The People, Respondent,v.Darrion B. Freeman, Appellant.BriefN.Y.March 21, 2017Office of the Public Defender Monroe County, New York Cheryl Dinolfo County Executive John P. Asiello Clerk of the Court State of New York, Court of Appeals 20 Eagle Street Albany, New York 12207 Timothy P. Donaher, Esq. Public Defender November 18.2016 Re: People v Freeman (Darrion), APL-2016-00182 Dear Mr. Asiello: 'This letter brief is submitted in response to the CourCs request for submissions pursuant to Rule 500.11. Materials previously submitted to the Appellate Division are enclosed along with the transcript of the hearing at issue on this appeal. The briefs and the decision below address substantive issues in this appeal, while the scope of this Court's review is discussed in the Motion for Leave. This letter brief supplements both, focusing on the issues that are uniquely relevant to this Court's review and, therefore, were not fully addressed in the briefs below. In particular, three points are addressed: (1) the issues presented here are of statewide and national importance, (2) reversal is required even if this Court employs the limited scope of review for mixed questions of law and fact, and (3) this Court should exercise its unique power to modify the present legal framework for evaluating the voluntariness of consent under the state constitution. 1. This Case Presents Legal Issues of Statewide and National Importance. This appeal concerns the legal standards that detemtine whether consent to a search of is voluntary, so as to except that search from the strictures of the Fourth Amendment (US Const, Amnd IV) and the state constitution (NY Canst, Art I. § 12). In this case. the consent was given by a lone African-American man who had just been taken into police custody, as the result of sudden and intimidating 10 N. Fitzhugh Street • Rochester, New York 14614 (585) 753-4210 • fax: (585) 753-4234 • www.monroecounty.gov street confrontation instigated by the police. He was frisked, handcuffed, placed under arrest, and told, in essence, that his situation would become worse if he did not cooperate. The full circumstances of his consent are discussed further below. The current legal framework in this area, which calls for an analysis of the totality of the circumstances, bas been established since at least the mid-1970s (see Schneckloth v Bustamante, 412 US 218 [1973]; People v Gonzalez (39 NY2d 122 [1976]}, before the "War on Drugs" was declared and before the resulting era of mass incarceration. With this flexible framework in place, the elicitation of consent became a key weapon in the arsenal used to execute that war and to imprison an unprecedented number of men, particularly young men of color, living in poor, urban communities. 1 Common sense, and practical experience in criminal justice, teaches that few people stopped by the police know that they may refuse a request for consent and even fewer have the nerve to do so. These encounters are inherently intimidating. (See People v Hollman, 79 NY2d 181, 191-92 [1992] ["no matter how calm . . . or how polite" a police request for consent to search is "intrusive and intimidating"]; Gonzalez, 39 NY2d at 128-29 ["immediate events of an arrest ... engender an atmosphere of authority ordinarily contradictory of a capacity to exercise a free and unconstrained will'l) This is particularly true of African-Americans and those who live in heavily policed communities. During the four decades since Gonzalez and Schneckloth were decided, news reports, civil complaints, and sociological research have provided a steady and troubling stream of data that indicate the implausibility of voluntary consent in confrontations between those executing the war on drugs and those who have been its primary targets? For African-American men, names like Rodney King, Abner Louima, Amadou Diallo, Eric Gamer, Michael Brown, Tamir Rice, Freddie Gray, and Philando Castille evoke a tiny, but salient fraction of the events that send an overwhelming message that police encounters can, in an instant, become life or death situations. Thls message, which teaches submission and compliance, is reinforced by countless less notorious incidents, including fatal shootings that draw See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (Revised Edition 2012), at 64-67,97-139. 2 A review of the sociological research is beyond the scope of this letter brief, but it can at least be noted that it is established that negative attitudes and distrust toward the police are correlated with race, with blacks and Iatinos more likely to perceive racial bias and harassment on the part of the police. See e.g. McNeeley & Grothoff, "A Multilevel Examination of the Relationship Between Racial Tension and Attitudes Toward the Police," Am J Crim Just, Vol41 (2016) at 383-401 (summarizing prior research demonstrating that attitudes toward the police are strongly correlated with race, and finding that the more negative attitudes held by African- Americans and Latinos hold across neighborhoods). -2- only local attention, and more routine instances of being manhandled, roughed up, or beaten.3 And this message is also passed down in communities of color by parents and elders afraid for the safety their children.4 3 To take one relevant example, this Court may take notice of news reports indicating that on October 13, 2011, just a few months before the encounter at issue here, Hayden Blackman, an African~American man, was shot and killed by the Rochester police in the same westside neighborhood, just blocks from where the police arrested Mr. Freeman and elicited his consent (See Daily Messenger, "Man shot, killed by Rochester police officer," (October 14, 2011), available at http://www.mpnnow.com/x485788937/Man~sbot-killed-by-Rochester~police~officer [last visited November 16, 2016]; Wik.ipedia, "Rochester Police Department," https://en.wikipedia.orglwiki/Rochester_Police_Department [last visited November 16, 2016] [compiling a list of police shootings].) The incident sparked community protests, even though the officer's action was subsequently deemed justified. These national and local incidents create tension and fear between African American communities and the police, which should not be ignored in evaluating the possibility for voluntary consent. (See United States v Washington, 490 F3d 765 (9th Cir 2007) ["Given .. . the tension between the African~American community and police officers in Portland in light of the prior shootings above-mentioned, we have no confidence that Washington's assent to the car search was voluntary under the total circumstances."]) 4 See Utah v Strieff, _US_, 136 S Ct 2056, 2070 (2016) (Sotomayor, J., dissenting: "For generations, black and brown parents have given their children 'the talk'-instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger-all out of fear of how an officer with a gun will react to them.") A recent National Book Award winner and bestseller is, essentially, a long form, literary version of this teaching. See Ta-Nehesi Coates, Between the World and Me (Spiegel & Grau 2015). Written as a letter from the author to his son, Coates focuses throughout on the vulnerability of back lives in the bands of the police, treating it as an essential and overbearing part of the experience of black men in the United States. The following excerpted passage is representative: "I write to you in your fifteenth year. I am writing to you because this is the year you saw Eric Garner choked to death for selling cigarettes. . .. And you know now, if you did not before, that the police departments of your country have been endowed with the authority to destroy your body .. . . And destruction is merely the superlative form of a dominion whose prerogatives include friskings. detainings, beatings, and humiliations. All of this is common to black people. And all of this is old for black people. No one is held responsible .. .. I didn't comfort you, because I thought it would be wrong to comfort you. I did not tell you that it would be okay, because I have never believed it would be okay. What I told you is what your grandparents tried to tell me: that this is your country, that this is your world, that this is your body, and you must find some way to live within the all of it." (!d. at 9-12.) Another form of this teaching is described in United States v Washington (490 F3d 765} where, in the wake of two police shootings of Mrican American citizens, police distributed pamphlets advising that citizens should '"follow the officer's directions' when stopped, and 'if ordered, comply with the procedures for a search,"' and African~American community leaders advised community members "to comply with officers doing stops to ensure that they did not do - 3 - Yet, after decades of experience with the street and station house encounters where the war on drugs is waged, the law on the voluntariness of consent has not been reconsidered. The standards remain vague and flexible. In New York in particular, since the Gonzalez decision in 1976, this Court has engaged in virtually no review and issued no decisions that would guide or press the lower courts to apply the law in ways that show a true appreciation for the inherently coercive nature of the circumstances in which consent is frequently elicited. Thus, in their application of these standards, the lower courts often end up enshrining an almost other-worldly myth that, absent some immediate, obvious, and exceptionally overbearing police conduct, compliance with a police request for consent is a voluntary act. As explained below, the present case illustrates this issue clearly. The lower courts simply disregarded every factor revealing the coercive impact of Mr. Freeman's circumstances. The consequences are not trivial. In the present case, Mr. Freeman's purported consent was used to authorize a warrantless entry and search of his home. When it comes to the state and federal constitutional protections at issue, "the home is first among equals. At the [Fourth] Amendment's 'very core' stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (Florida v Jardines, _US_, 133 S Ct 1409, 1414 [2013].) Warrantless searches in the home are "presumptively unreasonable" (Kyllo v United States, 533 US 27, 40 [2001]), and that presumption must be overcome by the People. But consent provides a way around this difficulty, and it requires nothing but the air of authority that comes with a badge and gun. It is not the normal, but the exceptional individual who possesses the boldness or the privilege to refuse a police request for consent. Thus, the lower courts' unreviewed and lenient application of the Gonzalez-Schneckloth framework allows the police to undermine a core constitutional privilege, particularly when the police are dealing with people who have legitimate reasons to fear that resistance could put their bodies in jeopardy. In this case, this Court should address these issues in two ways. First, this Court should hold that the uncontested facts are legally insufficient to establish the voluntariness of Mr. Freeman's consent to entry and a search of his home. This is appropriate even if the Court simply employs the existing standards derived from Schneckloth and Gonzalez and the limited scope of review for mixed questions of anything to contribute to the volatility of the scene [and] not to try to advance any rights other than to stay alive relative to complying with the officer." (ld. at 768-69 & n2 [emphasis added].) -4- law and fact. This alone would provide guidance and a new point of reference for the lower courts. It would serve as a reminder that these standards are, in fact, meant to impose a "heavy burden" on the People, and that factors such as the custodial setting, the use of handcuffs, and the failure to advise of a right to withhold consent must be given significant weight Second, the Court can and should make a change to the Gonzalez framework. In particular, the Court should reconsider Gonzalez's undefended rule that even defendants in police custody need not be advised of their right to withhold consent. As discussed below, this rule emerges as an accident in the prior federal case law, without analysis or defense, and it was subsequently adopted in the Gonzalez decision, again without examination. The rule reflects a failure to appreciate the inherently coercive nature of a police request for consent in a custodial setting, and it cannot be reconciled with the law's simultaneous insistence that suspects in the very same situation must be warned before the police may attempt to elicit incriminating information. Based on these legal issues, the Court should reverse the order of the Appellate Division, suppress the evidence obtained as a result of the consents, vacate the convictions, and dismiss the charges. In the alternative, Mr. Freeman requests the opportunity for full briefmg and argument. 2. The Consent to Entry and the Consent to the Search were Involuntary as a Matter of Law under Gonzalez and Schneckloth. The facts of this case are set forth in the hearing court's findings of fact (see Hearing Minutes, August 24, 2012, [hereinafter "H_"] at __), the briefs to the Appellate Division, and the Appellate Division's opinions. The essential facts are undisputed, and they are discussed below only where relevant to the arguments. a. The Scope of Review If this case is analyzed under the legal standards established in Gonzalez and Schneckloth, the first issue that must be addressed is the scope of this Court's review. Under these standards, the voluntariness of a person's consent to a police search is governed by a totality of the circumstances approach, in which the courts are directed to consider several relevant, but non-controlling factors to detennine whether the person's will was overbom. For purposes of appellate review in New York, this voluntariness detennination typically presents a mixed question of law and fact. However, this should not preclude careful review and reversal in this case. -5- As a general matter, mixed questions of law and fact are not outside of this Courts' jurisdiction. They are reviewable under a standard that turns on whether there is legally sufficient evidence in the record to support the lower court's detennination. (See People v Sierra, 83 NY2d 928, 929 [1994].) This standard has not prevented this Court from reversing in an appropriate case. For example, in Sierra, the Court addressed mixed questions in two cases, reversing in one of them. In that case, although there was undisputed testimony that the police saw a man grab his waistband and flee a traffic stop - facts that many would see as supporting suspicion- this Court held that these facts "provided [the police] with no information regarding criminal activity" and that, therefore, "the factual record does not support a determination that the officers had reasonable suspicion." (/d. at 930.) In other words, the Court determined that the facts supporting the lower courts' fmding of reasonable suspicion were insufficient as a matter of law. This case is analogous. As argued below, the isolated fact relied upon by the lower courts is insufficient as a matter of law. (See People v Porter, 9 NY3d 966 [2007] [reversing because there was insufficient record support for the mixed conclusion that defendant's request for counsel was equivocal, despite the fact that it was prefaced by the words "I think"].) In addition, in the specific legal context presented here, this Court has held that the voluntariness of consent to a search may present a question of law: "Where, as here, the circumstances objectively reveal the overbearing official conduct in obtaining an apparent consent, there is, as the Appellate Division concluded, a question of law, and an absence of voluntary consent." (Gonzalez, 39 NY2d at 124.) The Gonzalez Court explained that it would address voluntariness as a question of law by crediting the testimony of the prosecution witnesses and any defense admissions and by disregarding the different factual account given by defense witnesses. (ld.) The Court's approach to the facts in Gonzalez can be employed here. Here, the only witnesses were called by and for the People, no significant credibility issues need to be resolved, and there is no dispute about the essential, underlying facts. Under these approaches, this case presents a pure question of law: Are the facts legally sufficient to support a fmding of voluntariness? As argued in the Appellate Division dissent and below, they are not. The Appellate Division's majority decision does not cite or discuss the factors that, under controlling law, a court must consider in determining whether consent is voluntary. (See Gonzalez, 39 NY2d at 128-30; Matter of Daija D., 86 AD3d 521, 521-22 [1st Dept 2011].) -6- And as the dissent recognized, "[n]one of those factors weighs in favor of a finding of voluntariness in this case!' (People v Freeman, Slip op. at 4, 141 AD3d 1164, 1168 [4th Dept 2016].) As the dissent put it, "the coercive logic of the situation would have been obvious to any reasonable, innocent person in the defendant's place," and the facts "compel the conclusion" that the consents at issue were the product of overbearing police conduct. (ld. at 1170.) Thus, review and reversal is warranted here. b. The Evidence is Insufficient as a Matter of Law to Carry the People's Burden to Prove that Mr. Freeman Voluntarily Consented to the Initial Entry into His Home. With respect to the entry into his home, every factor relevant under the Schneckloth-Gonzalez framework points in favor of a fmding that the consent was involuntary. First, the People failed to establish any facts that would indicate that Mr. Freeman had the kind of experience that would make him "case hardened sophisticate in crime" and, thus, unlikely to be overwhelmed when confronted by the police. (See Gonzalez, 39 NY2d at 129.) To the contrary, the arresting Officer testified that Mr. Freeman was perceptibly nervous when he was stopped in the dark of night outside of his home: He was "very tight, as if, to me, he were nervous" and he was "talking kind of quickly, stuttering." (H9.) Second, Mr. Freeman was not only in custody (see Gonzalez, 39 NY2d at 128) and in handcuffs (id. at 129), but he was taken in a most sudden and overwhelming way. Within two minutes of the Officer's initial approach, which was ostensibly based on simple automobile equipment violation, Mr. Freeman had been frisked, dispossessed of his keys, handcuffed and locked in the back of a patrol car. Also within that two minutes, the police ran a record check and determined that Mr. Freeman could be charged with unlicensed operation. Officer Wengert acknowledged that two minutes after his initial approach, Mr. Freeman was not only detained, but formally under arrest. (H42-43.) The hearing court and the Appellate Division majority gave no significance to these facts, even though New York and federal law recognize that this demonstration of authority and restriction of liberty has a significantly coercive effect. (See Gonzalez, 39 NY2d at 128 ["the immediate events of an arrest ... engender an atmosphere of authority ordinarily contradictory of a capacity to exercise a free and unconstrained will"]~ id. at 128 [handcuffs are a "significant factor in determining whether [an] apparent consent was but a capitulation to authority"]; People v Packer, 49 AD3d 184, 188 -7- [1st Dept 2008] [holding that the immediately preceding seizure and frisk of the defendant made it untenable to "conclude that the People met their burden to show that defendant's consent was not the product even of 'implicit' or 'subtle' coercion"] aff'd 10 NY3d 915 [2008]; United States v Washington, 490 F3d 765, 772-73, 776 [9th Cir 2007] [holding that the manner in which the officer frisked the defendant and directed his movements, leading him away from his car, contributed to an air of authority inconsistent with voluntary consent].) Third, Mr. Freeman was initially outnumbered by the police two-to-one, and later by a more significant margin as backup officers arrived (see Gonzalez, 39 NY2d at 128 [impact of custody is increased if the defendant is confronted by a large number of police agents]; Washington, 490 F3d at 772-73, 775 [citing the fact that the defendant was outnumbered two-to-one as a factor weighing against a fmding of voluntary consent]), and there is no indication that, on this dark and cold night, any member of the public might have been nearby to witness what might happen to him. (See Washington, 490 F3d at 773, 775 [citing the fact that the stop occurred at night as an additional factor].) Fourth, Mr. Freeman was evasive prior to giving consent. (See Gonzalez, 39 NY2d at 129.) When initially approached, he removed his sweatshirt and turned back to his car to lock it inside. Officer Wengert testified that this was suspicious, indicating an attempt to hide something. (H9, H36.) Then, Mr. Freeman told the police that the car was not his and that to his knowledge there were no drugs in it, when in fact, marijuana would be found under the driver seat and within the sweatshirt that Mr. Freeman had just removed. (Hl0-11.) Fifth, when the police requested to enter his home, they made the request in a coercive manner, which was not counterbalanced by advice that Mr. Freeman had any right or power to stop them from entering. (See Gonzalez, 39 NY2d at 130.) Mr. Freeman was told that he would be taken to jail and that he would not be able to bail out unless the police went inside his home to obtain his identification. To the extent that this indicated he had any choice, it was a choice between submission or indefmite detention. In addition, Officer Wengert asked not if Mr. Freeman would like to go inside, accompanied by an officer, but whether Mr. Freeman "would have a problem accompanying me inside the house" (Hl2, H14; see H52-53). This phrasing would not have provided any assurance that Officer Wengert, who already had Mr. Freeman's keys, was not intent on going inside regardless of what Mr. Freeman wanted. Instead, this phrasing could reasonably be taken to offer Mr. Freeman a choice between coming along or letting Officer Wengert go in alone. The critical point here is that this way of framing the request -8- made it especially significant that the police did not provide counterbalancing advice that Mr. Freeman did, in fact, have a right to withhold consent. In sum, every one of these factors points in favor of the conclusion that Mr. Freeman's decision to accompany the officers inside of his home was a submission to their authority, rather than a true act of the will. The Appellate Division's majority opinion does not address these facts and, instead, cites only the fact that Mr. Freeman "cooperated" by verbally indicating which key would open his door. (See People v Freeman, Slip op. at 1, 141 AD3d 1164, 1165 [4th Dept 2016]; H14.) The Hearing Court similarly focused on this purported act of cooperation. (See Appendix at 21-22.) Neither decision engaged in discussion of the other factors in the Schneckloth-Gonzalez framework. In addition, the emphasis on the single act of indicating which key to use ignores the surrounding circumstances that bear on the significance of that act, such as the fact that the keys had been seized by the police; that Mr. Freeman's purported consent had already been elicited, and he was now waiting for the resolution of this entry in handcuffs, under arrest, flanked by police, wearing only a T -shirt in the cold; and that the entry to his house had been presented to him as the only way to end this encounter and avoid being brought to jail. Refusing to point out which key opened the door would have been a futile act It would not have prevented entry, and it only would have prolonged his arrest and, perhaps, annoyed the officers who had control of his life and liberty. In light of these circumstances, there is no discernible difference between "cooperation" and continued submission. Set in context and against all of the other factors described above, this alleged act of "cooperation" is insufficient as a matter of law to prove voluntariness. Under the lower courts' holdings here, virtually any minor act that can be described as cooperative is, regardless of the surrounding context, sufficient on its own to demonstrate the voluntariness of consent. This undercuts the mandatory totality of the circumstances analysis, and it is a significant step beyond prior holdings that involved much less ambiguous behavior and additional supporting circumstances. (See People v Nance, 132 AD3d 1389, 1389 [4th Dept 2015] [third party consenter "cooperated with the search by drawing the officers' attention to the location where the gun was recovered"]; People v Mccray, 96 AD3d 1480, 1481 [4th Dept 2012] [defendant cooperated by "tossing his apartment keys to the searching officer"]; People v DePace, 127 AD2d 847, 849 [2d Dept 1987] [defendant was not in custody, volunteered his consent, and gave the officer his keys to facilitate the search].) The lower courts' narrow focus on a single ambiguous fact should be rejected, as it undermines the broader analysis of the circumstances required under Gonzalez and Schneckloth. This approach also -9- fails to "[r]ecogniz[e] the inherent potential for intimidation and coercion in police initiated encounters," and it significantly weakens what is supposed to be the People's "daunting burden" to prove voluntariness from the totality of the circumstances (see People v Packer, 49 AD 3d at 187, citing People v Hollman, 79 NY2d 181, 191-92 [1992] and Gonzalez, 39 NY2d at 128). In this respect, the present case is analogous to Sierra, where the lower courts relied on facts that were arguably supportive, but insufficient on their own to support a finding of reasonable suspicion. (See Sierra, 83 NY2d at 930 [holding that flight and grasping at the waistband is, as a matter of law, insufficient to carry the burden of proving reasonable suspicion].) Here, similarly, Mr. Freeman's act of verbally indicating which key the police should use is insufficient, as a matter of law, to carry the People's burden of proving that his consent was voluntary. Mr. Freeman's motion to suppress should have been granted. The totality of the circumstances cannot support the conclusion that Mr. Freeman was acting voluntarily when he agreed to accompany the police into his home. The ensuing search inside, addressed separately below, was the fruit of that illegal entry, as were his subsequent statements admitting possession of the contraband found inside. Because the evidence must be suppressed, the plea must be vacated, and the charges must be dismissed. c. The Evidence is Insufficient as a Matter of Law to Carry the People's Burden to Prove that Mr. Freeman Voluntarily Consented to a Search of his Home. The situation is even clearer with respect to the subsequent search. Once inside, the circumstances of Mr. Freeman's custody became only more coercive. First, expecting to obtain his identification and be released, Mr. Freeman was instead directed to sit down, told that he was under arrest, and informed that the situation could get worse for him if he did not cooperate: "I explained this might cause a problem for him and I would like to, you know, have him cooperate with me. It doesn't have to be a big deal." (H14-15.) The implication, of course, is that a failure to submit and cooperate could tum his already miserable situation into "a big deal." The vagueness of this threat left it open for Mr. Freeman to wonder whether Officer Wengert was referring to the prospect of more aggressive charging and prosecution later, a more physically threatening deterioration of his immediate circumstances, or both. Either way, this pressuring suggestion was, again, not offset by any advice that he could safely and effectively withhold consent. - 10 - Next, Officer Wengert read Mr. Freeman his Miranda warnings, clearly indicating that this was no longer an attempt to help Mr. Freeman avoid jail, if it ever was, but a custodial interrogation and search for evidence of additional crimes. There is no evidence to suggest that Officer Wengert's implicit warning to be cooperative and this escalation of the investigation somehow reassured Mr. Freeman, made him any less nervous, or any more capable of resistance. And of course, Mr. Freeman remained in handcuffs, alone and outnumbered by the police, throughout this worsening encounter. Finally, defeating any suggestion that he wanted to be cooperative, the record shows that Mr. Freeman continued to be evasive. He lied to Officer Wengert about keeping all of his drugs in the basement (HIS, H22), when in fact the drugs and gun at issue in this case were located in his room (H21-22). Thus, Mr. Freeman apparently hoped he might prevent a search of his room through misdirection, but he was unable or unwilling to try to prevent that search by taking the bolder step of refusing Officer Wengert's request for consent. Again, every one of the relevant considerations weighs strongly against a finding that the consent was a voluntary of an unconstrained will. Moreover, with respect to this search, there are no counterbalancing facts. Neither the hearing court, nor the Appellate Division majority identified a single fact or circumstance supporting its fmding that this consent was voluntary. (See Freeman, Slip Op at 1, 141 AD3d at 1165; Appendix at 23.) Nor did they attempt to explain away the facts above. Both decisions offer no defense of their summary conclusion that this consent was a voluntary act. Because all of the relevant factors and considerations weigh against a finding of voluntariness, and because it was the People's burden to prove voluntariness, this Court should conclude that the consent was involuntary as a matter of law. A contrary conclusion would make the Gonzalez and Schneckloth framework meaningless, as not a single factor in that framework can be marshalled in support of the lower courts' findings. Based on this conclusion the physical evidence found in the apartment and the subsequent statements should be suppressed, the conviction should be vacated, and the charges dismissed. 3. When the Police Request Consent to Search From a Suspect in Custody, the Suspect Should be Advised of the Right to Withhold Consent. If there is any doubt about whether Mr. Freeman's consents should be deemed involuntary under the existing legal framework, this Court should instead consider whether that framework is, in fact, a constitutionally adequate method for - 11 - evaluating consent elicited from a defendant in police custody. The Court should consider whether it is time to require that suspects in custody be advised of their right not to consent, just as they must be advised of their right to remain silent.5 A clear approach to the voluntariness of consent would ask whether the consenter is making an uncoerced choice between known alternatives. On this approach, the prosecution would have the additional burden to prove that the consenter either knew or was advised that he had a right to refuse consent. Thus far, federal and New York state courts have refused to require such proof. Instead, whether or not a defendant has been advised of this right is treated as just one relevant factor for consideration, even if he is in custody. (See United States v Watson, 423 US 411, 423 [1976]; Schneckloth, 412 US at 248-49; Gonzalez, 39 NY2d at 130). As a result, under both federal and state constitutional law, suspects in custody must be advised of their right to remain silent before the police may try to elicit incriminating statements, but they need not be advised of any analogous right before the police may try to elicit consent to a search for physical evidence. This is not a distinction born from reasoned constitutional argument, but an anomaly created by an undefended misapplication of the carefully limited holding in Schneckloth. The issue of whether or not police must advise defendants of their right to withhold consent to a search was squarely addressed in Schneckloth (412 US 218). The specific question before the Court was whether, in the Fourth Amendment context, the prosecution must prove that the consenter knew he could freely and effectively withhold his consent to a search. The Supreme Court held that the prosecution must prove "voluntariness," but that in this context there is no "infallible touchstone" (id. at 229) and no "talismanic definition of 'voluntariness'" (id. at 224). Instead, standards for voluntariness must reflect "an accommodation of the complex of values" on competing sides (id. at 224-25). What this "accommodation" meant, in plain terms, was that the clear and principled understanding of voluntariness - on which the consent reflects a free and knowing choice between alternatives (see id. at 221-22) - would be rejected based on concerns that it would frustrate law enforcement's "legitimate need for [consent] s It may be objected that this argument was not made in the courts below. However, the issue is preserved by the objections and arguments that Mr. Freeman's consent was involuntary and that the failure to advise him of any effective right to withhold consent was a significant factor showing that involuntariness. The argument here proposes a legal rule that would address that objection by giving greater significance to the failure to advise. Proposing that particular legal rule in the lower courts would have been futile, as those courts were strictly bound by Gonzalez. - 12- searches" (id. at 227). To put it simply, the Court feared that informing suspects of their right to withhold consent would prevent consent searches from being an effective law enforcement tool. In a critical part of its argument, the majority opinion speculated that it would be a "near impossibility" for the prosecution to carry the burden of proving that the defendant knew of his right to refuse consent, and thus, such a requirement "would, in practice, create serious doubt whether consent searches could continue to be conducted." (/d. at 229-30; see id. at 231 ["it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning"].) Based on these pragmatic concerns, the Court refused to require that suspects be advised of their right not to consent to a search. The Court's impracticality argument may initially strike the contemporary reader as strange and unconvincing. Mter decades of experience with Miranda, prosecutors and police have found little difficulty in proving that warnings have been given. A bit of police testimony and a standard issue waiver card, properly filled out and preserved, are typically sufficient In fact, even at the time, the Schneckloth Court was cognizant of the conflict between its impracticality argument and its requirement of Miranda warnings in the custodial context. Addressing the issue, the Court carefully limited its ruling to the non-custodial context, and it emphasized why that setting, in particular, made warnings impractical: "Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person's home or office, and under informal and unstructured conditions. The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning ... . mhese situations are still immeasurably far removed from 'custodial interrogation' where, in Miranda v Arizona . . . we found that the Constitution required certain now familiar warnings as a prerequisite to police interrogation." (Schneckloth, 412 US at 231-32.) In a footnote, the Court made the limitation of its ruling explicit: "the present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody." (/d. at 240 n29.) The Court reemphasized this point in its conclusion: "Our decision today is a narrow one. We hold only that when the subject of a search is not in custody ... the subject's knowledge of a right to refuse is a factor to be taken into account, [but] the prosecution is not required to demonstrate such - 13 - knowledge as a prerequisite to establishing voluntary consent." (!d. at 248-49 [emphasis added].) Three years later, Schneckloth's refusal to require warnings was extended to the custodial context, without defense or explanation. In United States v Watson (423 US 411 [1976]), the Court addressed the voluntariness of a consent elicited in a custodial setting, and it simply ignored the express limitation on Schneckloth's holding. The Watson majority's entire discussion of the issue is as follows: "[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment is not to be given controlling significance." (/d. at 424.) The only indication that anyone on the Watson Court recognized that this passage reflected a novel extension, at odds with Schneckloth's own rationale, comes from the dissent: "The Court turns next to the consent-to-search question last dealt with in Schneckloth .... Without acknowledgment or analysis, the Court extends the scope of that decision to the situation expressly reserved in Schneckloth, and creates a rule inconsistent with Schneckloth's own analysis. The Court takes both steps with a remarkable lack of consideration of either the facts of this case or the constitutional questions it is deciding." (ld. at 433-34 [Marshall, J., dissenting]; see id. at 456-58.) To our knowledge, Watson's extension of Schneckcloth has not received any reconsideration or defense in subsequent Supreme Court decisions. Three months after Watson was decided, this Court made a similar, undefended move. Citing Watson, the Gonzalez Court held that whether the subject is in custody is, itself, one of the non-controlling factors to be considered. (Gonzalez, 39 NY2d at 128.) The Court then cited Schneckloth to support the claim that whether or not a defendant was advised of the right to withhold consent is also a relevant, but non-controlling factor. (/d. at 130.) The Court did not discuss the fact that Schneckloth's holding and reasoning were limited to non- custodial investigations. Finally, the Court also cited People v Kuhn (33 NY2d 203 [1973]), a case which was like Schneckloth in that involved only a non- custodial request for consent. Thus, without discussion, the Court effectively - 14. extended the Schneckloth holding to the custodial setting, just as Watson had done in the federal case law. In sum, New York and federal courts have taken a constitutional rule - the rationale for which specifically depended on practical concerns about limiting police flexibility in non-custodial investigations - and without discussion or defense, extended it to apply equally to custodial requests for consent. This undefended extension is overdue for consideration. Four considerations point to the need to require advice in the custodial context. First, it is well established that the custodial setting is inherently coercive. (See Miranda v Ariz., 384 US 436, 458 [1966] ["Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."]; Gonzalez, 39 NY2d at 128.) However, the totality of the circumstances test, coupled with the limited scope of this Court's review, gives the lower courts broad discretion to ignore or discount this coercive impact. Second, the coercive atmosphere engendered by an arrest and custodial request for consent, give the police great power to undercut a critical constitutional protection. This court bas recognized that the rights to privacy enshrined in the Fourth Amendment and Article I § 12 of the New York Constitution have the same importance as the right against self-incrimination: "The defendant's rights are no less at stake and the advice of counsel no less important if the police seek a relinquishment of defendant's constitutional right to be secure against unreasonable searches and seizures than if they seek a waiver of his privilege against self incrimination." (People v Johnson, 48 NY2d 565, 568-569 [1979].) In Johnson, the Court held that an affumative request for counsel must be honored before the police may continue to seek consent, but it did not consider whether a custodial request for consent should prompt its own warnings. Third, the impact on this constitutional right is not evenly spread. It is not the privileged, the educated, or the confident who are most likely to feel compelled to comply with the police. It is the most vulnerable suspects, those who have legitimate reasons to fear that resistance may be a threat to their immediate bodily safety. Because of that fear, the very communities that have been targeted for policing are more easily deprived of the constitutional protections that are - 15- supposed to protect their bodies and their homes from police intrusion. Thus, there should be significant concerns that the use of consent as an investigative tool is particularly prone for abuse, and that it is likely to have systematically unfair impacts. Fourth, while the problems with consent searches exist in both the custodial and non-custodial setting, the practical concerns that drove the Schneckloth Court do not apply to the custodial setting. There is simply no legitimate, practical reason why a brief warning cannot be issued when an officer seeks to elicit consent after the defendant has been taken into custody. Decades of experience with Miranda have shown this. Accordingly, this Court should find that where a defendant has been placed in police custody, and where an officer makes an effort to elicit consent to search a constitutionally protected area, the officer must advise the defendant that he has a right to withhold consent. In the absence of such advice, a consent elicited in these circumstances is involuntary. Under this rule, the consents elicited in this case are plainly involuntary. Mr. Freeman was under arrest at the time of both consents. But he was never advised that he had any right or freedom to withhold his consent. Therefore, :Mr. Freeman's motion to suppress should be granted and the charges based on the evidence obtained as a result of these consents should be dismissed. 4. Conclusion The decision of the Appellate Division should be reversed. Mr. Freeman's motion to suppress should be granted, b.is conviction should be vacated, and the charges based on the evidence obtained as a result of these consents should be dismissed. In the alternative, Mr. Freeman requests an opportunity for full briefing and argument on the issues presented in this appeal. jd encs Respectfully submitted, I Ll 1'-- }~es A. Hobbs / Assistant Public Defender - 16 - pc: Robert Shoemaker, Esq. Assistant District Attorney Darrion Freeman - 17 -