); Miranda, 384 U.S. at 475. To meet this heavy burden, the prosecution must demonstrate two things. First, it must show that interrogators provided the defendant an “effective and express explanation” of his rights to remain silent and to assigned counsel. Miranda, 384 U.S. at 467-69, 472-73. Second, it must show that the defendant “knowingly,” 24 “intelligently,” and “voluntarily” waived those rights, meaning that the waiver must have been made with a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (citing Moran, 475 U.S. at 421); Miranda, 384 U.S. at 469. Any personal knowledge or experience of the defendant is irrelevant at this stage. Miranda, 384 U.S. at 468-69. This is because the Miranda procedure protects the rights to remain silent and to counsel not only by notifying a defendant of his rights, Berghuis, 560 U.S. at 383, but also by informing him that the interrogators intend to honor them. Miranda, 384 U.S. at 468. Even the savviest defendant will not know whether his interrogators will allow him to remain silent or will provide an attorney until they tell him so. Therefore, the Miranda rights must be adequately conveyed to every defendant, regardless of background. Miranda, 384 U.S. at 468-69, 471-72. Only if the prosecution meets its “heavy” two-pronged Miranda burden does the burden shift to the defendant, who may argue that, under the totality of the circumstances, his statement was nevertheless involuntary. See Dickerson, 530 U.S. at 434, 444 (“exclud[ing] confessions” under due process is a separate inquiry from Miranda). In other words, the “totality” issue arises only once the prosecution has demonstrated that clear and effective Miranda warnings were provided and that the defendant’s waiver was knowing, intelligent, and voluntary. Id. If the prosecution does not meet these two conditions, the burden never shifts to the defendant, and the 25 court has no occasion to apply the totality-of-the-circumstances test. Id. at 435; Miranda, 384 U.S. at 478-79, 491-98. Since Miranda was decided, its warnings have become “embedded in routine [ ] practice” and “part of our national culture.” Dickerson, 530 U.S. at 443. The Supreme Court has declined every opportunity to return to the old totality-of-the- circumstances test of voluntariness or to allow the government to meet its burden without demonstrating compliance with the Miranda procedure. In Dickerson, the Court explicitly rejected a congressional attempt to “revive” the old totality-of-the- circumstances test, holding that Miranda is “constitutionally based” and reaffirming that it governs the admissibility of statements in federal and state courts. Dickerson, 530 U.S. at 432. And, in Seibert, the Court rebuffed law enforcement’s unilateral attempt to sidestep Miranda with a new police protocol, explaining that “[s]trategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute.” Seibert, 542 U.S. at 617. The Supreme Court has repeatedly reaffirmed the importance of Miranda because the Miranda procedure safeguards the most fundamental of values “firmly embedded” in our justice system – the privilege against self-incrimination – and preserves the prized distinction between adversarial and inquisitorial justice. Miranda, 384 U.S. at 442-43, 460 (quoting Brown v. Walker, 161 U.S. 591, 596-97 [1896]). At the core of the American judicial system is the fundamental principle that justice is not 26 done “by obtaining a proper result by irregular or improper means.” Miranda, 384 U.S. at 447 (citation omitted). The Court explained that the accusatory system of justice “demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his mouth.” Id. at 460 (citations omitted). Intertwined with the privilege against self-incrimination is the right to counsel during interrogation, which is “indispensable” to protecting the Fifth Amendment privilege. Miranda, 384 U.S. at 469-70. This is because lawyers have a “unique ability to protect” a client’s Fifth Amendment rights and, therefore, occupy a “critical position” in the criminal justice system. Fare, 442 U.S. at 719 (distinguishing a lawyer’s unique role from that of a parole officer who is “not in a position to advise the accused as to his legal rights”). Only counsel can provide the single-minded advice to a defendant that is “enmeshed in the adversary process.” Id. at 721-23. In addition to protecting the defendant’s privilege against self-incrimination, the presence of counsel can provide benefits to law enforcement by “guarantee[ing] that the accused gives a fully accurate statement” and “mitigat[ing] the dangers of untrustworthiness.” Miranda, 384 U.S. at 470. B. The Language and Procedure of Miranda Must Effectively Convey a Defendant’s Rights. Under Miranda, the consequence of an interrogator failing to convey some or all of the four warnings is suppression of any statement obtained. Despite the clarity 27 of Miranda, however, it did not dictate the exact language interrogators must use to convey a defendant’s rights. Florida v. Powell, 559 U.S. 50, 60 (2010); accord California v. Prysock, 453 U.S. 355, 360 (1981); Rhode Island v. Innis, 446 U.S. 291, 297 (1980). In the decades since Miranda was decided, the Supreme Court has grappled with cases addressing deviations from Miranda’s language and procedure and has set limitations on law enforcement’s efforts to deliberately undermine the effective conveyance of the warnings. In evaluating deviations and additions to Miranda’s language and procedure, the Supreme Court has consistently held that a statement is admissible only if it is made with “full awareness and comprehension of all the information Miranda requires.” Moran, 475 U.S. at 424; accord Powell, 559 U.S. at 60. In Florida v. Powell and Duckworth v. Eagan, the Supreme Court addressed warnings that deviated from the precise language of Miranda, holding them constitutionally acceptable if they “reasonably convey[ ] to a suspect his rights.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989); accord Powell, 559 U.S. at 60. In Powell, the defendant was told he had the “right to talk to a lawyer before answering any [ ] questions” and could invoke that right “at any time during the interview,” while in Duckworth, the defendant was told that a lawyer would be appointed “if and when you go to court,” but was also told he could talk to a lawyer “before” any questions and could “stop answering at any time” and speak to his lawyer. Powell, 559 U.S. at 55; Duckworth, 492 U.S. at 204-05. 28 The Court found that those right to counsel warnings “communicated [ ] the essential message” of Miranda because a “reasonable suspect” “would likely assume” that he had a right to an attorney throughout the interrogation. Powell, 559 U.S. at 62- 63; Duckworth, 492 U.S. at 204-05. Although the warnings were not the “clearest possible formulation” of Miranda’s right to counsel, in context, they “reasonably” conveyed the message. Powell, 559 U.S. at 63; accord Duckworth, 492 U.S. at 204-05. Notably, in neither case did the Court find evidence that the State purposefully attempted to undercut the defendant’s Miranda rights; on the contrary, it explained that it was “desirable police practice and in law enforcement’s own interest to state warnings with maximum clarity.” Powell, 559 U.S. at 64; see also Duckworth, 492 U.S. at 203 (the warnings are not necessarily inadequate if an officer in the field “inadvertently depart[s] from routine practice”). The Supreme Court has made clear that Miranda must be effectively conveyed in its procedure as well as its language. In Seibert, the Court dealt with a “new challenge” to Miranda, striking down as unconstitutional a protocol in which police elicited un-warned confessions from defendants, then provided Miranda warnings and elicited the confessions again, intending to use the post-Miranda confession against the defendant since the unwarned one was clearly inadmissible. Seibert, 542 U.S. at 609 (plurality opinion). The Court held that the protocol did not comply with Miranda because it was “obvious[ly]” designed “to get a confession the suspect would not make if he understood his rights.” Id. at 613. The prosecution’s heavy burden to show 29 that the defendant’s rights were effectively and adequately conveyed was not met merely by a “talismanic” showing that Miranda was recited in full. Id. In fact, it would be “absurd to think that mere recitation of [Miranda warnings] suffices” in every circumstance. Id. Like Duckworth before it and Powell afterward, the Seibert plurality analyzed departures from Miranda’s required procedure by focusing on what a “reasonable person” would have understood. It found that warnings given only after a confession were “likely to mislead” and that, rather than proper enlightenment, the “more likely reaction on a suspect’s part” would be “perplexity” and “bewilderment.” Seibert, 542 U.S. at 613-14, 617; see also Powell, 559 U.S. at 61-63; Duckworth, 492 U.S. at 204. What made Seibert different from Powell and Duckworth was its emphasis on procedure. The interrogators gave complete warnings, but they “render[ed]” them “ineffective by waiting for a particularly opportune time to give them,” using a “strategy adapted to undermine the Miranda warnings.” Seibert, 542 U.S. at 611, 616. Because this tactic “effectively threaten[ed] to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted,” and there was no “reasonab[le] support” for the proposition that “the warnings given could have served their purpose,” the statements were inadmissible. Id. at 617. Justice Kennedy, concurring in the judgment and providing the deciding vote, wrote a separate opinion explaining that the Seibert protocol was unconstitutional because of its nefarious purpose: it was used in a “calculated way to undermine the 30 Miranda warning” and was “designed to circumvent” Miranda and “obscure[ ] its meaning.” Seibert, 542 U.S. at 618, 622 (Kennedy, J., concurring). It was this “deliberate violation” of Miranda and the “intentional misrepresentation” of its protections that made the protocol in Seibert constitutionally different from a good faith error. Id. at 620-21. Justice Kennedy explained that the warnings were “withheld to obscure both the practical and legal significance of the admonition when finally given.” Id. at 620. He described the technique used in Seibert as “distort[ing]” the meaning of Miranda, and explained that the Miranda procedure would be “frustrated” if police were allowed to “undermine its meaning and effect.” Id. at 621. There was simply “too high a risk” that the defendant would not understand his rights. Id. Writing in dissent, the four justices whose views on Miranda were rejected by the plurality and Justice Kennedy criticized consideration of the “psychological” effect of the protocol and whether the violation was “calculated,” which could “untether the analysis from the facts knowable to” the defendant. Seibert, 542 U.S. at 624, 629 (O’Connor, J., dissenting). The dissenters complained that “[t]houghts kept inside a police officer’s head cannot affect [the] experience [of the suspect],” and that someone who “experienced exactly the same interrogation as Seibert, save for a difference in the undivulged, subjective intent of the interrogating officer when he failed to give Miranda warnings would not experience the interrogation any differently.” Id. at 625. They found it “unattractive” to focus on the “police officer’s 31 subjective intent,” even though Seibert presented an “uncommonly straightforward circumstance of an officer openly admitting that the violation was intentional.” Id. at 625-26. The plurality and Justice Kennedy unequivocally rejected the dissenters’ critique of their analysis. The clear import of Powell, Duckworth, and Seibert is that interrogators must effectively convey Miranda rights so that a reasonable suspect would understand them. They cannot provide less information than Miranda requires, nor can they intentionally undermine the meaning of Miranda by manipulating the manner or timing of the warnings. C. Even Broader Miranda Protection is Provided Under the New York State Constitution. This Court has not only embraced the Miranda rule, but also adopted a broader formulation of Miranda under the state constitution than it has under the federal one. People v. Bethea, 67 N.Y.2d 364, 366, 368 (1986) (warnings administered after interrogation began were unconstitutional under state law); see also People v. Guilford, 21 N.Y.3d 205, 209 (2013) (Bethea reflects that the New York state constitution requires a more “precise showing” that Miranda is adhered to than the federal constitution in the context of continuous interrogation); People v. White, 10 N.Y.3d 286, 293 (2008) (Pigott, J., dissenting) (“New York Constitution grants broader protection than the Fifth Amendment of the United States Constitution in cases involving successive 32 interrogations where a Mirandized statement is preceded by an improper, un- Mirandized admission”); accord People v. Paulman, 5 N.Y.3d 122, 130 (2005). This Court was also a pioneer in prohibiting protocols that undercut Miranda. It held in People v. Chapple, 38 N.Y.2d 112 (1975), decided 30 years before Seibert, that the police decision to Mirandize a suspect in the midst of an interrogation invalidated the suspect’s Miranda waiver. It explained that, for warnings to be effective, they “must precede [ ] questioning,” emphasizing that “later is too late.” Id. at 115; see also Paulman, 5 N.Y.3d at 130, 133 (reaffirming that continuous interrogation and question-first procedures provide “inadequate assurance” that Miranda warnings are effectively conveyed); Bethea, 67 N.Y.2d at 368-69 (endorsing Chapple as a state constitutional decision despite a contrary Supreme Court case). Under this Court’s analysis, Miranda warnings cannot safeguard individuals’ rights if they are given in a context that obscures their meaning. This Court in Paulman acknowledged Seibert’s prohibition of “impermissible end run[s]” around Miranda or “intentionally” undermining the defendant’s rights. Paulman, 5 N.Y.3d at 133 & nn.5-6. And, the Court has made clear that under the state constitution, “more [is] required” to justify the admission of statements than the “mere fact that warnings were uttered.” Paulman, 5 N.Y.3d at 130. 33 D. Before Mr. Polhill Heard the Miranda Warnings, He Heard a Script that Undercut and Contradicted the Warnings, Preventing Any Effective Conveyance of his Rights. Under the Queens County District Attorney’s Central Booking Interrogation program, before Mr. Polhill and thousands of other suspects were read their Miranda rights, they were given four different and contrary instructions. These additional instructions were designed to neutralize and effectively eviscerate the Miranda warnings. In giving them, the prosecutors intentionally misrepresented Mr. Polhill’s rights and, just as in Seibert, the instructions were part of a calculated program to elicit uncounseled custodial statements. As the Appellate Division correctly held, because the pre-Miranda script undermined the meaning of the Miranda warnings, those warnings were never clearly and effectively conveyed, and a reasonable defendant could not have knowingly, intelligently, and voluntarily waived them. See Dunbar, 104 A.D.3d at 207, 210, 214. Because this case was about the Miranda procedure itself, the Appellate Division correctly rejected the old totality-of-the-circumstances test. Dunbar, 104 A.D.3d at 204-05, 210-11; see Seibert, 542 U.S. at 617 n.8 (“Because we find the warnings were inadequate, there is no need to assess the actual voluntariness of the statement”); Dickerson, 530 U.S. at 442 (“traditional totality-of-the-circumstances test” is inadequate to safeguard Miranda rights). Instead, as in Powell, Duckworth, and Seibert, the Appellate Division correctly analyzed this case under Miranda and held the prosecution to its “heavy burden” to show that it followed the correct procedure. 34 As the Appellate Division held, the deception in the language of the pre- Miranda script was substantial. Sgt. Picone told Mr. Polhill he would “be given an opportunity to explain what [he] did and what happened.” Then, prior to reading the Miranda rights, she said: If you have an alibi, give me as much information as you can, including the names of any people who you were with. If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story. If there’s something we need to investigate about this incident, you have to tell us now so that we can look into it. Even if you’ve spoken to someone else, you do not have to talk to us. This will be your only opportunity to speak with us before you go to court on these charges (DVD, 5:40) (emphasis added). This pre-Miranda script was carefully calibrated to undercut and neutralize each of the four Miranda warnings that followed. Unlike Duckworth and Powell, in which interrogators deviated slightly, and apparently inadvertently, from one of the four Miranda warnings, here, all four were deliberately undermined: (1) The instructions to “give us as much information as you can,” “this is your opportunity to tell us your story,” and that you “have to” “tell us now,” directly contradicted the warning that Mr. Polhill had the right to remain silent (emphasis added). (2) In explaining that speaking would facilitate an investigation, the district attorneys implied that his words would be used to help him, thus contradicting the heart of the critical warning that 35 anything he said would be used against him. (3) The claim that the pre-arraignment interrogation was his “only opportunity” falsely suggested that requesting counsel would hurt him because, by doing so, he would forego forever the chance to speak with the district attorneys. To the contrary, only with counsel could he safely approach the People without incriminating himself. (4) Finally, by suggesting there would be adverse consequences in asking for appointed counsel, the script took particular advantage of indigent defendants. Contrary to the language of the script, Mr. Polhill did not “have to” tell the district attorneys anything “now,” or ever. See Miranda, 384 U.S. at 442-43, 460 (the privilege against self-incrimination explicitly prohibits an individual from being compelled to talk to interrogators). What the interrogators knew, and Mr. Polhill and the other defendants surely did not, was that if they invoked their rights, they would be immediately appointed counsel who could facilitate the same investigation or exoneration without the risk of self-incrimination they faced as uncounseled defendants. See id., 384 U.S. at 482 (in the appropriate circumstances, counsel “would advise his client to talk freely to police in order to clear himself”); see also Fare, 442 U.S. at 721-22 (counsel is “able to protect his client’s rights by learning the extent, if any, of the client’s involvement in the crime under investigation and advising his client accordingly”). As the Appellate Division recognized, the “sense of immediacy and finality” in the script was, therefore, completely false. See Dunbar, 104 A.D.3d at 208. 36 The interrogators also conveyed the false sense that their interests were aligned with Mr. Polhill’s, thereby inviting him to provide whatever information he thought was helpful to his case. Antithetical to our adversarial system, this neutralized counsel’s advocacy role and handicapped Mr. Polhill’s right to representation. The district attorneys also took advantage of their control over when the Sixth Amendment right to counsel attached by delaying arraignment. See Dunbar, 104 A.D.3d at 200 (noting that interrogation occurred “immediately before those individuals’ indelible right to counsel would attach”). The language of the script undercut the meaning of all four Miranda warnings, rendering them incapable of communicating the “essential message” of Miranda. The script was so contradictory to the information Miranda requires that it ensured that the Miranda rights and the consequences of waiving them were not “reasonably convey[ed].” Cf. Powell, 559 U.S. at 64; Duckworth, 492 U.S. at 203. Rather than providing additional helpful information, the interrogators provided additional harmful information, which affirmatively undercut the ability of any reasonable defendant to understand his rights. The deceptive script raises the same concerns voiced by the five prevailing Supreme Court justices in Seibert. It was read not only to Mr. Polhill and the defendants in the companion cases, but to thousands of defendants as part of an intentional, formal, systematic program. See Seibert, 542 U.S. at 613-14, 617 (plurality), 620-21 (Kennedy, J., concurring). And, as in Seibert, it was “designed to circumvent” 37 Miranda by purposefully neutralizing the effect of each Miranda right in an “intentional misrepresentation” and “deliberate violation” of the Miranda procedure. Seibert, 542 U.S. at 618, 620-01 (Kennedy, J., concurring). As the Appellate Division recognized, the goal of the program was to elicit information from uncounseled individuals that they would not have given had they been properly Mirandized. Dunbar, 104 A.D.3d at 213. That goal was directly contrary to Miranda. The wide-spread program “drain[ed] the substance out of Miranda” and “thwart[ed]” the purpose of the warnings themselves. Seibert, 542 U.S. at 616 (plurality); see Paulman, 5 N.Y.3d at 133 (interpreting Seibert under state law as preventing “intentional[ ],” “impermissible end run[s]” around Miranda). The timing of the pre-Miranda script furthered that illicit purpose. Clever timing cannot be used to circumvent the proper Miranda procedure. As this Court first articulated under the state constitution, giving warnings “[l]ater is too late.” Chapple, 38 N.Y.2d at 115. Here, the district attorneys “wait[ed] for a particularly opportune time” to give Miranda warnings and elicit a waiver of them, Seibert, 542 U.S. at 611, after Mr. Polhill and others like him had already been primed to waive their rights in the misguided belief that doing so was to their benefit. The long-standing constitutional principle that timing matters to the constitutionality of a Miranda procedure applies despite the creativity the Queens District Attorney’s Office demonstrated in fashioning a new way to circumvent Miranda. 38 That this protocol was used primarily, if not exclusively, with indigent defendants should also raise serious concerns for this Court. Courts have long recognized that conduct burdening the prearraignment right to counsel disproportionately impacts indigent defendants. See, e.g., United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 1984) (expressing particular concern that prearraignment interrogation poses a serious risk to “the Sixth Amendment rights of indigent suspects”); accord United States v. Foley, 735 F.2d 45, 49 (2d Cir. 1984); People v. Perez, 37 Misc.3d 272, 281-85 (Queens Sup. Ct. 2012) (noting that the Queens program uniquely affects the indigent because they do not receive appointed counsel until after a complaint is filed). “While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice.” Miranda, 384 U.S. at 472. This interrogation protocol did just that: it took advantage of defendants’ indigency by implying that invoking the right to counsel would result in “adverse, and irrevocable, consequences.” Dunbar, 104 A.D.3d at 208. As the Appellate Division correctly concluded, the pre-Miranda script “serve[d] to confuse, or at worst, mislead” defendants “as to the nature of their rights and the consequences of waiving them.” Dunbar, 104 A.D.3d at 211. Because Mr. Polhill and the other defendants were never effectively informed of their rights, they could not knowingly, intelligently, and voluntarily waive them. Under both federal law and New York’s more protective constitution, therefore, the Queens interrogation protocol was 39 unconstitutional, and the Appellate Division’s decision was correct. Seibert, 542 U.S. 600; Miranda, 384 U.S. 436; Paulman, 5 N.Y.3d at 130; Chapple, 38 N.Y.2d at 115. POINT II THE PEOPLE’S ARGUMENT THAT THIS COURT SHOULD USE THE OLD TOTALITY-OF-THE- CIRCUMSTANCES TEST IS CONTRARY TO LONGSTANDING PRECEDENT, SIDESTEPS THE THRESHOLD INQUIRY OF WHETHER THE MIRANDA WARNINGS WERE EFFECTIVELY CONVEYED, AND IGNORES THE MISLEADING LANGUAGE OF THE SCRIPT. Throughout their brief, the People claim that the mere fact that Miranda was read after the script was administered establishes that the warnings were reasonably conveyed (People’s Br. 8, 32-33, 35-36, 43). In doing so, they conflate two separate and distinct issues. One is whether Miranda was effectively conveyed and, therefore, knowingly, intelligently, and voluntarily waived. The other is whether a defendant’s post-Miranda statement was involuntary under the due process totality-of-the- circumstances test despite proper Miranda procedure because, for example, there was coercion, lack of access to food or water, or other physical or psychological deprivation (People’s Br. 32-33, 36-37, 40-44). The People thereby overlook the very questions this Court must decide: whether the Miranda warnings were effectively conveyed and knowingly, intelligently, and voluntarily waived. 40 By framing the issue as one of involuntariness, the People attempt to revive the old totality-of-the-circumstances test, gloss over the misleading language of their pre- Miranda script, and ignore federal and state case law related to the effective conveyance of Miranda (People’s Br. 8, 34-35, 38). Contrary to the People’s contentions, the Appellate Division’s decision was grounded in clearly established law and correctly rejected precisely these arguments. A. The Totality-of-the-Circumstances Test Does Not Apply Because the People Have Not Demonstrated Effective Conveyance of Miranda. The People bear the “heavy” two-pronged burden of showing that the Miranda warnings were (1) effectively conveyed and (2) knowingly, intelligently, and voluntarily waived. Unable to do so, they attempt to bypass both of those critical hurdles by simply asserting that the Queens interrogators complied fully with the Miranda procedure merely by reading the warnings and that “there is no question” that the defendants received a “clear and unequivocal advisement of [their] rights” (People’s Br. 8, 32-33, 35-36, 43). This conclusion merely begs the question. The People also fault the Appellate Division for not viewing “the impact of the pre-Miranda remarks” through “the prism of clear, forceful and unequivocal Miranda warnings that follow[ed]” (People’s Br. 50). With this sleight of hand, the People skip over half a century of federal and state case law requiring the effective conveyance and valid waiver of Miranda and move directly to the totality-of-the-circumstances test that Miranda itself specifically rejected (People’s Br. 35-37). Miranda, 384 U.S. at 467- 41 68; accord Dickerson, 530 U.S. at 432. After Miranda, the totality-of-the-circumstances test only applies to questions concerning the voluntariness of a properly Mirandized statement, not whether Miranda was effectively conveyed and knowingly, intelligently, and voluntarily waived in the first place. The People’s claim that the bare fact that the Miranda warnings were read at some point necessarily establishes that they were effectively conveyed (People’s Br. 28-31) is incorrect. “[M]ere recitation of the litany” of Miranda rights does not suffice in all circumstances. Seibert, 542 U.S. at 611-12; Chapple, 38 N.Y.2d at 115.4 The cases on which the People rely to support their argument for applying the old totality-of-the-circumstances test (People’s Br. 33, 46) are not relevant to the threshold inquiry of whether the Miranda rights were effectively conveyed. Instead, they relate to whether a person spoke voluntarily following effective warnings and 4 The People incorrectly assert that “[e]ven the program’s harshest critics have recognized that suppression necessarily depends on an evaluation of the voluntariness of each individual suspect’s” waiver (People’s Br. 21, n.7). In People v. Perez, 37 Misc.3d 272, 291 (Queens Sup. Ct. 2012), the court actually sanctioned the Queens District Attorney for the unethical practice of misleading defendants about the nature and scope of their Miranda rights. Although it noted “constitutional” concerns, the decision was not based on a constitutional analysis. Id. at 280-81. The judge in that case is far from the only critic of the program. See, e.g., People v. Allen, 2761/08 (Opinion, Decision, & Order, May 14, 2010, Griffin, J.) (in granting suppression on other grounds, noting the coercive effect of the interrogation’s timing); People v. Floyd, 3034/08 (July 20, 2009, Demakos, J.H.O.) (the script deceptively primed defendants to relinquish their rights before becoming aware of them); People v. Ware, July 20, 2009 (same) (adopted, Aug. 19, 2009, Gavrin, J.); People v. Comery, 1376/08, Aug. 4, 2009 (same) (adopted Aug. 20, 2009) (Buchter, J.); People v. Bonaparte, 37/09, Dec. 2, 2009 (same) (rev’d Gavrin, J. Dec. 16, 2009); People v. Davis, 2512/08, April 30, 2010 (same) (adopted May 26, 2010, Hollie, J.). In Ware, Comery, and Davis, the decisions were recalled only after the Queens District Attorney wrote letters requesting reevaluation (Appellant’s App. Div. Br., at. 42-43). 42 valid waivers, see People v. Keene, 148 A.D.2d 977, 978 (4th Dep’t 1989) (despite valid waiver, statement was involuntary because police threatened to jail defendant’s wife and take away his son); invoked his rights following effective warnings, see Fare, 442 U.S. at 709, 725-28 (post-waiver request to speak with probation officer was not an invocation of right to counsel); and whether interrogators have an obligation to provide additional information once clear and effective Miranda warnings are provided, see Colorado v. Spring, 479 U.S. 564, 576 (1987) (police need not explain “all possible subjects of questioning” before interrogation); Moran, 475 U.S. at 424 (police need not tell individual his lawyer is trying to contact him).5 In none of those cases was there a dispute over whether the Miranda warnings were adequate and effective. The same incorrect assumption – that the mere recitation of the Miranda warnings establishes that they were effectively conveyed – underlies the People’s bluster about being held to the wrong burden of proof (People’s Br. 40-43). The People complain that the Appellate Division’s statement that there could be no “assurance” that defendants could clearly understand their rights under the Queens 5 People v. Anderson, 42 N.Y.2d 35 (1977), in which the Court suppressed, on due process grounds, a confession obtained after 19 hours of unlawful detention, isolation, sleep deprivation, prolonged and persistent questioning, did not even address Miranda. Nevertheless, this Court recognized that the failure to advise the defendant of his right to counsel raised a separate basis for suppression from the voluntariness analysis. Anderson, 42 N.Y.2d at 41. As the Appellate Division explained, People v. Williams, 62 N.Y.2d 285 (1982), in which this Court rejected an argument that a suspect of subnormal intelligence would not have understood adequate Miranda warnings, is inapposite because the issue here is whether Mr. Polhill ever “received a clear and unequivocal advisement of his rights.” Dunbar, 104 A.D.3d at 210. 43 interrogation program heightened their burden (People’s Br. 39-40). But their burden was assigned by the Supreme Court in Miranda itself. Miranda, 384 U.S. at 457, 469, 472-74 (“[o]nly through such a warning is there ascertainable assurance that the accused is aware of the right”); accord Paulman, 5 N.Y.3d at 130. Because the People never met the threshold burden of showing effective conveyance and valid waiver of Miranda, the burden did not shift to Mr. Polhill, and the cases cited by the People about shifting burdens in a variety of situations (People’s Br. 40-43) are irrelevant.6 Similarly, the People’s complaint that the Appellate Division should not have used a “reasonable” defendant analysis (People’s Br. 38-40) ignores the fact that both federal and state courts apply precisely that standard. See, e.g., Powell, 559 U.S. at 61-63, 63 n.7 (discussing effect of a script on a “reasonable defendant” and explaining that the individual’s reaction to the modified Miranda warning “does not bear on our decision”); Seibert, 542 U.S. at 610-13 (addressing the “likely reaction” to the interrogation procedure); Duckworth, 492 U.S. at 204 (same); Paulman, 5 N.Y.3d at 131 (looking to the reaction of a “reasonable suspect in the defendant’s position”). 6 The People’s argument that the Appellate Division’s decision failed to afford sufficient deference to the hearing court’s factual determinations is simply a red herring (People’s Br. 31, 41). There is no dispute about the facts in this case and the People never explain precisely what factual determinations they believe deserved deference. 44 B. The Court Should Reject the People’s Conclusory Assertion that the Pre- Miranda Script was Not Misleading. This Court should reject the People’s brazen invitation to simply ignore the pre-Miranda script. In skipping over the two basic Miranda hurdles and complaining that the Appellate Division “erased or ignored [the warnings] as though they were never uttered at all” (People’s Br. 36), the People dismiss the pre-Miranda script as simply a “brief set of remarks” (People’s Br. 31, 39-40, 50-52). They gloss over the language of the script, attempt to justify only parts of it, and offer merely the conclusory assertion that it was not “mislead[ing]” (People’s Br. 48-51). These arguments in no way undermine the Appellate Division’s conclusion that, “[w]hen the clear and unequivocal warnings devised in Miranda [were] combined with the information and suggestion contained in the preamble,” the result “prevented [the warnings] from effectively conveying to suspects their rights.” Dunbar, 104 A.D.3d at 207 (emphasis added). The People do not address at all the first two instructions of the script, that Mr. Polhill should “give us as much information as [he could]” and that this was his “opportunity to tell [his] story.” Nor do they explain why these instructions did not undercut the warnings that he had the right to remain silent and that anything he said could be used against him. Instead, the People specifically discuss only the final two instructions, that Mr. Polhill “ha[d] to” “tell us now” and that this was his “only opportunity” to “talk” before going to court on the charges (People’s Br. 49-50). 45 Although the People argue that “[o]rdinary words should be presumed to have ordinary meaning” (People’s Br. 49-50 n.10), they disclaim the false sense of urgency their script conveyed by asserting that its instruction that Mr. Polhill “ha[d] to” talk “now” as his “only opportunity” “does not imply to a rational person” that a decision to remain silent would deprive him of another, later opportunity to speak with the prosecutors (People’s Br. 49-50 n.10). The People do not, and cannot, explain how the “ordinary” meaning of mandatory language like “have to,” “now,” and “only opportunity” would convey that a defendant did not “have to” talk “now,” could do so later instead, and would have additional opportunities to do so. The People argue that, because Mr. Polhill did not ask the district attorneys to investigate his claims, he was not mislead by their promise to do so (People’s Br. 51). This is inaccurate. Mr. Polhill insisted that he was not at fault and that he wanted to press charges against the man who had punched and thrown him to the ground. He also informed the interrogators about a potential surveillance tape, obviously indicating his desire for an investigation, but the interrogators ignored him, saying they had “heard” he was with another man.7 The People also disingenuously point to the “accura[cy]” of the language that “[t]his will be your only opportunity to speak with us” “before you go to court” “on 7 In the companion cases, Mr. Dunbar explicitly requested an investigation into things “outside of this,” obviously believing that was what he had been offered, only to be told that they would not conduct one (Dunbar DVD, 12:11). Likewise, Mr. Lloyd-Douglas asked the interrogators to look at pictures of his house so that they could understand what he was talking about, but they dismissed this request and continued interrogating him, saying they would get to pictures “later” (Lloyd- Douglas DVD, 12:17. 46 these charges” (People’s Br. 49). They ignore the reality that although going to court to be arraigned is a significant procedural moment to lawyers, there is no reason to expect a lay person to understand that there are distinct disadvantages to speaking with the District Attorney’s office before arraignment and therefore without the protection of counsel. Nor can defendants be expected to understand that, once their lawyer is appointed, they could still approach the district attorney, through counsel, but in a manner designed to protect their privilege against self-incrimination instead of forfeiting it. As the Appellate Division found, it was “not reasonable to expect an individual with no legal training to appreciate the subtle distinction that there may be other opportunities to tell his or her story after arraignment.” See Dunbar, 104 A.D.3d at 217 n.1. In addition to defending only two of the four misleading instructions in the pre-Miranda script, the People point to Mr. Polhill’s experience to posit that he would have understood what would “happen after arraignment” and the opportunities he would “subsequently be afforded” (People’s Br. 49). This argument was specifically rejected in Miranda. The level of a defendant’s experience with the criminal justice system is irrelevant to the threshold question of whether the People effectively conveyed an adequate warning, especially because even a sophisticated defendant would not know whether the interrogators intend to honor their rights until they are properly conveyed. Miranda, 384 U.S. at 468-69. As a result “[n]o amount of 47 circumstantial evidence that the person may be aware of this right will suffice to stand in its stead.” Id. at 471-72. The People also incorrectly claim that Mr. Polhill demonstrated that “he, not the interviewers, was in control of the extent and nature of the interrogation” (People’s Br. 52). This argument is inaccurate because the interrogation and its scope was initiated and defined by the interrogators themselves who confronted Mr. Polhill about summons he had received earlier that day, pressured him to divulge the identity of his alleged companion, and ignored his explanation for his lack of motive to rob someone.8 Finally, the very fact that the People make the same argument as to Mr. Polhill and both of the defendants in the companion cases belies their assertion that each defendant’s case was somehow “unique” (People’s Br. 40). C. In Urging that the Intentional Deception Their Systematic Program Entails is Irrelevant, the People Rely on the Argument Rejected by the Supreme Court in Missouri v. Seibert. The People complain that the Appellate Division looked at their interrogation program as a whole, including its purpose, intent, scope, and formality rather than merely at its effect on defendants (People’s Br. 44-47). However, these are the very 8 In the companion case of Mr. Dunbar, the People incorrectly claim that he did not show confusion during the interrogation. On the contrary, as the Appellate Division noted, his reaction was illustrative of the script’s confusing and contradictory language because he “twice interrupted the questioning to ask how the interview was ‘helping’ him, and asked whether he would next be speaking to the ‘D.A.’” Dunbar, 104 A.D.3d at 211. 48 factors relied on by the Seibert plurality and Justice Kennedy in concurrence. The People essentially advocate for the position of the Seibert dissenters. Just as Justice O’Connor, writing in dissent, found it worrisome that the winning arguments in Seibert “untether[ed] the analysis from the facts knowable to” the defendant, Seibert, 542 U.S. at 627, the People argue that whether the interrogation protocol was “ad hoc or [ ] carefully crafted” was “irrelevant” because it was not “known to the defendant” (People’s Br. 45). Like the Seibert dissenters, who found it “unattractive” to focus on the “police officer’s subjective intent,” Seibert, 542 U.S. at 625-26, the People now assert that the interrogator’s “intention” is “entirely irrelevant” (People’s Br. 46). The Seibert dissent, however, is not the law. Similarly, the People complain that a comment is either “proper or not” and that the “number of times” their script was used is immaterial (People’s Br. 45). The Appellate Division, however, drew directly from Justice Kennedy’s Seibert concurrence to explain that the “formality of the interviews” “lend[s] greater weight and authority to the statements read in the preamble” and, therefore, use of the pre-Miranda script is different than “brief, offhand remark[s].” Dunbar, 104 A.D.3d at 211; see Seibert, 542 U.S. at 620-21 (Kennedy, J., concurring) (the “deliberate violation” of Miranda was different from a good faith error by a police officer). The Seibert concurrence, which provided the fifth vote for the decision, is controlling. Paulman, 5 N.Y.3d at 134 n.5. The People are also simply wrong in asserting that the Appellate Division “recognized” Seibert, as well as Chapple and Paulman, as “inapposite” (People’s Br. 37 49 n.8). On the contrary, the Appellate Division relied on these cases for the “general principle that Miranda requires effective means to apprise a suspect of their constitutional rights.” Dunbar, 104 A.D.3d at 209. While the Appellate Division correctly held that whether “the preamble was the functional equivalent of interrogation” was “not essential” to the outcome of the case, id. at 212 n.2, the People’s claim that “no interrogation precede[d]” the Miranda waiver (People’s Br. 32, 37 n.8) is extremely misleading. Each part of the script was crafted to induce unrepresented defendants to disclose information that would have a direct impact on their criminal cases. That Mr. Polhill, like Mr. Dunbar, actually tried to speak before his rights were read demonstrates the strength of the script’s command that the defendant talk (DVD, 5:39; Dunbar DVD, 12:04). D. The People’s Approach Would Upend the Public Policy Balance Struck by Miranda. Finally, the People maintain as a matter of public policy that “society would be the loser” if this Court applies the per se Miranda standard rather than the old totality- of-the-circumstances standard (People’s Br. at 47). The Supreme Court, however, has held the opposite. As the Court has explained, “experience suggests that the totality- of-the-circumstances test . . . is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner.” Dickerson, 530 U.S. at 444. Adherence to the Miranda procedure is paramount to protecting the long- 50 fought-for, core principle of the American criminal justice system – the privilege against self-incrimination, which distinguishes ours from inquisitorial systems. Here, the balance has already been struck and the People’s obligation to show that Miranda was effectively conveyed is simple. Miranda, 384 U.S. at 468 (“giving an adequate warning as to the availability of the privilege” is “so simple”). The People should not be allowed to hide under a veil of alleged societal good because they chose at their peril to deviate from this straightforward rule. See Powell, 559 U.S. at 64 (“desirable police practice and in law enforcement’s own interest to state warnings with maximum clarity”) (citation omitted); Miranda, 384 U.S. at 468 (“To declare that in the administration of criminal law the end justifies the means would bring terrible retribution”) (citation omitted). There is no support for the People’s assertions that the program has various policy benefits. They baldy state, without identifying any supporting evidence, that the program has resulted in “voluntary and reliable confessions” and “has thus proved invaluable” in helping the “District Attorney to get it right,” to “aggressively prosecute as many of the guilty as possible and none of the innocent,” and to ensure that appropriate charges are filed and bail is recommended (People’s Br. 6). The People would be better served by relying on statements obtained with the proper Miranda procedure, which advances those same goals while reducing the danger of false inculpatory or inaccurate exculpatory statements. See Miranda, 384 U.S. at 470-71 51 (“presence of counsel at the interrogation” can “mitigate the dangers of untrustworthiness”). The People also suggest that suppressing Mr. Polhill statements, as well as those in the companion cases, will “jeopardiz[e] similar pre-arraignment interview programs” used throughout the state “in response to the ever-increasing demand for videotaped interrogations” (People’s Br. 8). This claim is pure fantasy. First, the People point to no other county that uses a pre-Miranda interrogation script. Second, the Appellate Division’s decision about the unconstitutionality of the program had nothing to do with the fact that the interrogation was videotaped. This case, in fact, demonstrates that the virtue of videotaping is that it allows reviewing courts to accurately analyze new challenges to Miranda procedure. Similarly, the People mischaracterize the scope of the Appellate Division’s decision by claiming that now “any statement uttered to a suspect” could be “characterized as changing the meaning or muddling the warning that follows” and that a “clever defense attorney” could couch “any other [verbal] conduct by law enforcement” as a “failure to properly and effectively administer Miranda” (People’s Br. 37-38). This fear is patently unfounded. The Dunbar decision does not implicate previously condoned introductory, casual, or off-hand remarks. See Dunbar, 104 A.d.3d at 211 (“cases involving limited, offhanded remarks by police officers do not compare to the systematic practice developed by the District Attorney’s office”). 52 None of the cases cited by the People about offhand remarks are affected by the Appellate Division’s decision (People’s Brief 44-45) (citing, inter alia, People v. Vasquez, 90 N.Y.2d 972, 973 [1997] [one line affirmance of case finding no functional equivalent to interrogation from offhand remark]). The People do not point to a single other type of verbal interaction preceding a valid Miranda wavier that would be implicated by this decision. The decision affects only the unique circumstance in Queens, in which over 14,000 suspects have been read a pre-Miranda script carefully calibrated to induce them to speak by misleading them about the true costs of waiving their rights to remain silent and to counsel. * * * Far from being the “sea-change” the People claim (People’s Br. 37), the Appellate Division’s analysis is grounded firmly in the federal and state constitutions. A sea-change is what the People seek. One would come about only if this Court overturned the Appellate Division’s decision, thus allowing other counties to adopt an anti-Miranda script and undercut the core logic of Miranda’s holding: that a person cannot waive a right about which he was not fairly and effectively advised. This Court should therefore reject the People’s arguments and affirm the Appellate Division’s decision. 53 POINT III THE APPELLATE DIVISION PROPERLY HELD THAT THE COMPLAINANT’S GENERAL AND VAGUE DESCRIPTION OF TWO BLACK MEN OF DIFFERENT HEIGHTS IN “DARK CLOTHING,” ONE WITH A HOOD, DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION TO STOP MR. POLHILL, WHO WAS DRESSED IN A HOODED, GREEN AND GRAY CAMOUFLAGE JACKET. The Appellate Division ruled correctly that the complainant’s exceedingly vague and general description of two black men of different heights dressed in “dark clothing,” one wearing a hood, did not provide the police with reasonable suspicion to stop Mr. Polhill. It also found that Mr. Polhill’s distinctive green and gray camouflage jacket did not match the radio run’s general description of two men dressed in black jackets. Conceding that the complainant’s description was insufficient to constitute reasonable suspicion, the People nevertheless claim that the Appellate Division ignored “additional” facts that they contend enhanced the general description, thereby justifying the stop of Mr. Polhill. The Appellate Division, however, expressly considered and rejected this argument in its decision. Because the Appellate Division’s decision suppressing the identification evidence as fruit of the unlawful stop was supported by the record and resolved a mixed-question of law and fact, this Court should affirm. U.S. Const., Amend IV; N.Y. Const., Art. I, § 12; see People v. Williams, 19 N.Y.3d 891, 893 (2012). 54 A. The Reasonable Suspicion Issue is Beyond the Court’s Scope of Review The People’s claim that the police had reasonable suspicion to detain Mr. Polhill is unreviewable because the Appellate Division’s determination involved a mixed question of law and fact and its holding is supported by the record. See Williams, 19 N.Y.3d at 893 (“Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact that is beyond our review if the determination has record support”); accord People v. Francois, 14 N.Y.3d 732, 733 (2010); People v. Quinones, 12 N.Y.3d 116, 121-22 (2009), People v. Silvestry, 11 N.Y.3d 902 (2009); People v. Allen, 9 N.Y.3d 1013, 1015 (2008); People v. Reyes, 90 N.Y.2d 916, 917 (1997); People v. Foster, 85 N.Y.2d 1012, 1014 (1995); People v. Madera, 82 N.Y.2d 775, 777 (1993). The People concede that the description “was somewhat general,” and alone did not provide reasonable suspicion, but claim that “additional” facts considered by the Appellate Division elevated the police’s knowledge to reasonable suspicion (People’s Br. at 24, 27, 29). Since the People tacitly acknowledge that “the legal standard” the Appellate Division applied “is not at issue,” this is a case in which the Appellate Division applied the correct legal standard to “undisputed facts” and, therefore, the issue is a mixed-question of law and fact beyond this Court’s review. Madera, 82 N.Y.2d at 777. 55 B. The Legal Standard to Justify a “Stop” Under the Fourth Amendment Before an officer can forcibly stop an individual, he or she must have reasonable suspicion to believe that the person has committed, is committing, or is about to commit a crime. People v. Hollman, 79 N.Y.2d 181, 184 (1992); People v. DeBour, 40 N.Y.2d 210, 223 (1976); People v. Cantor, 36 N.Y.2d 106, 112 (1975); see also Terry v. Ohio, 392 U.S. 1 (1968). To justify a stop of a person based on a description of the perpetrators, the description must be sufficiently specific and particularized to pinpoint that person as a suspect. People v. Brannon, 16 N.Y.3d 596, 604 (2011) (for an investigative stop to be upheld as lawful, the People must “point to ‘specific and articulable facts which, along with any logical deductions, reasonably prompted the intrusion’”) (emphasis added) (quoting Cantor, 36 N.Y.2d at 113); see also Ornelas v. United States, 517 U.S. 690, 696 (1996); United States v. Cortez, 449 U.S. 411, 417-18 (1981) (in both cases, “particularized and objective basis” to stop an individual suspect”). Consistent with these principles, general and vague suspect descriptions cannot support reasonable suspicion. See People v. Stewart, 41 N.Y.2d 65, 69 (1976) (general description of “man with a gun” and his location insufficient for stop and frisk). The First, Second and Fourth Departments have all concluded that descriptions limited to a person’s gender, race, or non-distinctive clothing do not provide police with reasonable suspicion. See, e.g., People v. Thomas, 300 A.D.2d 416 (2d Dep’t 2003) (description of black man wearing black clothing insufficiently specific); People v. 56 Dubinsky, 289 A.D.2d 415, 416 (2d Dep’t 2001) (description of two white males, 15-16 years old, wearing dark blue or black jackets, too vague: “[v]ague and general descriptions are not sufficient”); People v. Riddick, 269 A.D.2d 471, 471 (2d Dep’t 2000) (description of four black men, one wearing black jacket, insufficient to stop defendant, sole black man wearing black jacket); People v. Brooks, 266 A.D.2d 864, 864 (4th Dep’t 1999) (eye-witness descriptions of three black male robbers fleeing in a green car did not provide reasonable suspicion to stop a green car with three black men within a mile of the crime scene and 30 minutes after the incident); People v. Brown, 215 A.D.2d 333, 333 (1st Dep’t 1995) (description of two black men insufficient basis to stop defendants even though they appeared nervous and were three blocks from the incident within minutes of the commission of the crime); People v. Choy, 173 A.D.2d 883, 883-84 (2d Dep’t 1991) (description of four young Asians in dark clothes insufficient).9 9 These decisions are in line with federal circuit precedent that descriptions limited to clothing, race, and gender are too generic to constitute reasonable suspicion. See United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009) (vague and “general descriptions,” such as those limited to clothing and race, “standing alone, however, will not support a finding of reasonable suspicion”); United States v. Brown, 448 F.3d 239, 248, 252 (3d Cir. 2006) (suspect description of “African-American males between 15 and 20” years old, dressed in dark, hooded sweatshirts, one 6’0” and the other 5’8” painted too “broad of a brush” to constitute reasonable suspicion); Goodson v. City of Corpus Christi, 202 F.3d 730, 737 (5th Cir. 2000) (a description of a six-foot, heavy-set white male dressed as a “cowboy” was “simply be too vague, and fit too many people, to constitute particular, articulable facts on which to base reasonable suspicion.”); see also Commonwealth v. Cheek, 597 N.E.2d 1029, 1031-32 (Mass. 1992) (radio description of a “black male” suspect “with black ¾ length” coat did not justify stopping a person matching that description and present near the crime scene because it “could have fit a large number of men” in that area). 57 C. The Appellate Division Correctly Held that the Police Lacked Reasonable Suspicion to Stop Mr. Polhill The Appellate Division’s holding that neither the radio transmission nor the complainant’s description provided a lawful basis to detain Mr. Polhill is supported by the record. Citing the undisputed facts that Mr. Polhill was “dressed in a dark gray and dark green camouflage jacket” while “standing alone, outside a liquor store, 20 blocks away from the crime scene,” the Appellate Division found that Mr. Polhill’s “appearance did not match the description broadcast on the radio” of “two male blacks wearing black jackets” and one dressed in “black jeans” and the other “blue jeans” (A. 3, 99) (emphasis added).10 The Appellate Division also properly held that the police could not justify stopping Mr. Polhill because his appearance allegedly matched the complainant’s exceedingly vague and general description of two black men of different heights “wearing dark clothing,” the shorter of which “had a hood” (A.3, 72-73, 84-86, 98-99) (emphasis added). This description, which encompassed an incalculable number of African-American men, did not give the police the requisite specific and articulable reason to single out Mr. Polhill. See Cortez, 449 U.S. at 417-18 (“particularized and objective basis” to stop an individual suspect); Brannon, 16 N.Y.3d at 604 (police must point to “specific and articulable facts which, along with any logical deductions, 10 The People do not rely on Officer Bonner’s testimony that he “overheard” that the suspect was wearing a camouflage jacket for good reason: the complainant never mentioned that the perpetrator’s jacket was camouflage instead of dark. 58 reasonably prompted the intrusion”) (emphasis added); accord Stewart, 41 N.Y.2d at 69 (anonymous tip of a small man with a gun in black overcoat and black hat named Donald too general to stop). For this reason, the Appellate Divisions have held similar descriptions limited to gender, race and unparticularized attire insufficient to support a claim of reasonable suspicion. See, e.g., Thomas, 300 A.D.2d at 416; Dubinsky, 289 A.D.2d at 416; Riddick, 269 A.D.2d at 471; Brown, 215 A.D.at 333; Choy, 173 A.D.2d at 883-84; see also Brooks, 266 A.D.2d at 864. The People never argue that the radio description alone gave the police reasonable suspicion to stop Mr. Polhill. Instead, they assert that the Appellate Division ignored additional facts that, combined with the complainant’s description, justified the stop. Conceding that the complainant’s description “was somewhat general,” the People contend that the Appellate Division’s analysis was “incomplete” and “ignor[ed]” several “other key facts known to the police” that gave them reasonable suspicion to stop Polhill: (1) Officer Bonner’s observation that Mr. Polhill appeared “startled;” (2) that he was leaving a subway station two stops and 20 blocks away from the scene of the incident; and (3) that he was with a taller black man also dressed “in dark clothes” (People’s Br. at 14, 24, 27-28). Their argument fails on several fronts. Mr. Polhill’s apparent “startled” expression was hardly incriminating (People’s Br. at 14). This Court has dismissed similar behavior observed during a street-level encounter as “innocuous,” because relying on such factors to justify a stop would 59 “impermissibly reduce the foundation for any intrusion to nothing but whim or caprice.” People v. Carrasquillo, 54 N.Y.2d 248, 252 (1981) (defendant’s “quick” turn after making eye contact with police did not justify detention); see also Thomas, 300 A.D.2d at 416 (rejecting People’s argument that “additional” facts including the defendant nervously “looking back and forth” justified stop). Furthermore, Officer Bonner said that instead of avoiding the uniformed officers, Mr. Polhill drew further attention to himself, cracking jokes at them (People’s Br. at 12). This was not the conduct of someone nervous about the presence of uniformed officers because he had recently committed a crime. See Brannon, 16 N.Y.3d at 602 (reasonable suspicion “may not rest on equivocal or innocuous behavior that is susceptible of an innocent as well as a culpable interpretation”). That Mr. Polhill left a subway train two stops away from the incident was similarly equivocal and innocuous; it only demonstrated that he had ridden the F-train around the time of the robbery (People’s Br. at 27, 29). The People speculate that the police knew “that the two robbery suspects had fled on a[n] east-bound F train” (People’s Br. at 27). The toll booth clerk at the Parsons and Hillside Station, however, told the police only that “two gentlemen fitting” the complainant’s general “description went downstairs into the subway system” and that it was a “possibility that they could be on the next . . . two stops” (A. 75) (emphasis added). And, the hearing record did not establish that the two men were heading toward a specific platform that only serviced trains going in one direction. Without specific testimony 60 stating otherwise, there is no reason why men fitting the general description could have boarded a train heading in either direction and could have exited at any stop. The People’s claim boils down to the ludicrous assertion that the police would have been justified stopping any pair of men in dark clothing who boarded, rode, or exited the F-line at any stop following the incident. The People also misstate the record in claiming that Officer Bonner saw Mr. Polhill exiting the station with another man dressed in “dark clothing,” and thus the pair “perfectly match[ed] the description of the two suspects” (People’s Br. at 27). Officer Bonner in fact testified that he could not recall the second man’s “physical attributes” or “clothing” and, therefore, there was nothing in the record establishing that he was dressed in dark clothing (A. 52-53). In any event, even if the second man’s clothing was “dark,” the complainant’s description was too vague to justify stopping Mr. Polhill later that evening because the description would have encompassed any pair of men wearing generic “dark” clothing. See Thomas, 300 A.D.2d at 416 (description of black men in black clothing to general to justify stop); accord Dubinsky, 289 A.D.2d at 416; Riddick, 269 A.D.2d at 471. That the second man appeared “slightly taller” than Mr. Polhill did not corroborate the complainant’s description that one was “taller” than the other (A. 52-53; People’s Br. at 27). And, given the range of heights in the general population, generally one of any pair of people would be taller than the other. As a result, this fact does not distinguish Mr. Polhill and the other man from any other pair of men. 61 The People’s claim that the Appellate Division “ignor[ed]” other relevant facts in the record (People’s Br. at 27), is contradicted by the decision itself. The Appellate Division specifically addressed “the other facts identified by the People” to hold that they did not “supply reasonable suspicion” (A. 3). Rejecting an argument is not the same as ignoring it. The People’s related argument that the Appellate Division failed to accord sufficient deference to the hearing court’s factual determinations is unconvincing (People’s Br. at 28). They rely on People v. Prochilo, 41 N.Y.2d 759, 761 (1977), which states that a reviewing court should defer to a hearing court’s credibility determinations, but Officer Bonner’s credibility was not disputed, and the People do not explain what other factual determinations deserved deference. The People do not cite a single case to support their contention that a description as vague as the one police acted upon here would constitute reasonable suspicion to stop a suspect even with the “additional” factors they claim exist. Instead, the People rely on cases holding only that the totality of the circumstances may provide police with reasonable suspicion when a suspect behaved suspiciously (People’s Br. at 29). See People v. Evan, 65 N.Y.2d 629 (1985) (defendant running while carrying a white plastic bag, and frantically trying to gain entrance to a building where he did not live); People v. Watkins, 40 A.D.3d 290 (1st Dep’t 2007) (defendant, “the only person present in the area of a burglary, was dressed in inappropriate attire for the weather, attempted to conceal clothing matching the description given by complainant, and walked away from police”); People v. Selby, 220 A.D.2d 544, 544-45 62 (2d Dep’t 1995) (defendant was walking from a gas station carrying a bag after a silent burglar alarm had been activated). Here, in contrast, Mr. Polhill was simply standing alone in front of a liquor store when Officer Bonner stopped him. In sum, the Appellate Division’s decision, which involved a mixed-question of law and fact for which there was support in the record, correctly held that the police lacked reasonable suspicion to detain Mr. Polhill, and properly suppressed the identification evidence. Should this Court rule under Points I and II that Mr. Polhill’s pre-arraignment statements made in Queens Central Booking were admissible, it should remand the case to the hearing court to determine whether the unlawful seizure of Mr. Polhill nonetheless requires suppression of the statements as fruit of an unlawful Fourth Amendment intrusion. See Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 422 U.S. 590 (1975); Wong Sun v. United States, 371 U.S. 471, 488 (1963). 63 CONCLUSION FOR THE FOREGOING REASONS, THE APPELLATE DIVISION’S DECISION SHOULD BE AFFIRMED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates 2 Rector Street, 10th Floor New York, New York 10006 (212) 693-0085 _______________________________ By: Allegra Glashausser & Leila Hull Of Counsel Dated: January 17, 2014 New York, New York