The People, Respondent,v.Scott F. Doll, Appellant.BriefN.Y.September 3, 2013To be argued by: Timothy P. Murphy, Esq. Buffalo, New York (716) 849-1333, ext. 323 Estimated time: 30 minutes STATE OF NEW YORK : COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Vs. SCOTT F. DOLL, Defendant-Appellant. BRIEF FOR APPELLANT Genesee County Indictment No. 5222 Appellate Division (4 ’1’ Dept.) Docket No. KA 11-00150 Respectfully submitted, PAUL J. CAMBRIA, JR., ESQ. TIMOTHY P. MURPHY, ESQ. LIP SITZ GREEN SCIME CAMBRIA, LLP 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 Phone: (716) 849-1333 Fax: (716) 855-1580 (norfor service) E-mail: tmurphylg1aw.com (zoL for serviced Brief completed: November 19, 2O12 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .vi STATEMENT OF JURISDICTION ............................................................. 1 QUESTIONS PRESENTED ......................................................................2 NATURE OF THE CASE: THE SCOPE OF NEW YORK’S EMERGNENCY DOCTRINE ..........................................................................................4 PROCEDURAL HISTORY ........................................................................ STATEMENT OF FACTS .........................................................................7 1. Testimony at Suppression Hearing ..................................... 9 A. Suspicious Person Report ....... ................................ 10 B. In Custody .......................................... ............... .10 C. Purported Emergency: Custodial Interrogation Without Miranda.................................................12 D. Mr. Doll’s Invocation of Counsel.............................13 E. Officer Reeves Removes Mr. Doll from the Vehicle: More Elaborate Custodial Interrogation . ... . - .13 F. Investigator Kautz: The Third Interrogator at North Lake Road................................................13 G. Evidence Seized.................................................14 H. Purported Trespass Investigation.............................14 1. 1.- 30 AM: The Body ls Found.................................15 J. After 3 AM: More Interrogation at the Station.............15 U. Testimony at Trial.......................................................16 A. Statements at North Lake Road..............................17 1 B. Physical Evidence .18 C. The Defense Blood Spatter Expert............................19 D. The Stationhouse Statements..................................20 E. Mr. Doll’s Testimony...........................................20 ARGUMENT ........................................................................................22 POINT I ..............................................................................................22 APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, DUE PROCESS, COUNSEL AND TO BE FREE FROM COMPELLED SELF INCRIMINATION (N.Y. CONST. ART I, §6; U.S. CONST, AMENDS. V VI AND XIV; C.P.L. 60.45), AS HE INVOKED HIS RIGHT TO COUNSEL, AND WAS SUBJECTED TO CUSTODIAL INTERROGATION WITHOUT BEING AFFORDED MIRANDA WARNINGS. NO PUBLIC SAFETY OR EMERGENCY EXCEPTION APPLIED, AND THE STATEMENTS WERE INVOLUNTARILY MADE. I. The Decisions Below...................................................23 II. The Right to Counsel in New York..................................27 A. Miranda Violations...........................................28 B. Invocation of Counsel.......................................31 111. Puorted Emergency ................................................. 33 IV. Federal and State Jurisdictions ................................... .... 41 V. Once the Body is Found..............................................46 VI. Involuntary Statements................................................52 VII. Conclusion..............................................................53 POINTII .......................................................................................... 56 11 APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES (NY CONST. ARTICLE I, §§ 6 AND 12; U.S. CONST, AMENDS. IV, VI AND XIV) WERE VIOLATED BY APPELLANT’S PRE-WARRANT ARREST AND SUBSEQUENT TRANSPORT TO THE STATION, AS THERE WAS NO PROBABLE CAUSE. I. Street Encounters........................................................57 II. The Decisions Below: Insufficient Evidence of an Emergency .............................. 59 Ill. The Arrest in Our Matter ..................................... .......... 63 IV. No Probable Cause .................................................... ...65 V. Respondent’s Argument Before the Appellate Division: The Meaning of Dunaway .............................................. 66 VI. Conclusion...............................................................68 POINT III...........................................................................................73 APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES (N.Y. CONST ARTICLE I, §’ 6 AND 12; US. CONST., AMENDS IV VIAND XIV) WERE VIOLATED BY LAW ENFORCEMENT’S PRE-WARRANT SEARCH OF THE VEHICLE IN APPELLANT’S POSSESSION AND OTHER PHYSICAL EVIDENCE. FURTHER, THE SUBSEQUENT WARRANTS WERE NOT BASED UPON PROBABLE CAUSE. I. Pre-Warrant Seizure of Physical Evidence Were Illeg ............74 A. The Law..........................................................74 B. No Exception to the Warrant Rule at Bar....................76 II. The Warrant Application Regarding the Mother’s Van and Mr. Doll’s Cell Phone Lacked Probable Cause and Invalidated the Subsequent Warrants................................................78 CONCLUSION ............................... ........................... .......................... 80 111 TABLE OF AUTHORITIES CASE LAW Arizona v. Gant, 556 U.S. 332 (2009)...................................................75 Benson v. State, 698 So. 2d 333 (Fla. Dist. Ct. App. 1997)..........................44 Brigham City, Utah v. Stuart, 547 U.S. 398 (2006)...............................60, 61 Brown v. State, 982 So.2d 565 (Ala. Crim. App. 2006)...........................43-44 Carroll v. United States, 267 U.S. 132 (1925) ......................................................75 Chambers v. Maroney, 399 U.S. 42 (1972).....................................................77, 78 Chimel v. California, 395 U.S. 752 (1969)...........................................................78 Commonwealth v. Kitchings, 40 Mass. App. 591 (1996).............................44 Connecticut v. Barett, 479 U.S. 523 (1987)..........................................................31 Davis v. Mississippi, 394 U.S. 721 (1969)..............................................67 Davis v. United States, 512 U.S. 458 (1994) .......................................31-32, 54-55 Dunaway v. New York, 442 U.S. 200 (1979) ................3, 57-59, 64, 66, 67, 69, 70 ,ici rTQ A’77(1OQ1\ J-dUvvaik.LZI V. L_L1J1ICL, 1J I J . b.). t! I I J 0 1) ............................................................ .J.) Hubbard v. State, 500 So.2d 1204 (Ala. Crim. App. 1986)...........................44 Johnson v. United States, 333 U.S. 10(1948).......................................................75 Johnson v. Zerbst, 304 U.S. 458 (1938).................................................34 Lamb v. State, 251 P.3d 700 (Nev.-201 1)...............................................43 Mapp v. Ohio, 367 U.S. 643 (1961)..........................................................57, 69, 79 Michigan v. Fisher, 558 U.S. 45 (2009) ..................................... 24,40-41,62 Michigan v. Jackson, 475 U.S. 625 (1986) ...........................................................31 lv Miranda v. Arizona, 384 U.S. 436 (1966) .28,29,31,55 New York v. Quarles, 467 U.S. 649 (1984)..................................26, 29, 37, 39, 42 Payton v. New York, 445 U.S. 573 (1980) ...........................................................74 Pennsylvania v. Labron., 518 U.S. 938 (1996)..........................................75 People v. Adams, 53 N.Y.2d 1 (198 1) ............................................................ 75, 78 People v. Adams, 225 A.D.2d 506 (jSt Dept 1996).....................................30 People v. Allen, 240 A.D.2d 418 (2d Dep’t 1997)................................................30 People v. Anderson, 42 N.Y.2d 35 (1977) ............................................................52 People v. Bigelow, 66 N.Y.2d 417 (1985) ......................................................57, 62 People v. Bing, 76 N.Y.2d 331 (1990)..................................................................31 People v. Blasich, 73 N.Y.2d 673 (1989)..............................................................75 People v. Boyd, 3 A.D.3d 535 (2d Dep’t 2004)..............................6, 25, 29, 35, 37 People v. Brown, 96 N.Y.2d 80 (2001)..................................................77 People V. Buggenhagen, 57 A.D.2d 466 (4th Dep’t 1977).....................................76 Peonlev. Burdo. 91 N.Y.2d146 (1997). ..... ’U People v. Burgos, 255 A.D.2d 199 (1 Dep’t 1998)...................................37 People v. Cantor, 36 N.Y.2d 106 (1975)...............................................................57 People v. Chatman, 122 A.D.2d 148 (2d Dep’t 1986).................................37 People v. Chestnut, 51 N.Y.2d 14 (1980)............................................29-30 People v. Clark, 45 N.Y.2d 432 (1978).................................................................76 People v. Cotton, 280 A.D.2d 188 (4th Dep’t 2001)..............................................31 People v. Cressy, 47 Cal. App.4th 981 (1st App. Dist. 1996)...........................43 V People v. Cunningham, 49 N.Y.2d203 (1980) .28, 31-34 People v. Dallas, 8 N.Y.3d 890, 891 (2007).............................................60 People v. Davis, 75 N.Y.2d 519 (1990) ................................................................ 52 People v. Davis, 46 Cal. 4 ’ 539 (2009)..................................................45 People v. DeBour, 40N.Y.2d 210 (1976) ...................................................3, 57, 58 People v. Diaz, 81 N.Y.2d 106 (1993)............................................................58, 77 People v. Doll, 98 A.D.3d 356 (4th Dep’t 2012) .............. 5-6, 8,12-13, 16, 23-28, 31, 35-36, 47, 59-62, 65, 66, 69, 76 People V. Eldridge, 213 A.D.2d 667 (2d Dep’t 1995)...........................................50 People v. Esposito, 68 N.Y.2d 961 (1986)............................................................31 People v. Ferry, 152 A.D.2d 952 (4th Dept 1989)................................................58 People v. Gatling, 38 A.D.3d 239 (1st Dep’t 2007).....................................64 People v. Gonzalez, 39 N.Y.2d 122 (1976).........................................64, 78 People v. Grice, 100 N.Y.2d 318 (2003) .................................................31 People v. Gulca, 18 A.D.3d 478 (2d Dep’t 2005)..................................29-30 I C’ 11 A r n--’+ 1000 crUZIn1, ., i- .. , . L. .. , ., People v. Harris, 57N.Y.2d 335 (1982).............................................49, 51 People v. Hawkins, 254 A.D. 96 (1st Dep’t 1998)...................................37, 41 People v. Hicks, 68 N.Y.2d 234 (1986)........................................ 57, 58, 63, 70 People v. Hobson, 39 N.Y.2d 479 (1976)...................................28, 31-32, 42 People v. Holloman, 79N.Y.2d 181 (1992).............................................58 People v. Hunfiy, 15 N.Y.2d 72 (1965).................................................52 People v. Jakubowski, 100 A.D.2d 112 (0Dept 1984).................................78 vi People v. Khan Li, 50 A.D.3d 284 (1st Dep’t 2008) . 70 People v. Kimes, 37 A.D.3d 1 (1st Dep’t 2006).........................6, 24, 29, 35, 37 People v. Krorn, 61 N.Y.2d 187 (1984)...2, 4, 5, 22-24, 33-39, 41-42, 46, 47, 48, 65 People v. Labberte, 246 Iii. App.3d 159 (2d Dist. 1993)...............................46 People v. Leg gett, 75 A.D.3d 609 (2d Dep’t 2010).............................................59 People v. Log, 243 A.D.2d 920 (3d Dep’t 1997)......................................66 People v. Lopez, 16 N.Y.3d 375 (2011)..................................................31 People v. Lubanski, 148 A.D.2d 947 (4 Dep’t 1989).................................31 People v. Manzella, 150 Misc.2d 956 (Sup. Ct. Erie Co. 1991)......................35 People v. Mitchell 39 N.Y.2d 173 (1976)...............................3, 35, 60, 61, 63 People v. Molina, 248 A.D.2d 489 (2d Dep’t 1998)...........................25, 37, 65 People v. Molnar, 98 N.Y.2d 328 (2002)....................................60,68-69,75 People v. Ociuendo, 252 A.D.2d 312 (1st Dep’t 1999)..................................37 People v. Orlando, 56 N.Y.2d 441 (1982)................................................75 People v. Parker, 49 A.D.3d 974 (3d Dep’t 2008)......................................64 People v. Parks, 120 A.D.2d 920 (4th Dept 1896).......................................28 People v. Parris, 136 A.D.2d 882 (4th Dep’t 1988)......................................70 People v. Perez, 293 A.D.2d 329 (1st Dep’t 2002)...............................28, 65, 68 People v. McBride, 14 N.Y.3d 440 (2010).......................................................68 People v. P.J. Video, 68 N.Y.2d 296 (1986)........................................41,63 People V- Porter, 9N.Y.3d 966 (2007)....................................................31 People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996).....................................71 VII People v. Ray, 65 N.Y.2d 282 (1985) .47-48 People v. Ready, 61 N.Y.2d 790 (1984)..................................................76 People v. Reed, 78 A.D.3d 1481 (4 Ih Dep’t 2010).......................................37 People v. Robinson, 282 A.D.2d 75 (1 st Dep’t 2001)..............................64, 67 People v. Robinson, 205 A.D.2d 836 (3d Dept 1994).................................76 People v. Rodney, 85 N.Y.2d 289 (1995).................................................29 People v. Rodriguez, 69N.Y.2d 159 (1987).............................................71 People v. Rogers, 48N.Y.2d 167 (1979)...................................27,31,33,38 People v. Ryan, 12 N.Y.3d 28 (2009)................................................58, 67 People v. Samuels, 49 N.Y.2d 218 (1980)................................................28 People v. Settles, 46N.Y.2d 154 (1978).............................................27-28 People v. Shulman, 6N.Y.3d 1(2005)...................................................57 People v. Sobolof, 109 A.D.2d 903 (2d Dept 1985)................................48, 50 People v. Steward, 88 N.Y.2d 496 (1996)................................................31 People v. Stoesser. 53 N.Y.2d 648 (1981)................................................49 People v. Strickland, 169 A.D.2d 9 (3d Dep’t 1991)...................................30 People v. Sweezcy, 215 A.D.2d 910 (3d Dep’t 1995)..................................77 People v. Swoboda, 190 Misc.2d 214 (Cnm. Ct. Queens Co. 2002).............37, 68 People v. Taylor, 302 A.D.2d 868 (4th Dep’t 2003)....................................37 People v. Thomas A.D.2d 569 (2d Dep’t 1992)..................................29 People v. Valerio, 274 A.D.2d 950 (4 t’Dep’t 2000)...................................70 People v. Vennor, 176 A.D.2d 950 (01 Dep’t 1991)...................................76 viii People v. Weatherspoon, 66 N.Y.2d 973 (1985) .52 People v. West, 81 N.Y.2d 370 (1993).......................................27, 32-33, 49 People v. ’Wheeler, 2 N.Y.3d 370 (2004).................................................75 People v. White, 35 A.D.3d 1263 (4th Dep’t 2006)......................................70 People v. William II, 98 N.Y.2d 93 (2002)...............................................75 People v. Yancy, et al., 86 N.Y.2d 239 (1995)...........................................75 PeopIp v. Yukl, 25 N.Y.2d 585 (1969)......................................................28 People v. Za1vsky, 82 A.D.3d 1138 (2d Dep’t 2011)..............................26, 47 Smith v. State, 646 So.2d 704, 707-708 (Ala. Crim. App. 1994)...................44-45 State v. Lopez, 139 N.H. 309 (1994)......................................................44 State v. Ramirez, 178 Ariz. 116 (1994).....................................................45 State v. Turner, 716 S.W.2d 462 (Mo. App. 1986).....................................44 Terry v. Ohio, 392 U.S. 1 (1968)..........................................................58 United States v. Brady, 819 F.2d 884 (9 th Cir. 1987)...................................43 TInitid Stat&.s v Cirj110 16 F3d 1046 (9th Cir 1994)..................................47. United States v. Jones, U.S. , 132 S. Ct. 945 (2012)............................71 United States v. Mobley, 40 F.3d 688 4th Cir. 2003)..................................42 United States v. Padilla, 819 F.2d 952 (10th Cir. 1987)................................43 United States v. Reyes, 353 F.3d 148 (2d Cir. 2003)...................................43 United States v. Simpson, 974 F.2d 845 (7th Cir. 1992)............................42-43 United States v. Talley, 275 F.3d 560 (6’h Cir 2001)...................................43 Withrow v. Williams, 507 U.S. 680 (1993) ........................................... .52-53 Ix Wong Sun V. United States, 371 U.S. 471 (1963) . 57,69 Yarborough v. Alvarado, 541 US. 652 (2004)..............................................52 STATUTES C.P.L. 60.45 ............................................................................... 2,22, 52 C.P.L. 70.10......................................................................................57 C.P.L. 140.10.....................................................................................57 C.P.L. 140.50 ................................................................................. 57, 58 C.P.L. 450.10 (1).................................................................................1 C.P.L. 450.90 (1).................................................................................1 C.P.L. 470.35 ....................................................................................1 C.P.L. 690.10.....................................................................................78 C.P.L. 690,35....................................................................................78 C.P.L. 690.40 ....................................................................................78 -Penal Law ’125.25(1) ..... .......... ................ ............ ..,., .......................... 5 CONSTITUTIONAL PROVISIONS N.Y. Const. Article I §6..........................................................2-3, 22, 56, 73 N.Y. Const. Article I §12................................................2-3, 41, 56, 61, 63, 73 U.S. Const., Amends, IV ..................................................... ......... 2-3,56,73 U.S. Const., Amends. V ...................................................................... 2,22 U.S. Const., Amends. VI.........................................................2-3, 22, 56, 73 U.S. Const., Amends. XIV.......................................................2-3, 22, 56, 73 x TREATISE Warrantless Search Law Desk Book, West Thompson, 2009 Edition, Ch. 20...........77 xi STATEMENT OF JURISDICTION This Court has jurisdiction to consider all of the issues presented herein, as there was extensive motion practice in County Court, and a combination Huntley / suppression hearing was conducted.’ See C.P.L. 470.35 (1), (2)(b); C.P.L. 450.90 (1); C.P.L. 450J0 (1). The motions are found in the Appendix ("App.") herein at pages 59 through 198. The hearing testimony is found at App, pages 208 through 345. County Court’s primary written suppression decision is at App., pages 388 through 400. QUESTIONS PRESENTED 1. Was appellant deprived of his state and federal constitutional rights to due process, a fair trial, counsel, and to be free from compelled self-incrimination (see N.Y. Const. Article I, §6; U.S. Corist., Amends. V, VI and XIV) by: (a) law enforcement’s continued interrogation of appellant, even after he had unequivocally invoked his right to counsel; (b) law enforcement’s custodial interrogation of appellant without affording him Miranda warnings; and (c) law enforcement’s interrogation of appellant under circumstances that produced involuntary statements (see C.P.L. §60.45)? Further, did the public safety or emergency exception (as set out in People v. Krom, 61 N.Y.2d 187 [1984]) apply here despite the police having no identified body, no missing person report, no confirmation that it was human blood observed on appellant (if it was blood at all), and no specific crime with which to charge appellant? Finally, even if the so-called public safety or emergency doctrine initially applied, was it legal for law enforcement to continue to elicit statements from appellant via a civilian agent. - - even after the so-called emergency had clearly dissipated? Following a suppression hearing, County Court denied appellant’s motion to suppress. The Appellate Division rejected appellant’s argument and affirmed. However, two justices dissented regarding the applicability of the so-called public safety or emergency doctrine. 2. Was appellant deprived of his state and federal constitutional rights to a fair trial, due process, and to be free from unreasonable searches and seizures (see, N.Y. Const. Article I, §§ 6 and 12; U.S. Const, Amends. IV, VI and XIV) by: (a) law enforcement’s 2 illegal detainment and transportation of appellant to the station for interrogation (without probable cause) in violation of Dunaway v. New York (442 U.S. 200 [1979]), People v. Mitchell (39 N.Y.2d 173 [1976]), and their progeny; and (b) law enforcement’s illegal detainment of appellant at the scene in violation of People v. DeBour (40 N.Y.2d 210 [1976]) and its progeny? Further, should all derivative evidence from this illegal conduct, including physical evidence and any purported statements made by appellant, have been suppressed as "fruit of the poisonous tree"? Following a suppression hearing, County Court denied appellant’s motion to suppress The Appellate Division affirmed appellant’s judgment of conviction. 3. Was appellant deprived of his state and federal constitutional rights to a fair trial, due process, and to be free from unreasonable searches and seizures (see, N.Y. Const. Article I, §§ 6 and 12; U.S. Const., Amends. IV, VI and XIV) by: (a) law enforcement’s illegal seizure of the vehicle in appellant’s possession, as well as other physical evidence, before a warrant was secured; and (b) law enforcement’s illegal search and seizure of the ,rphi,-’1,’ it, t,llrt’Q ii-,n ui11 nf1,pi t,h11Qir1 evrlcnre iiithr,iit ,, showing of probable cause to support the search warrants in question? Further, did the illegality of the first warrant invalidate the subsequent warrants? Finally, should all derivative evidence from this illegal conduct, including physical evidence and any purported statements made by appellant, have been suppressed as "fruit of the poisonous tree"? Following a suppression hearing, County Court denied appellant’s motion to suppress. The Appellate Division affirmed appellant’s judgment of conviction. 3 NATURE OF THE CASE: THE SCOPE OF NEW YORK’S EMERGENCY DOCTRINE The People seek to have this Court expand the bounds of our state constitutional jurisprudence, particularly the rule enunciated in People v. Krom, 61 N.Y.2d 187 (1984), regarding the propriety of law enforcement not affording Miranda warnings and ignoring a suspect’s invocation of counsel under the scenario of a purported emergency. No reported New York decision has ever condoned Miranda and the invocation of counsel being ignored based on circumstances like those at bar. Appellant Scott Doll was approached by the police as he as walking on North Lake Road in Genesee County shortly before 9 p.m. on a cold February evening in 2009. Th e suppression issue here centered around the police observing potential, yet sporadic, blood on Mr. Doll’s body, as well as on his clothing (mostly in the lower leg area of his pants) and vehicle. The substance on Mr. Doll was not identified as human blood until well after the arrest. There had been no report of a missing person. Further, no New York decision has ever approved of a suspect in custody being transported for further indefinite investigation and (or) interrogation at a police station without the presence of probable cause, and based solely on such thin indicia of a potential and purported emergency. Moreover, the Court will find no reported decision condoning the questioning of a suspect in custody through a civilian agent where the suspect had already requested counsel and was deprived of Miranda - - without any remaining pretext of an ongoing emergency. •1 PROCEDURAL HISTORY On February 19, 2009, appellant Scott F. Doll was charged in a one-count Genesee County indictment with murder in the second degree (Penal Law §125.25 [1]). The charge arose from allegations that on or about February 16, 2009, Ivfr. Doll caused the blunt force trauma death of Joseph Benaquist in the Town of Pembroke. The proceedings were conducted in Batavia in Genesee County Court before the Honorable Robert C. Noonan. A Huntley / suppression hearing was held, with the court denying Mr. Doll’s suppression motions regarding purported statements, as well as seized physical evidence. Mr. Doll was placed on trial; commencing on May 3, 2010, and concluding on May 20, 2010. The jury convicted him as charged. Neither court below had an easy time with this case. On July 2, 2010, Mr. Doll was sentenced. Despite having heard the People’s proof against Mi. Doll regarding these horrific allegations, Judge Noonan elected to sentence appellant to the minimum prison term that the law allows: fifteen (15) years to life. ri.-. T1.iZ’)Al’) -i --- - --- 1 ,n LIIy u, .v i L, Luc. UI viun, u Ui. UI .i uwiIaI UJCJ L1u111L, ii! Wi eleven page opinion, affirmed Mr. Doll’s judgment of conviction by just a three to two vote. People v. Doll, 98 A.D.3d 356, 948 N.Y.S.2d 471; 2012 N.Y. App. Div. LEXIS 5377; 2012 NY Slip Op 5450 (4th Dep’t 2012). Therein the two-judge dissent stated in part that: In People v Krom (61 NY2d 187, 198-200... ), the Court of Appeals established the emergency exception that allows the police to question a suspect in custody despite the suspect’s request for an attorney. In that case, the police were searching for a victim who had been kidnapped and questioned the defendant, the suspected kidnapper (id. at 192-195). The Court held that it was permissible for the police to question the defendant in the absence of counsel because they were attempting to locate the victim (id. at 199- 200; see People v Kiines, 37 AD3d 1, 16... , Iv denied 8 NY3d 881... = rearg denied 9 N.Y.3d 881... [permissible to question the defendant even after she requested an attorney because an "individual’s life or safety (was) at stake"]). The facts of this case, however, are very different from Krom and donot warrant the application of the emergency exception. Most importantly, unlike in Krom, the police in this case were not aware that there was even a victim who needed police assistance. While we agree with the majority that the police did not need to know the victim’s identity (see e.g. People v Boyd, 3 AD3d 535, 536... , lv denied 2 NY3d 737... ), they at least had to know that there was a victim of a crime. The majority relies on the fact that the defendant had blood on his clothes to support the inference that there was a victim somewhere, but defendant explained that the blood on his clothes was from butchering deer, which is certainly a reasonable explanation. To allow the police to disregard a person’s invocation of the right to counsel based on the mere fact that the person has blood on his or her clothing is an unwarranted expansion of the emergency exception. Doll, 98 A.D.3d at 370-372 (emphasis added, and only official case law citations included). On August 20, 2012, Appellate Division Justice Eugene M. Fahey, one of the dissenting judges, granted Mr. Doll leave to appeal to this Court. Mr. Doll, who is presently serving his prison sentence, is represented here by Lipsitz Green Scime Cambria, LLP. The People of the State of New York are represented by Genesee County District Attorney Lawrence Friedman. STATEMENT OF FACTS. Scott Doll and Joseph Benaquist were good friends. Aside from being fellow correction officers, the two occasionally did a car transaction together. They were supposed to drop off a car on February 16th of 2009 at an auction site. When Mr. Benaquist failed to show up, Mr. Doll went to Mr. Benaquist’s home on Knapp Road in Pembroke. There he discovered his dying friend lying on his back, struggling to get up. Mr. Doll panicked. He knelt down in the pool of blood and tried to comfort his friend by holding his head. Blood spattered on him as a result. "The boy. The boy," were Mr. Benaquist’ s last words. Mr. Doll then got back in his mother’s van and parked it down the road. From there, he headed back to the bloody crime scene. The police, having received a ’suspicious person’ report in the area, stopped and questioned Mr. Doll as he walked on North Lake Road. Going through his head was whether his son ("The boy. .") had anything to do with this crime. So in his shock, he told the police he was just going for a walk. He did not mention the body. Mr. Doll was placed in the patrol vehicle and brought back to his mother’s van. Mr. Benaquist’s blood was on the van, and on Mr. Doll. There were specs of apparent blood on Mr. Doll’s face, upper body and hands, as well as on his mother’s nearby parked vehicle. However, the only significant collection of apparent blood on Mr. Doll’s body was found from the area of his knees on down. This is established by the photographs taken of Mr. Doll just after his arrest, and is consistent with the Appellate Division’s finding that Deputy Die! "observed what appeared to be wet blood 7 stains on the knees and thighs of defendant’s camouflage suit, and on defendant’s sneakers and hands" (Doll, 98 A.D.3d at 359). 2 Despite appellant invoking his right to counsel, 3 extensive custodial interrogation was conducted by multiple officers. And though there was no ’missing person’ report, the sight of what appeared to be blood on Mr. Doll prompted the police to effectively deem this to be such an emergency that the Constitution had to be suspended. Mr. Benaquist’s body was discovered in his driveway in the early morning hours of February 17th, thus ending the pretext of any emergency. Yet an hour and a half later, the police utilized a civilian to continue questioning Mr. Doll at the station - - in the presence of law enforcement. Mr. Doll never received Miranda warnings, nor was his request for counsel ever honored. 2 Attached to this brief is a Supplementary Appendiz, authorized by Court Rule 500.14(c), with photographs of Mr. Doll and his mother’s van on the night of his arrest. The images of Mr. Doll are taken inside a well lit police station, as opposed to the view an officer would have on a dark street. All of these images were moved into evidence at trial (i.e., People’s Trial Exhibits 12, 15, 16, 18-20, 22, 30, 32-34, 76-78, 80 and 81 respectively), and were made part of the record on appeal before the Appellate Division. These items are also made part of the Appendix before this Court. See App. 1763-1806. Where there are colored photographs, these are items provided to the defense in pre-trial discovery. As these items did not have ’evidence stickers’ attached, we have also included the black and white copy of the actual photos moved into evidence, with the ’evidence stickers’ located on the back of the photos. Appellant’s invocation of counsel was found to have been established by the Appellate Division below (see Doll, 98 A.D3d at 359360, 362-363) and was not disputed by the People before County Court below (App. 370). The People filed a C.P.L. 710.30 notice (App. 45-49), a suppression motion was filed and a hearing was conducted. The following facts in this section were established at the suppression hearing: I. Testimony at the Suppression Hearing A. Suspicious Person Report Deputy Diehl had only been on the job for a yer on the cold night of February 16, 2009. That night he was in uniform, and in a marked patrol vehicle. At approximately 8:44 p.m., Diehl was dispatched to Pembroke on a suspicious person report. There he observed Mr. Doll walking on North Lake Road, matching the description from the report, and wearing a one-piece camouflage suit (App. 218, 221-22, 225, 227-29, 250, 254). Diehl pulled over, prompting Mr. Doll to walk towards the vehicle. He did not flee or make any quick moves. A metal object fell from Mr. Doll’s pocket. He had a lug wrench in his right waistband pocket (App. 229-30, 255-56). Diehl asked Mr. Doll what he was doing. He replied that he was just walking. There were wet (apparent) blood marks on his knees. His sneakers were worn, with apparent blood on them (App. 234-3 5). Mr. Doll provided identification. He was questioned where he was coming from, and replied that he had parked his mother’s van at the corner. He asked for a ride back to his vehicle, indicating his mother had consented to his driving her van (App. 231-32, 255, 257-58, 267- 69). Mr. Doll then picked up a scissor jack that had fallen from his pocket (not attempting to discard it [App. 256-57]), and entered the back of the patrol vehicle. Asked about the tools, Mr. Doll said he was going to a friend’s house. He could not recall the address (App. 233-35, 269). B. In Custody Before Diehl headed to the corner lot, the person who had called in the initial complaint pulled up (App. 236, 259-60). He had seen an individual near two parked cars at the corner of Route 5 and North Lake Road. Another person also exited the truck, indicating that he had seen the same thing. Diehl then returned to the patrol vehicle, had Mr. Doll exit, frisked and handcuffed behind his back (App. 236-38, 260-61). Forcibly detained now, Mr. Doll was placed back into the marked patrol vehicle, which could not be opened from the inside. The back seat was caged in. He was not free to leave. Indeed, if Mr. Doll had tried, Diehl would have stopped him (App. 260-62). As confirmed by the Appellate Division below (ilcil, 98 A.D.3d at 362), Mr. Doll was indeed was in custody at this point. As the statements were purportedly not making sense, Diehl said Mr. Doll was not iirdr 2rrpct 1nt w h,nc, dpt ,- prI iinffl Iii- ’nhlIrl flrnirp. rsiif ixrlinf hr,,-1 (A-- ’)2 Q\ •J’}. JU). Yet appellant was handcuffed for over three hours in the back of the caged patrol vehicle before his transport from the scene (App. 266). C. Purported Emergency - Custodial Interrogation Without Miranda Deputy Reeves arrived at the parking lot at Route 5 and North Lake Road and spoke to Mr. Doll. He was in uniform and traveling in a marked patrol vehicle. Mr. Doll 10 was already in the patrol vehicle when Reeves arrived (App. 276-78). Investigator Kautz and Deputy Wescott then arrived. Mr. Doll was asked about the apparent blood on him. He said that he butchers deer, a fact Reeves knew to be true (App. 238-42, 248-50, 255-56, 266, 279, 281-82). Mr. Doll said that he was out walking because of an upcoming doctor’s appointment. There appeared to be blood on his coveralls in the area of his knees. His sneakers were worn (App. 244-46, 282-84, 289). Nothing in the back of Mr. Doll’s mother’s van (a Ford Windstar) appeared suspicious. On the hood of the adjacent car, right out in the open, was a pair of work gloves with what appeared to be blood on them (App. 240-41, 243, 265, 270). There was also what appeared to be sporadic blood on the driver’s corner panel of the Doll van, as well as on the rear passenger door, the steering wheel, arm rest, and in the snow between the vehicles. There was also what appeared to be blood on Mr. Doll’s clothing, face, sneakers and coveralls (App. 243-44, 280-81, 315-17). Reeves asked Mr. Doll what was going on. He said he was taking a walk to get a cardio work out. When asked where he was head Mr. Doll indicated that he was going to a friend’s house, but did not recall the street name. As the apparent blood appeared to be fresh, Mr. Doll was asked if he had hot a deer. He replied that he could not say that. He was asked if it was human blood, and told that Reeves would get an ambulance if so. No answer was given (App. 283-85, 301). The North Lake Road area was searched. No evidence was found (App 243-44, 294). No Miranda warnings were ever provided to Mr. Doll, who remained handcuffed in County Court’s conclusions that Mr. Doll consented to be handcuffed as part of his being taken back to his mother’s van, and that custody did not occur until they reached the corner lot (App. 397-89 [Decision, p. 10-11]), were thus erroneous. 11 the back of the patrol vehicle. Yet the deputies continued to interrogate. He was told that he was being detained so the police could figure out what was going on (App. 262-65, 301). Reeves went to another town to check on Mr. Doll’s family. They were fine. Despite this lessening the emergency, Mr. Doll remained in custody (App. 290-93, 299-00, 304,311-12,318-21, 337). D. Mr. Doll’s Invocation of Counsel At one point, Reeves asked if it was human blood or not. Mr. Doll responded he could not tell him that. Shortly thereafter, Mr. Doll stated that he wanted to talk to an attorney, and that he did not want to say anymore. Yet the questioning continued, and Mr. Doll was warned that if he did not respond, an investigator would be called (App. 302-04). Just before being removed from the vehicle, Mr. Doll said, "enough about the blood." Reeves then asked what appellant wanted him to do. Mr. Doll said, "I guess, an attorney." When asked what his attorney’s name was, Mr. Doll could not recall (App. 289-90, 303- 04). The invocation of counsel was unequivocal. At no time did the People argue otherwise. 6 App. 364-74 (People’s Memorandum). Moreover, the Appellate Division opined that the police not finding a dead body amongst appellant’s family and friends could be interpreted as addressing the issue of law enforcement’s good faith motive in purportedly being solely concerned with finding whoever ever produced the apparent blood on Mr. Doll. Doll, 98 A.D.3d at 365-366. As noted above, the confirmed safety of the appellant’s family, etc., more than anything else, reduced the likelihood that the apparent blood on him was from a human. 12 B. Reeves Removes Mr. Dolifrorn the Vehicle: More Elaborate Custodial Interrogation Reeves brought Mr. Doll (still handcuffed) out of the patrol vehicle, and walked him to the front fender of his mother’s van. When asked why the blood was there, Mr. Doll responded that he could not answer (App. 286, 301-02). Reeves opined that there were two obvious blood-soaked spots in the snow from Mr. Doll walking. Reeves stated to Mr. Doll that he hoped it was just a deer left in a ditch. Again, he threatened to call in an investigator, and to tow the vehicle. Reeves stated that he had to find out what kind of blood it was. Mr. Doll responded that he understood, and that Reeves had to do what he had to do (App. 286-88). Mr. Doll (still handcuffed) was then placed back into the patrol vehicle, where the questioning continued. Reeves told Mr. Doll that as he would not say whether it was human or deer blood, Reeves was unable to get help (App. 288, 302). F. Investigator Kautz: The Third Interrogator at North Lake Road hivestigator Kautz responded to the scene around 9:30 p.m., at Reeves’ request. T11,-.11,.1. TS.A,. flrsll 1,,-1 ,c,Iz-rl frsr iirQ’l TTh11t7 flh1(QfiU11Pt1 him r r,-Br.-v f1-.., .t flS.J LI-511 LVII. I_f ViAL JILL_I ILLS sL.V&J SI..JLSS#’.L AViS L)Vi,& &- . apparent blood (App. 312-13, 318, 338). Using a flashlight to look into the van, Kautz observed red stains on the steering wheel and the driver’s arm rest. Kautz observed the red footprints in the snow next to the van, as well as the gloves on top of the other vehicle. There also appeared to be blood on Mr. Doll’s clothing and face (App. 315-17, 319-20, 337). Kautz told Mr. Doll that if there was someone in need of attention, it would benefit him to tell them. Mr. Doll was asked why he was wandering in the area, and whether there 6 Again, the Appellate Division made a specific finding on three occasions that appellant invoked 13 was an injured person out there. He replied that there was nothing he could tell them (App. 701, 703, 707-08). G. Evidence Seized According to the Sheriff’s Department, the van was towed to the station in order to obtain evidence of a different crime or as yet unrealized matter; i.e., to obtain evidence that would probably be valuable later on in the investigation (App. 316-17, 322-23) Investigator Kautz speculated that there was something bigger going on, like another person being injured in an accident or assault. No one had been found yet, and Kautz did not know the blood source. Mr. Doll’s clothing was taken (App. 318-21, 330). No warrant had been issued for the clothing or for the van. Nor had an arrest been made. The reason given was the potential for destruction of evidence. However, Mr. Doll was in custody at the time. With deputies at the scene, they could naturally have guarded the vehicle while they applied for a warrant (App. 340-41). H. Purported Trespass ini’estigation The North Lake Road lot where the van was parked was a repair shop property. Tts owner (Mr. Hammond) was ultimately contacted, arriving almost three hours after Mr. Doll was first stopped (App. 266, 293-94, 305). Absent were any "no trespassing" or "no parking" signs. Nor were there chains across the drive way. Further, Hammond was not asked if he had previously told Mr. Doll that he could park there (App. 258, 267, 305-06, 341). County Court correctly found that no trespass had occurred (App. 399 Decision, p. 12]). his right to counsel. 98 A.D.3d at 359, 360, 363. 14 I. 1:30 AM: The Body is Found Mr. Benaquist’s body was found around 1:30 am. (App. 323, 341-42). At the time, the apparent blood on Mr. Doll had not been connected to any human (App. 338-39). At this point, Mr. Doll had already been placed in custody and transported to the station (App. 267). J. After 3 AM: More Interrogation at the Station Mr. Doll was transported to the station against his will. Around 3 a.m., Mr. Doll’s friend and fellow corrections officer, Teresa, came to visit him there. Kautz spoke to her (App. 323-24, 339-40). Kautz permitted Teresa to speak to Mr. Doll, but only with Kautz present; taking down what was said. Kautz, Teresa and Mi. Doll were in a 12 x 8 room, with Kautz just five feet away. Reeves was in the adjoining room, with the door ajar (App. 325-27, 335). At the time Teresa arrived. Kautz knew Mr. Doll had apparent blood on him before, and that a body had already been found. But Kautz anticipated more facts would be (A,-rn \ tht T,I,. T1,-j1 JJJ LLflI*J111fl15 fl Ulit tIflJ JtJfl V ’.dl .Jt.tIflJlfl k J, .1tL flA5J -5 LILLL - 1_I. %JLL VY (lÀ) involved in the homicide. This is why Kautz insisted on being present. In other words, Kautz acknowledged letting Teresa question Mr. Doll, in the hope that appellant would say something incriminating (App. 334-35). While Mr. Doll did not affirmatively object to this unusual procedure, he was never given an option. Kautz knew at that point that Mr. Doll had asked for an attorney before he would discuss the matter any further. And Kautz himself had already interrogated Mr Doll regarding the possibility of a victim being out there (App. 335-36). 15 Teresa asked Mr. Doll what happened, and he indicated that he was there but did not do anything. Asked if an animal was involved, Mr. Doll said no. Asked about a dead body, Mr. Doll indicated he "couldn’t do that" (App. 329). Other statements (eventual fodder for the People’s summation [App. 1593-94, 1609-14 (Trial minutes)]) were also purportedly made: "Let the chips fall where they may," "I’m going to be in jail somewhere I’m sure," "It doesn’t matter what attorney I get. It’s going to turn out the same," "It’s an open and shut case," and "I would get what I deserve" (App. 330-31)! The facts that follow in this section were established at trial: II. Testimony at Trial A. Statements at North Lake Road On North Lake Road, Deputy Diehl asked Mr. Doll what he was doing. He said he had a doctor’s appointment the next day and was trying to lower his heart rate. Mr. Doll had parked his mother’s van at the corner. When asked about the blood on him, he said he had been butchering deer, and asked for a ride back to his van (App. 487-491, 507, 512-513). There was no blood on the screwdriver, lug wrench, jack or Pontiac key in Mr. Doll’s possession. Asked about the items, he said he was bringing them to his friend’s house (App. 487-488, 490-493, 508, 512, 558-560, 592-593, 597-598, 756-759). After Mr. Doll was placed in the patrol vehicle, the person who called in the initial report stopped and talked to Diehl. Mr. Doll was then cuffed, patted down for weapons, and again asked Incredibly, the Appellate Division opined that these statements were similar to the other statements that appellant made to law enforcement, and therefore harmless. 98 A.D.3d at 366-3 67. This conclusion is plainly belied by the record, as appellant’s statements to Teresa were undeniably incriminating and unlike any other statements appellant made to the police on the date in question in both content and their incriminating nature. 16 what was going on. He said he did not know. Mr. Doll was purportedly to be detained until Diehl could determine what was happening. He was brought back to the corner where his mother’s van was parked. Bloody work gloves had been placed on the hood of an adjacent vehicle. There was a blood mark on the driver’s side of the van (App. 489, 494- 496, 501, 507-5 10). Other officers arrived. Deputy Reeves, who knew Mr. Doll, spoke to him while appellant sat in the back of a patrol vehicle. Reeves expressed Diehi’s concerns to Mr. Doll (App. 514-518). He asked where Mr. Doll was headed. Mr. Doll said he was heading to a friend’s house. His shoes had blood on them, and were in bad condition; not proper attire for a work out. Mr. Doll indicated that he had borrowed the van from his mother. There was fresh blood on his coveralls, and specs of blood on his cheek (App. 518-520, 527-528, 530-531, 537-538). Mr. Doll was told that an investigator would be called. But if it was just a deer being hit, it would be unnecessary. Mr. Doll told Reeves to do what he had to do (App. 531). When asked if the blood was from cutting deer, Mr. Doll said no. He was also asked if it was human blood. Appellant replied that Reeves knew him better than that. Reeves also observed blood on the van’s front fender and a set of bloody tracks in the snowy parking lot (App. 520-522, 53 8-539). Reeves continued asking about the blood on Mr. Doll and his van; specifically whether it was from a deer. Mr. Doll replied that he did not want to talk anymore about the blood (App. 522-523, 539); finally indicating, "enough." When asked if he wanted help, Mr. Doll invoked his right to counsel. Asked whether an ambulance was necessary, he responded, "I can’t tell you that Pat. You know me better than that." He again invoked his 17 right to counsel (App. 526, 540-42, 549). Mr. Doll was also walked outside, and asked about the blood on the van. Mr. Doll shrugged when asked how it got there, and was placed back in the vehicle. Reeves would normally read Miranda warnings and stop questioning if a suspect asked for counsel. But not here. Though he remained handcuffed, no one provided Mr. Doll Miranda warnings, and his request for counsel was ignored (App. 508-13, 524-28, 541-43). When Investigator Kautz arrived, Mr. Doll was seated in the patrol vehicle. Kautz observed blood on the Windstar (App. 551-58, 589-92, 596). B. Physical Evidence A thorough search of the crime scene area produced no other physical evidence, nor any weapons (App. 532-34, 544-45, 547-48, 578, 587, 598-99, 635-46, 646, 770-71, 941- 42, 1153). The deceased died from blunt force head trauma. There were also significant defensive injuries on his hands (App. 795-809, 813-17, 821-22, 1219-20), as well as injuries consistent having been dragged on a hard surface. Mr. Doll, however, suffered no injuries (App. 562-63, 565-75, 578-80, 593-95, 811, 817). Blood was found on the vehicles near Mr. Benaquist’s body. Blood was also recovered from the interior and exterior of the Windstar (App. 719-28, 730-32, 776, 748- 49, 759-61, 768-70, 780-81). Though not known at the time of arrest, it was ultimately determined that Mr. Benaquist’ s blood matched the samples taken from the spatter seized from Mr. Doll’s face and clothing (App. 745-46, 837-848, 879-82, 885, 889-92, 894-97, 18 922). The deceased’s clothing and fingernails, were not tested (App. 853-59, 864, 867, 913-14, 930_32). The People’s forensic consultant (Paul Kish) testified that there were transfer stains under the vehicles near the body. There were also spatter stains on the side of one vehicle, but it was not known if they were the result of a struggle (App. 2652-54, 2676-81). Kish opined from the photos that the patterns on the driver’s side of the Windstar were "impact" spatter, being in close proximity to the blood source. There was, however, no testing done on the vehicle. Kish opined that the stains on Mr. Doll’s coveralls were also "impact" spatters (App. 2657-64, 266, 2669-71, 2709-10, 2719-21, 2725-26). But he conceded that blood will react differently, depending on the surface. If blood dripped down over the deceased’s airways, the mouth or the nose could expirate blood, which creates spatter, having a similar range and size, as if there was an assault (App. 2674-76, 2688-97, 2700- 03, 2705, 2707-09, 2713-16). C. The Defense Blood Spatter Expert The defense called forensic scientist, Doctor Herbert MacDorinell. His landmark academic work on blood stain patterns is now in its fourth edition (App. 1280-85). The Other facts raised doubt as to appellant’s guilt. Mr. Benaquist’ s body was found in a pool of blood between two vehicles in his driveway (App. 614-15, 651-55, 674-78). There was a blood spot in the driveway, a distance from the body, but no bloody foot prints leading to it (App. 761- 62). Blood swabs taken from the deceased’s driveway were not tested for DNA (App. 773). A shoeprint in the snow was found in the driveway, and determined not to have been from Mr. Doll or Mr. Benaquist (App. 671, 693-94, 771-72, 784, 1175, 1212). Pieces of paper were recovered in Mr. Benaquist’s pocket, including one with "Dave" inscribed (App. 777, 782-83, 823-24). Also in the deceased’s possession was an auction house ID card in Brandon Doll’s name (Mr. Doll’s son). There was no testimony of these items being followed up on by the police (App. 591-92, 716, 721, 775-76). Further, though Mr. Benaquist was a corrections officer for years (App. 775-76), it was not investigated whether there were problems with inmates that he had guarded (App. 694). 19 beating here was bloody and required considerable force. As there was no "cast off" blood on the coveralls Mr. Doll was wearing from the swinging of a weapon, it was nearly impossible for the wearer (Mr. Doll) to have administered the bloody assault (App. 1291- 92, 1298-99,1303, 1321-23). D. The Station House Statements Because of County Court’s suppression ruling, the defense was forced to call Mr. Doll’s friend, Teresa, to the stand to provide context to Mr. Doll’s statements at the station (App. 1323-25, 1330-31, 1559-60). Kautz permitted Teresa to see Mr. Doll, but only with Kautz present. Mr. Doll said he wanted a public defender, and that Teresa need not call anyone. Teresa asked if appellant was sure this was the way he wanted to handle things. He was not. W. Doll said he was there, but he did not do it. Let the chips fall where they may (App. 1345-47, 1349-52, 1394, 1403). Mr. Doll stated that the attorney he would have did not matter. The result would be the same (App. 135 1-52, 1389-92, 1399-01, 1403-04). E. Mr. Doll’s Testimony TA.11 c... i, -. L.1. I A . lvii. iJUIL Lk., )L1k1L,U lii 1113 0,17M, J11CLLL. f). …,Ul1.A’LiJ1J ULIL.AJ. I%JI Ct (.IUc1.L1I Ueiiiitiy, Mr. Doll had a part time used-car business, wherein he occasionally did business with his friend, Mr. Benaquist. They worked together, and would see each other daily. Mr. Doll and the deceased had no animosity (App. 1414-19, 1423-24, 1433, 1451-52, 1461). On February 16, 2009, Mr. Doll intended to meet Mr. Benaquist at an auction site to drop off a Dr. MacDonnell, Director of the Laboratory of Forensic Science, had previously testified as both a prosecution and defense expert. He had taught and lectured at schools the world over, including in Europe and the FBI Academy (App. 1280-85). MacDonnell had authored over a hundred articles and chapters in text books on forensic science, His research into the study of blood dates back to 1955. He also participated in the first organized research of bloodstain patterns in the Western Hemisphere (App. 1282-84). 20 Pontiac. As W. Benaquist never showed, Mr. Doll went to his friend’s home. Upon arriving, appellant observed Mr. Benaquist in his driveway on his back; struggling to get up. He approached and knelt down next to him. There was blood all over. Mr. Doll asked what happened; trying to comfort his friend. Mr. Benaquist stated the words, "The boy... The boy," and then died (App. 1434-39, 1476-79). Mr. Doll did not know what to do. Shocked by the event, he got back in his van, drove up the road and parked. He placed his gloves on the adjacent vehicle. He then started walking down North Lake Road back towards the scene, wondering if his own son (who worked with the deceased in dealing with used cars), was involved. The sheriffs vehicle then pulled up behind him (App. 1440, 1470-71, 1480-83, 1493). Upon being placed in the back of the patrol vehicle, Mr. Doll stated that he was out doing some cardio work. He was actually trying to buy time, as he believed that his son could have been involved. Mr. Doll sat in the caged patrol vehicle for hours as he was interrogated. He asked to speak to an attorney. He was ultimately taken to the station, but never provided counsel. Mr. Doll was shackled to the floor. Teresa eventually arrived (App. 1441-1446, 1471-72). The jury convicted appellant as charged. 21 ARGUMENT POINT! APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, DUE PROCESS, COUNSEL AND TO BE FREE FROM COMPELLED SELF INCRIMINATION (N.Y. CONST. ART. I, §6; U.S. CONST., AMENDS. V, VI AND XIV; C.P.L. 60.45), AS HE INVOKED HIS RIGHT TO COUNSEL, AND WAS SUBJECTED TO CUSTODIAL INTERROGATION WITHOUT BEING AFFORDED MIRANDA WARNINGS. THE PUBLIC SAFETY I EMERGENCY EXCEPTION DID NOT APPLY, AND THE STATEMENTS WERE INVOLUNT- ARILY MADE. In 1984, this Court recognized for the first time an emergency exception to honoring a suspect’s invocation of counsel. See People v. Krorn, 61 N.Y.2d 187. In Kiorn, this Court approved of the continued questioning of a suspect in custody, who had invoked his right to counsel, regarding the whereabouts of a known victim. Thus, under New York’s constitution, other than to protect the life of a known human being, an unequivocal invocation of counsel ends all questioning. In our case, however, the police continued to interrogate and facilitate further custodial interrogation of Mr. Doll, without Miranda warnings, and without any knowledge of a known person in need of help - long after appellant invoked his right to counsel - and even after the purported emergency had ended. As the statements should have been suppressed, a new trial must be ordered. 22 I. The Decisions Below County Court issued a suppression decision, concluding that the People v. Krom (61 N.Y.2d 187) emergency exception existed, justifying the police not Mirandizing Mi. Doll. Krom’s application to appellant’s invocation of counsel was initially not directly addressed. The court also found that none of the statements appeared to be involuntary. 10 The Appellate Division found that the emergency doctrine justified the police questioning appellant in custody without Miranda under the circumstances of this case. 98 A.D.3d at 362-363. As explained herein, there is no support in the record for the Appellate Division’s determination. Said the court: The amount of blood present on defendant’s face, hands, clothing and van, and on the ground, along with the bloody gloves on top of a nearby car, indicated that one or more persons had been grievously injured, and that defendant had been in close contact with that person or persons. Defendant’s initial explanation, that he had just put on clothing in which he sometimes butchered deer, was inconsistent with the fresh, wet blood on his clothing, as well as with the blood on his hands and face. Defendant added to the suspicious nature of the circumstances by refusing to show the deputies any deer or deer meat that could be the source of the blood, and by refusing to answer their questions concerning whether a person was involved. Based upon the circumstances confronting the deputies, they were justified in concluding that one or more persons had been injured and were in need of assistance or rescue. The need to gain information about a possibly injured victim or victims permitted the deputies to continue questioning defendant, despite his request for an attorney, under the doctrine that is variously known as the rescue, emergency, or 10 (App. 398-99 [10/7/09 Decision, p. 11-12]; App. 430-31 [5/5/10 Decision]). Mr. Doll then unsuccessfully requested that the court reconsider its suppression decision, citing his 5 h and 6111 Amendment rights to counsel, due process, as well as his right not to be compelled to incriminate himself (App. 41421). 23 public safety doctrine. "Under New York’s emergency exception, police officers can continue to question a defendant even after the defendant has requested an attorney if an individuals life or safety is at stake" Id. at 363. The court then cited to this Court’s decision in Krom (supra at 200), which dealt with a known kidnapping victim; and then supplemented the Krom rationale with the Supreme Court’s decision in Michigan v. Fisher, 558 U.S 45, 130 S.Ct. 546, 549 (2009), wherein the court opined that police officers "do not need ironclad proof of a likely serious, life-threatening’ injury to invoke the emergency aid exception." Yet the Appellate Division opined that "ironclad proof" did exist at bar regarding a person in need. Said the court: The deputies possessed specific information establishing that one or more persons had been injured to the point where he, she or they had lost a significant amount of blood. Consequently, the deputies did not violate defendant’s right to counsel by continuing to question him despite his request for an attorney. 98 A.D.3d at 364 (emphasis added). This legal conclusion has no support in the record, +,-. m1lrrl1,T,Ql%irl r.f rnir ct,tit’c, ,’ct,,ot+,-,,.ii J1U JO nJ t.,tjntiu V LLILflJiI tti tiflO tJLI1i 3 J L%.Jti.J 5i.Si.3__.&•Jk# ’*"’J"JiS.J tiIL1tLcJiiLt.J right to counsel. Side stepping the obvious gap in the sheriff department’s investigation, i.e., whether the potential blood was human or not, the Appellate Division says this about the dissent below: We respectfully disagree with the dissent’s conclusion that the exception does not apply because the deputies lacked knowledge that there was a victim, such as the kidnapped victim in Kimes (37 AD3d L.. ). The deputies did not know the name of the victim or victims, but they possessed enough information about his/her/their condition to justify the 24 continued questioning of defendant despite his request for an attorney. Based on defendants responses to their questions regarding deer, the deputies were justified in concluding that the blood came from a person rather than from an animal. Therefore, they knew that there was at least one victim, who had lost a significant amount of blood. The amount of blood located on defendant’s clothing, sneakers, face, hands, and the inside and outside of his van, along with the blood on the snow and the gloves, established the existence of a victim or victims who had been seriously injured. In addition, the deputies knew from the blood on defendant that he had been very close to the victim or victims. Furthermore, his refusal to answer questions and his patently false statements were evidence that defendant was withholding essential information and knowledge concerning the victim’s or victims whereabouts. Thus, contrary to the conclusion of the dissent, the deputies knew that there was a victim, to wi t, least one person who had been seriously injured and needed assistance. Id. at 364 (emphasis added). Aside from improperly using appellant’s silence here, the Appellate Division’s attempt to assume a knowledge possessed by the officers here is unwarranted and unsupported in the record. If the police actually knew what the Appellate Division said they knew - then why all the questions about whether it was human or animal blood? What would he the "emergency" justification then for asking over and over whether it was a human or animal in need? It simply does not add up. The record plainly shows the police acting on a hunch, not objective reasonable facts connecting appellant to an emergency involving a known person in need of help. The Appellate Division then goes on to cite the Boyd and Molina decisions for the proposition of asking about a victim’s identity and whereabouts without Miranda. Id. at 364. Be careful here, as no reported case has ever supported what the Appellate Division is proposing - - certainly not Boyd or Molina, both of which are discussed below and dealt 25 with known people in peril. The Appellate Division also posits that Miranda may be skipped to protect the safety of people in the future who may be injured by an abandoned gun. Id. at 364-365 (citing therein the Quarles, Chestnut, Oguendo decisions; all discussed below) True. But again, known potential victims were involved in those cases. This was not the case at bar. The Appellate Division below further observed: In analogizing the exigent circumstances exception to the Fifth Amendment to the similar exception to the Fourth Amendment’s protection against unreasonable searches, the United States Supreme Court wrote that a factual scenario in which a suspect known to have discarded a handgun sho rtl before his apprehension "present[ed] a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in [Miranda]" (Quarles, 467 U.S. at 653). The Supreme Court concluded that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination" (Id. at 657). Given the far more immediate and heightened concern arising from this situation, in which the evidence established that one or more persons had sustained severe injuries, the same rule applies. The deputies, rightfully concerned that a life might hang in the balance, did not violate defendant’s rights by continuing to question him without administering Miranda warnings (see People v Zalevsky, 82 AD3d 1136. 1138 ...). Id. at 365 (emphasis added). How not knowing that a person was indeed in danger (our case), as opposed to knowing for a fact of the existence of particular known potential victims (as in Quarles) could ever be seen as "far more immediate" is never explained by the Appellate Division. Interestingly, though approved of in Kiom, the Appellate Division never squarely takes on Mr. Doll’s invocation of counsel, except just to say it happened. The sometimes broad language of Quarles simply does not address our state constitutional right to counsel being invoked and here ignored - - without the certainty of a known person in danger. Finally, the Appellate Division further opined that as objective evidence purportedly existed, the officers’ motivation to also seek evidence of a crime was immaterial. Id. at 365. The court notes in this regard the officers’ efforts in determining the well being of Mr. Doll’s family, concluding that: Inasmuch as the evidence at the suppression hearing established that an objective need to rescue a member of the public existed and that the deputies were doing everything possible to aid that person or persons, the emergency exception applied notwithstanding the deputies’ additional intent to obtain incriminating evidence. Id. at 365-366. While it is true that law enforcement’s motivation need not be purely to solve an emergency in the Fourth Amendment context (see Mitchell discussion below), our state constitutional right to counsel requires greater protections for the suspect being interrogated. Ti i hip Pioh* to (’liIInc in Nw VnrL To be certain, the right to counsel and the privilege against compelled self- incrimination are "jealously guarded" by our state judiciary. People v. Rogers, 48 N.Y.2d 167, 170 (1979). This is a "cherished principle, rooted in this State’s prerevolutionary constitutional law and developed independent of its Federal counterpart." People y,West, 81 N.Y.2d 370, 373 (1993). Unfortunately, "[e]ven the most intelligent and educated layman lacks the skill and knowledge of the legal system to adequately prepare a defense, no matter how strong it might be." People v. Settles, 46 N.Y.2d 154, 160 (1978). 27 Accordingly, courts must "strive to exercise the highest degree of vigilance in safeguarding the right of an accused to have assistance of an attorney." People v. Cunningham, 49 N.Y.2d 203, 207 (1980). " Miranda rights and the invocation of counsel are two distinct doctrines where the right to counsel is exemplified. Both of these doctrines were violated at bar. A. Miranda Violations It is uncontested, and was found by the Appellate Division herein, that Mr. Doll was never Mirandized. Doll, 98 A.D.3d at 359-362, 364-365. It is black letter law that a suspect in custody may not be interrogated without being first afforded Miranda warnings. Miranda v. Arizona, supr . Custodial interrogation was carried out at bar by three police officers and one agent of the police. Rejecting County Court on this point, the Appellate Division correctly found (at 362) that custody began from the moment Mr. Doll was handcuffed behind his back and placed into Diehi’s caged patrol vehicle for the second time (around 9 p.m.). See People v. Yukl , 25 N.Y.2d 585, uioio’ 12 A+ 1- Frvnf,r FI41F (1\ xime n rm i-ti nrid in iinifnrnr (’?’ i- #pg-1 qrr11,iit .U.’ .-,".., .-’-, ."...-, ’.---.-- ---- -------’ Se k ~ j e also Miranda v. Ariznn, 384 U.S. 436, 444-445 (1966). Examples of our state judiciary’s vigilance in this area are easy to find. Kg., People v. Samuels, 49 N.Y.2d 218, 221-223 (1980) (unwaivable and indelible right to counsel attaches once formal proceedings have commenced through a filed felony complaint); Settles, 46 N.Y.2d at 165 (unwaivable and indelible right to counsel attaches once an indictment is filed); People v. Hobson, 39 N.Y.2d 479, 481 (1976) (recognizing that where a lawyer enters the proceeding regarding the present charges under investigation, a defendant in custody may not waive his right to counsel in the lawyer’s absence); id. at 483 (recognizing the principles at stake protect the privilege against self incrimination, assistance of counsel and due process). 12 See also People v. Parks, 120 A.D.2d 920 (4th Dep’t 1986) (where law enforcement, like our case, acknowledged that defendant was not free to leave); contrast People v. Perez, 293 A.D.2d 329, 330 (1St Dep’t 2002) (cited by the People below; where defendant consented to accompany police to the station, and was not placed in custody). 28 down for weapons; (3) placed appellant in handcuffs; (4) placed appellant into the cage in the back of the marked patrol vehicle where appellant could not exit, after previously having appellant sitting there without handcuffs; (5) took these actions after receiving information that appellant was seen by a passer-by purportedly acting suspiciously near the parked cars at the corner lot; (6) immediately upon detaining appellant, began directing more pointed questions towards appellant regarding what was going on; and (7) kept appellant detained in the patrol vehicle for an extended period of time (App. 494-95, 507- 08). From there the questioning began with Diehl, continued with Deputy Reeves and Investigator Kurtz, and then finished up with Mr. Doll’s friend, Teresa, under Kurtz’s close watch and supervision at the station. See generally People v. Rodney, 85 N.Y.2d 289, 293 (1995) (addressing interrogation standard). Though Miranda warnings were never provided, the questioning as set above, elicited incriminating evidence from Mr. Doll. As further addressed below, with the police not knowing whether the apparent blood on Mr. Doll was even from a human (much less his own), or whether a crime had even been committed, no public safety exception to providing Miranda warnings was justified. The facts here are thus unlike any case proffered by the People before County Court or the Appellate Division. 13 Nor does any other reported Miranda exception case help the People’s argument in this regard. See e.g.. People v. Chestnut, 51 N.Y.2d 14, 22-23 (1980) 13 See New York v. Quarles, 467 U.S. 649, 651-652 (1984) (defendant questioned regarding weapon accessible to known potential victims in grocery store); P eople _y Boyd, 3 A.D.3d 535, 536 (2d Dep’t 2004) (where defendant was questioned about a known victim of a likely crime); Krom, 61 N.Y.2d at 192-194 (again, dealing with a known crime and victim); People v . Kirnes, 37 A.D.3d 1, -14 (1stDept 2006) (same); People v. Thomas, 188 A.D.2d 569, 570 (2d Dep’t 1992) (same). NZ (finding it proper to ask robbery suspect in custody where gun was located); Peopl e v. Gulca, 18 A.D.3d 478, 479 (2d Dep’t 2005) (finding it was proper for officer to ask [pre- Miranda] where gun was located, as it was not otherwise recovered; victim had reported being held up at gunpoint); People v. Allen, 240 A.D2d 418, 658 N.Y.S.2d 393, 394 (2d Dep’t 1997) (where defendant walked into police station with apparent blood on his clothing; approached officer at front desk, stating, "I want to turn myself in, I just stabbed my girlfriend;" without Miranda, the officer properly asked where the knife was, and defendant said, "I have it right here"); People v. Adams, 225 A.D.2d 506 (1st Dept 1996) (officer responded to a shooting and properly asked defendant the whereabouts of the other perpetrators). 14 As also addressed below, whatever purported emergency the police claimed they were facing at the scene, all bets were off after the body was found (around 1:30 a.m.). When Teresa arrived at the station (around 3 am.), the pretense of an ongoing emergency was long gone. This is established by the timeline itsetf, as well as through Investigator V,,,f, ,4,,-s ,,le,-,l,, +ofol +,- f1f.,f,-,,-, ,mf,-.r, , 1LULt V V113J fl.#U LJLkdV.1 LVJ LLIAJIL1 --U tjtlS.’U LJJLIIfl5 J.L tIi_W ’.J 1/V IIJ LL3AJ L11U suspect - - who had been in custody for six hours and had already repeatedly requested counsel - - to illicit incriminating evidence. 1: 14 People v. Strickland, 169 AD2d 9, 12-14 (3d Dep’t 1991) (rejecting public safety exception to Miranda regarding location of gun despite defendant being arrested for wielding a shotgun and making threats on public highway). ’ (App. 31-17, 322-23). The People’s claim before County Court below of a so called "security rationale" for the presence of Kautz in the interrogation room (see App. 371 [Memorandum]), where appellant was in chains, bears no resemblance to the facts at bar. 30 No Miranda exception existed at the North Lake Road location. And no Miranda exception existed later at the station. B. Invocation of Counsel It is uncontested, and was found by the Appellate Division herein, that Mr. Doll invoked his right to counsel. 98 A.D.3d at 359-360. In the context of custodial interrogation, it is black letter law in our state that "[o]nce the defendant invokes the right to counsel guaranteed by NY Constitution, article I, §6, any waiver obtained in the absence of counsel is ineffective." People v. Esposito, 68 N.Y. 961, 962 (1986); Cunningham 49 N.Y.2d at 206; Rogers, 48 N.Y.2d at 169-171, 173; People v. Bing, 76 N.Y.2d 331, 338-339, 350 (1990); People v. Steward, 88 N.Y.2d 496, 499-501 (1996); People v. Bur -do, 91 N.Y.2d 146, 149-151 (1997); People v. Grice, 100 N.Y.2d 318, 320-321 (2003); People v. Porter, 9 N.Y.3d 966, 967 (2007); People v. Lopez, 16N.Y.3d 375, 380-382 (2011). As defense counsel noted below before County Court (R 1278), in the Miranda decision itself (see 384 TT 444-445), the court prohibited filrtbcr questioning where a suspect indicates in any manner that he wishes to consult with counsel. As this Court has stated, Miranda warnings "often provide only a feeble opportunity to obtain a lawyer, because the suspect or accused is required to determine his need, unadvised by anyone who has his interests at heart." Hobson, 39 N.Y.2d at 485. 16 Thus, requiring the presence of an 16 For the above reasons, the High Court recognizes "a broad, rather than a narrow, interpretation to a defendant’s request for counsel." Connecticut v. Bareft, 479 U.S. 523, 529 (1987), citing Michigan v. Jackson, 475 U.S. 625, 633 (1986). And any doubts must be resolved in favor of protecting the suspect’s rights. Jackson, 475 U.S. at 633; People v. Cotton, 280 A.D.2d 188, 192 (4th Dep’t 2001). As the Fourth Department has instructed, if a suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking[,] there 31 attorney for a post invocation waiver of counsel "breathes life" into the requirement of a "competent, intelligent and voluntary" waiver. Id. For sure, "it may be said that a right too easily waived is no right at all." Id. This is why our state right to counsel encompasses having legal advice before making the decision to waive rights. Cunningham, 49 N.Y.2d at 210. Accordingly, "once a defendant in custody invokes his right to counsel, all of the guarantees implicit in that right are brought into play, and a subsequent waiver of rights outside the presence of counsel cannot be given legal effect." Id. The affirmative step taken by a suspect in invoking the right to counsel shows an intentional and conscious desire not to speak to the police. This is unlike a Miranda violation, that, although has great constitutional significance, does not reflect as much upon a suspect’s thought process and intentions; as it is more difficult to come up with the idea of seeking counsel and then expressing it, rather than merely saying "yes" to some warning the officer is giving you (in a purposely monotone voice). Further, the government’s I burden in the midst of a true emergency is greater in complying with Miranda, rather than simply honoring a suspect’s invocation of the Sixth Amendment and New York Constitutional right to counsel. Put another way, when a suspect invokes his or her right to counsel, this Court should demand a more thorough explanation from the government, than even following a Miranda violation, to establish why this seminal constitutional right is being ignored. can be no questioning." People Y. Lubanski, 148 A.D.2d 947, 948 (4th1 Dep’t 1989) (where suspect told the police he had spoken to three attorneys and could not afford the third one) (other quotation marks omitted), citing Miranda, 384 U.S. at 444-445; see also Davis v United States, 512 U.S. 458, 459 (1994) (Souter, J., concurring) (observing that a suspect invoking the right to counsel need not "speak with the discrimination of an Oxford don"). 32 For these reasons, "[a] suspect whose right [to counsel] has indelibly attached has no obligation to keep the police informed as to the status of the attorney-client relationship." West, 81 N.Y.2d at 376. This is so because only an attorney’s presence "serves to equalize the positions of the accused and sovereign, mitigating the coercive influence of the State and rendering it less overwhelming." Rogers 48 N.Y.2d at 173. 17 Thus, in our state, once a suspect has invoked the right to counsel, all questioning outside the presence of counsel must stop. Unlike the federal standard (see Edwards v. Arizona, 451 U.S. 477, 484-485 [19811), the New York suspect does not even have the ability to re- start or acquiesce to the restarting of the questioning. Earthquakes, floods and late night visits to the police station by friends are of no moment. Ill. Purported Emergency The emergency exception to honoring an invocation of counsel is a limited one in our state. In the seminal case of People v. Kron, 61 N.Y.2d 187 (1984), a woman was kidnapped from her home by a masked man armed with a rifle. in front of her husband and another witness, the kidnapping victim was taken by force through a wooded area near the family residence. After defendant mistakenly gave his identity away on the phone while talking to the victim’s father, the police visited defendant at his residence, and the interrogation began. Unlike Mr. Doll, defendant Krom was actually Mirandized and affirmatively rejected (at least at first) having an attorney. ]4. at 193. The ’crafty" Mr. Krom told the police that he might have information about the case, and was ultimately 17 cunpjnhu, 49 N.Y2d at 207 ("tile presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when he is directly confronted with the awesome law enforcement machinery possessed by the State"). 33 brought to the station for more questioning. After making a litany of incriminating statements and being informed that he was under arrest, Mr. Krom finally invoked his right to counsel. Id. at 194. Similar to our matter, a third party, the victim’s father, began to converse with defendant Krom (in the presence of law enforcement) later that night at the station. Id. at 194. The defendant ultimately agreed to lead the police to the body, which was in an adjoining county. Found along with the body was a ski mask and a rifle. Despite the emergency ending, however, the police continued to question the suspect. Back at the station, a full confession was unlawfully secured. Id. at 195. As this Court recognized, applying the Cunningham invocation of counsel rule to defendant Krom’s statements, "made at a time the police were attempting to find the missing woman and after [defendant] invoked his right to counsel," raised a novel question. Krom, 61 N.Y.2d at 197. As observed in Krom, not permitting a waiver of th e right to counsel (after invocation) without counsel present represented a desire by this Court to reject the general rule that constitutional rights may be waived if done knowingly and voluntarily. Id. at 197, citing Johnson v. Zerbst, 304 U.S. 458, 463-464 (1938). This is a prime example of our state judiciary "jealously" guarding the state right to counsel. However, in none of the seminal pre-Krom cases setting out New York’s right to counsel did the life or safety of the victim depend on the success of the police investigation. Krom, supra, at 198. The primary role of the police is to prevent crimes and provide emergency assistance to those whose lives may be in danger. Id. As Krom warned, if the right to counsel rule is imposed in cases "where the police are engaged in 34 their primary duty of attempting to provide assistance to a person whose life is, or may be, in danger," delay of the investigation may result in the death or injury to the victim. Id. But all of these Krom safety principles are based, as noted below, on the traditional Fourth Amendment emergency exception where a known person is in peril. 14. at 198-199. The rule set out in People v. Krom, supra, addressed a specific scenario, where a person has actually been identified as missing" - - and, like every other missing person report scenario - - with the name of the missing person came other information: where she was last seen, who she was last seen with, what she was last wearing, etc. This is why in every reported interrogation I emergency case, the police not only had the name of the missing person, but also some independent objective fact connecting the disappeared person with the suspect being questioned 19 (i.e., the defendant’s voice identifying him as the son of a family business partner of the victim’s father, Krom, supra, at 193; the victim’s photograph being found in suspect’s knapsack. Boyd, sunra at 536; the victim’s belongings being found in the suspect’s possession, Kimes, supra, at 16; or the victim having been a witness against the suspect in a separate criminal matter, Molina, supra, at 490). As the Dissent in Mr. Doll’s case correctly observed: The facts of this case... are very different fiom Krom and do not warrant the application of the emergency exception. Most importantly, unlike in Krom, the police in this case were not 18 At least one superior court has described a Krom issue as "(t)he missing person inquiry." People v. Manzella, 150 Misc.2d 956, 961-962 (Sup. Ct. Erie Co. 1991). ’ This principle is analogous to the third prong of the Mitchell I Fourth Amendment emergency doctrine, which requires a reasonable basis, approximating probable cause to associate the emergency with the area or place to be searched. Mitchell, 39 N.Y.2d at 177. Mitchell, another missing person case (id. at 175-76), is more fully addressed in Point II below. Again, if the police receive information regarding a known missing person, this other "connection" information would in all likelihood be forthcoming. 35 aware that there was even a victim who needed police assistance. While we agree with the majority that the police did not need to know the victims identity (citation omitted), they at least had to know that there was a victim of a crime. The majority relies on the fact that the defendant had blood on his clothes to support the inference that there was a victim somewhere, but defendant explained that the blood on his clothes was from butchering deer, which is certainly a reasonable explanation. To allow the police to disregard a persons invocation of the right to counsel based on the mere fact that the person has blood on his or her clothing is an unwarranted expansion of the emergency exception. PiL 98 A.D.3d at 370-372 (emphasis added). At bar, there was nothing connecting the facts on the ground to an actual person gone missing. Apparent blood from the knees on down, specs of apparent blood on clothing and appellant’s face and hands, and sporadic apparent blood in and outside of appellant’s van, is wholly insufficient. Information unknown to law enforcement included whether it was blood at all; and if so, whether it was human or animal blood; and if human, whether it was Mr. Doll’s blood or someone else’s. And all of this had to be determined with only scarce street illumination. The photographs attached to this brief, taken on the night of the arrest, remember, were taken in a well lit police station. Even considering the sometimes ambiguous statements from Mr. Doll (many of which should not have been asked in the first place) as context, law enforcement was still required to both Mirandize and honor appellant’s invocation of counsel. No reported decision in our state has condoned what the Appellate Division signed off on below.20 20 Emergencies that suspend constitutional rights require a reasonable basis that a person in fact is in danger. E.g., People v. Chatman, 122 A.D.2d 148, 149 (2d Dep’t 1986) (police report to a shooting and ask where gun is located; defendant’s answer was admissible). 36 To reiterate, in our state, the police can only continue to question a suspect after he has requested an attorney if a known individual’s life or safety is at stake. Krom, 61 N.Y.2d at 199-200; Kimes, 37 A.D.3d at 16; see also Quarles, 467 U.S. at 651-652. 21 In all of the New York cases cited in these proceedings, unlike the matter at bar, there was an identified victim or identified potential victims that needed to be saved or protected. Krom, 61 N.Y2d at 192-194. 22 In Krom, as noted above, the interrogation emergency doctrine is described by this Court as having evolved from the Fourth Amendment scenario of the police looking for a known missing person. Along these lines, this Court observed that: In Fourth Amendment cases this court and others have recognized an emergency exception which permits the police to enter premises, without a warrant or probable cause to believe that a crime has been committed, in order to search for a person who is missing and may be in danger... Delaypf the investigation may also prove fatal to the missing perso when it is occasioned by the inability of the police to employ the usually less-intrusive technique of making inquiry of all 21 People v. Swoboda, 190 Misc.2d 214, 217-222 (Crim. Queens Co. 2002) (discussing Quarles, Krom and their progeny). 22 The People’s 1I,, f, f1 C.-.11.-........... " 1UUUVV1U U!C J of counsel is easily distinguished from our matter. See People v Hawkins, 254 AID. 96, 97 (15t Dep’t 1998) (where the police were concerned with the defendant’s safety); People v. Oguendo, 252 A.D.2d 312, 313-314 (1st Dep’t 1999) (where police were investigating a known crime involving a handgun discarded in public area); Boyd, 3 A.D.3d at 536 (where photo of known victim was legally observed inside defendant’s knapsack); Quarles, 467 U.S. at 651-652, 655-656 (setting out the Miranda public safety exception, dealing with investigation of known crime involving handgun discarded in public area inhabited by store patrons); iQm, 61 N.Y.2d at 192-194 (again, where police were investigating a known kidnapping); Kime, 37 A.D.3d at 16 (again, following Kiom; where belongings of known missing victim were found in defendant’s possession); Molina, 248 A.D.2d at 490 (where police were investigating a known kidnapping; a missing person who had been a witness against the defendant in another criminal matter); People v. Reed, 78 A.D.3d 1481, 1482 (4th Dep’t 2010) (no facts provided to determine if analogous to our matter); People v. Taylor, 302 A.D.2d 868 (4th Dep’t 2003) (where police were investigating the murder of defendant’s girlfriend; again, no other facts provided to determine if otherwise analogous to our matter); People v. Burgos, 255 A.D.2d 199, 681 N.Y.S.2d 239, 240 (1St Dep’t 1998) (where defendant was asked about any dangerous weapons in his possession before Miranda warnings provided). 37 persons, even those who may be represented by counsel, if they are likely to have, or actually claim to have, information of the person’s whereabouts. * * When the police are searching for a person who has recentl disappeared, the need to provide prompt assistance is not terminated once the police learn that the person has been abducted. Even if the suspected kidnapper has been arrested the police emergency role may continue as long as the victim’s whereabouts remains unknown. It would not be reasonable or realistic to expect the police to refrain from pursuing the most obvious, and perhaps the only source of information by questioning the kidnapper, simply because the kidnapper asserted the right to counsel after being taken into custody. To hold that the special restrictions of the State right to counsel rule extend into this area of police activity would either dangerously limit the power of the police to find and possibly rescue the victim or would, perversely, pçjt the kidnapper to continue his ransom demands and negotiations from the sanctuary of the police station. We therefore hold that the police did not violate the defendant’s right to counsel under the State Constitution by questioning him concerning the victim’s whereabouts. Krom, 61 N.Y.2d at 198200 (emphasis added and citations omitted). Seven times this Court referred to a known person to be saved in the above passage. Four times this Court +.s Thc that tT-,i Col in in Krrm never tltci- -’-’-’-.-’ ’" I4 •.$ f .t - -_•&_ - holding would be used for facts like those at bar. Both the holding and the dicta of Krorn support appellant’s argument here. There can be no question as to what this Court was envisioning for the emergency doctrine; i.e., specific missing persons and suspects with some connection to the particular missing person - - this being the only proposition wholly consistent with the right to counsel being ’jealously guarded" by our state judiciary. Rogers, 48 N.Y.2d at 170. 38 Moreover, in its analysis of Krom and Quarles, here is what the First Department in Kimes (also cited by the Appellate Division below) said: Under New York’s emergency exception, police officers can continue to question a defendant even after the defendant has requested an attorney if an individual’s life or safety is at stake. (People v. Krom, 61 N.Y.2d 187 [1984]. Like the victim in Krom, Silverman disappeared from her home without a trace. The circumstances surrounding Silverman’s disappearance were highly suspicious. When Hackett learned that Kimes had been taken into custody and that she had some of Silverman’s personal belongings, he questioned her exclusively about Silverman’s whereabouts. Under these circumstances the ’emergency exception" was correctly applied and Kimes’s statements were properly admitted at trial. We further conclude that the safety exception discussed in New York v. Quarles, 467 U.S. 649 [1984]) applies to a situation where a suspect has invoked the right to counsel, and that it also applies to the type of emergency presented here. Kimes, 37 A.D.3d at 9 (emphasis added and parallel citations omitted). As noted above, Kimes, consistent with Krom, was crystal clear in limiting the emergency exception to the "circumstances" before it; i.e., where there exists a known missing person and further indicia of suspicion connecting the suspect to the disappearance. To apply the exception where there is simply a general suspicion because of unexplained (and unidentified as human) blood is plainly in contravention of our state constitution. The People even argued in the courts below that not knowing who the purported bloody victim was made this a more "acute" emergency than the cases with "known" victims. But there is simply no logic to this. The police at bar did not even know if the potential blood on appellant was from a human or not. How could this possibly compare to the frantic search for a known kidnapping victim? If the police were in such a frantic 39 search for information here, why did they simply place appellant in a cell at the station and stop questioning him (at least until Teresa arrived)? If there was a known victim out there, they never have done that. The police here were simply acting on a hunch. Further, though misinterpreted by the Appellate Division (98 A.D.3d at 365-366), law enforcement having investigated whether appellant’s friends and family were in danger made it less, not more, likely that the apparent blood on appellant and his vehicle was from a human. In other words, narrowing down the people appellant would have had contact with only lessens the chance of the apparent blood being from a human. And again, aside from there being no identified victim until 1:30 a.m., the police continued through a civilian agent to elicit statements from Mr. Doll even after the purported emergency had ended. Mr. Doll invoked his right to counsel at the North Lake Road location in the presence of Deputy Reeves (App. 289-90, 304), a fact known to Investigator Kautz when he questioned appellant on the street and subsequently arranged for Teresa’s questioning of him later on at the station (App. 318, 338). As addressed below, the Appellate Division does not conclude that any emergency justified the continued questioning at the station; rather the court mistakenly found that no agency existed (id. at 366-367). Without a New York case to properly support its emergency exception conclusion, the Appellate Division cited to Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 549 (2009), which interpreted the federal constitution, for the proposition that the police "do not need ironclad proof of ’a likely serious, life-threatening’ injury to invoke the emergency aid exception." However, "[i}n the past [this Court] ha[s] frequently applied the State 40 Constitution, in both civil and criminal matters, to define a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties." People v. P.J. Video, 68 NY.2d 296, 303 (1986) .23 Moreover, it should also be noted that the High Court in Fisher, as it closed its decision, observed this: It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. Id. at 549 (emphasis added) . 24 In other words, unlike the situation at bar, a known person in Fisher (i.e., the defendant) was at risk. See again Hawkins, 254 A.D.2d at 97 (where the police were concerned with the defendant’s safety; dealing with Fourth Amendment emergency exception). The Fisher scenario is not what happened at bar. In sum, this Court is asked not to expand today the Krom emergency exception to the invocation of counsel under the circumstances at bar. !V. Federal and State Jurisdictions New York has its own singular protections for the right to counsel, regardless of what other jurisdictions decide. As this Court in Krom recognized, the "State 23 See also P.J. Video, 68 N.Y.2d at 303-305 (further providing examples of this Court interpreting article 1, § 12 of the State Constitution as providing greater protections for the individual than under the Fourth Amendment); id. at 309 (in rejecting the Gates "totality of the circumstances " test, this Court held that "[t}he legal reasoning supporting our views, our understanding of principles of federalism, and this States legal and cultural traditions all lead us to conclude that we should depart from the Federal rule stated in this case,.. this warrant application did not demonstrate the probable cause required under the provisions of article I, § 12 of the State Constitution and accordingly, on reargument following remand from the United States Supreme Court, we affirm the order of the County Court"). 24 Appellant addresses Fisher in greater detail under the guise of the Fourth Amendment issues under Paint 11 below. 41 constitutional right to counsel... generally affords broader protections than its Federal counterpart." Id. at 197, citing Hobson, 39 N.Y.2d at 483-484. However, appellant would be remiss if he did not provide this Court, which faces an important question of first impression, with at least a sampling of what other states and jurisdictions have done in this area. As noted herein, much of this case law deals with Quarles-type Miranda issues with known or suspected weapons, or specific potential or known victims, involved. Appellant has found no reported decision approving of law enforcement ignoring Miranda or the invocation of counsel without a known missing person or known potential victims. To begin with the seminal case of New York v. Ouarles, 467 U.S. 649 (1984) (cited by the Appellate Division below); there a rape victim ran up to a police officer and told him that her attacker, who was armed with a gun, ran into a particular super market. A specific description of the perpetrator was provided. The suspect was detained, wearing an empty holster. The obvious (and proper) question, before Miranda. was asked regarding the location of the gun, as there was known potential victims in the likely area of the gun incii1p flie. ztnre Iii it Ml -657 Much of the federal case law following Quarles has focused on questioning suspects regarding the location of weapons (United States v. Mobley, 40 F.3d 688, 693 [4th Cir. 2003] ; 25 United States v. Talley, 275 F.3d 560, 562-565 [6th Cii. 2001]; 26 United States y. 25 Here, defendant was led away without clothes on, after the scene had been secure; there was no ongoing emergency; Quarles exception thus inapplicable. 26 Here, the police were justified in asking defendant about the location of weapons before Miranda, during execution of a warrant; residence not completely secured at time. 42 Simpson, 974 F.2d 845, 847 [7th Cir. 1992]; 27 United States v. Brady, 819 F.2d 884, 886- 888 [9 th Cii. 1987]), 28 whether the suspect had needles or drug paraphernalia in his possession (United States v. Reyes, 353 F.3d 148, 152-153 [2d Cir. 2003]; 29 United States v. Carillo, 16 F.3d 1046, 1049-1050 (9th Cir. 1994]), 30 or identifying known potential victims. United States v. Padilla, 819 F.2d 952, 960-961 (10th Cir. 1987) . 31 A comparative survey of other states’ decisions is consistent with the federal jurisprudence; particularly regarding scenarios where weapons or drug needles (People v. Cressy, 47 Cal. App.41h 981, 986-989 [1st App. Dist. 1996])32 are involved and identified potential victims are endangered. See Lamb v. State, 251 P.3d 700, 704-706 (Nev. 2011); n Brown v. State, 982 27 Here, the officer reported to a domestic violence disturbance involving a gun. At the defendant’s apartment were two women and three small children. The women informed the officer that defendant had threatened them with a gun. The officer then properly questioned defendant without Miranda, and the location of the gun was revealed. 28 Here, the officer properly questioned the suspect without Miranda regarding whether he had a gun in his car trunk, after receiving a call regarding a man striking a woman and forcing her into a vehicle. The officer was also faced with a growing crowd in the area, including an armed motor cycle gang member. 29 Here, a firearm question was asked of known drug dealer. 30 Here, the officer properly asked the defendant, before Miranda, during a preliminaryjail search, whether defendant had drugs. Incriminating statements were made. 31 Here, the police reported to a scene where shots had been fired at defendant’s residence. Upon seeing bullet holes in the window, after disarming defendant, the police properly asked, "How about inside the house?" The defendant replied, without Miranda, "I shot someone inside the house." 32 Here, the officer, before Miranda, properly asked the defendant whether he had any needles in his possession. Here, a murder suspect made statements regarding a revolver, pre-Mirandg, where defendant’s apartment and car had not been searched yet, and it was not known if an accomplice had access to the apartment. 43 So.2d 565, 598-601 (Ala. Crim. App. 2006); Benson v. State, 698 So. 2d 333, 334-337 (Fla. Dist. Ct. App. 1997); Commonwealth v. Kitchings, 40 Mass. App. 591, 597-598 (1996); 36 State v. Lopez, 139 N.H. 309, 311-313 (1994); ’ Hubbard v. State, 500 So.2d 1204, 1223-1226 (Ala. Crirn. App. 1986); State v. Turner, 716 S.W.2d 462, 465-466 (Mo. App. 1986). But what about suspects with apparent blood on them? Two out-of-state examples are helpful here. In Smith v. State, 646 So.2d 704, 707-708 (Ala. Crim. App. 1994), an officer responded to a shooting, but did not know how many people had been shot or by whom. Defendant was observed walking towards the officer covered in blood. He was told to lie down, and before Miranda, was properly asked if he had been shothimself. To this defendant stated, among other things, "I shot and killed [the victim]. He’s inside. You Here, a murder suspect had initially indicated that he had thrown a gun into a wooded area near the victim’s apartment; a location near where children were living. Questioning without Miranda was appropriate. u Here, the defendant was asked by police how many crack cocaine rocks he had swallowed out of concern for the defendant’s health. -ft r 1 I 1 -------------- ------------------ -- Here, an officer ooserveu a loaded ammunition cup jor a semi-autornauc nanci gun in an open glove compartment in a vehicle. Two of the four passengers (all male) were placed in custody. All four were properly asked where the gun was - - before Miranda warnings were provided. One of the passengers gave the information. ° Here, the police properly questioned a suspect emerging from a building where shots had been fired. The questions occurred during a physical altercation between the officers and the suspect, who was wearing an empty holster. 38 Here, there were pre-Miranda questions regarding the location of a gun asked of a murder suspect at the scene of a shooting, where two shots were fired. Defendant admitted that he was carrying a gun. n Here, the police were called to the defendant’s home after defendant had shot his son during an altercation. The officer approached and, before Miranda, properly inquired as to the location of the gun. 44 may want to check on him." Under the public safety exception and the "rescue" doctrine, the statements were admissible. Id. Smith is a perfect example of the police having a basis of reliable information that a known potential victim may be immediately in danger. The apparent blood on defendant Smith was a piece of a puzzle, with other pieces present to finish completing the picture. In Mr. Doll’s case, there were no matching pieces. New York’s Constitution requires a clearer picture before the right to counsel may be suspended. Another blood example is State v. Ramirez, 178 Ariz. 116, 122-124 (1994), where officers responded to a neighbor’s call regarding screaming and banging from the victim’s apartment. Upon arriving, the police initially observed through a bedroom window a man wearing a shirt. The victim’s body was ultimately found on the floor, and the previously seen man, now shirtless, was covered in apparent blood. Before Miranda, the police properly asked defendant what was going on, who else was in the apartment and whether anyone else was hurt. Incriminating statements were made. Here again, the apparent blood on defendant Ramirez fit the puzzle that was now complete. Id. California has a so-called "rescue" doctrine where law enforcement may question a suspect to save the life of a kidnapping victim if there is a chance that the person may still be alive. See People v. Davis, 46 Cal. 4th 539, 588-598 (2009) (recognizing, at p. 593-594, that "[u]nder circumstances of extreme emergency where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody even though answers to the questions may incriminate the witness" [emphasis 45 added]). In terms of there having to be a known missing person, this is at least consistent with Krom. But this Court is asked to consider Illinois’ rule on the right to counsel, though it may indeed conflict with Krom. In People v. Labberte, 246 IlL App.3d 159, 164-172 (2d Dist. 1993), the court correctly recognized (at p. 172) that the Quarles public safety exception only applied to Miranda violations. Because defendant Labberte had invoked his right to counsel, despite there being a known and missing one-year-old kidnapped victim (what could be more important?), the statements made in response to post-invocation questions were to be suppressed. 14. In light of the potential danger in expanding Krom, as demonstrated at bar, appellant asks this Court to revisit Krom’s continued validity, and at the very least, reaffirm its parameters to require an identified potential victim and reliable independent evidence otherwise connecting the suspect with the missing person. Only then is the purported emergency to be considered. Only then can this State’s constitutional right to counsel remain "jealously guarded." L . . V. JDti; Liii; Ji UiIiI1tt Even assuming that the so-called public safety / emergency exception applied here, which it did not, once Mr. Benaquist’s body was discovered, the exception was vanquished. It is uncontested that: (1) the purported emergency had dissipated at 1:30 a.m. when the body was found, (2) the police facilitated the question and answer session at the station with Teresa after 3 am., and (3) Investigator Kautz utilized the situation in order to obtain more incriminating information against Mr. Doll. With the body found, and the 46 police having already checked on Mr. Doll’s family, the pretext of an emergency was certainly over before approximately 3 a.m. when Teresa arrived at the station. To quote this Court from Krom, "[the police.., should not have continued to question the [appelijant in the absence of counsel once the victim’s body was found." Krorn, 61 N.Y.2d at 200 (emphasis added). As this Court elaborated: At that point the questioning could only serve to provide evidence for use against the defendant at trial. That is precisely the type of inquiry in which the State right to counsel was intended to provide the accused with the added protection by prohibiting the police, and prosecutors, from questioning him in the absence of counsel when he had previously asserted the right during the police investigation. Id. at 200. 40 There was no conceivable emergency or public safety concern at bar once the body was found. Investigator Kautz, knowing that counsel had been invoked, admittedly utilized Teresa as a vehicle for obtaining incriminating evidence - - not to protect a potentially injured party. Avoiding again Mr. Doll’s invocation of counsel, however, the Appellate Division below found that Teresa was not acting as an agent of the police. Again, there is no support in the record for this determination. In only conclusory terms, without any specific findings of fact, the court rejected appellant’s argument that Teresa’s conduct must be attributable to law enforcement, simply citing to the factors set out in P eople v. Ray, 65 N.Y.2d 282, 286 (1985). Doll, 98 A.D.3d at 366-367. But appellant’s friend, Teresa, was, for all practical purposes, used as an extension of law enforcement here. This included Teresa asking almost identical questions as those posed by the police on North Lake Road. Accord People v Zalevsr, 82 A.D3d 1138, 1138 (2d Dep’t 2011) (holding that once the body is found, all subsequent statements to the police must be suppressed). 47 Though Teresa talking to Mr. Doll was not law enforcement’s initial idea, a potential factor under Ray, this becomes irrelevant under these unique circumstances, as Investigator Kautz’s decision to permit the conversation was nothing short of exploitive and opportunistic. The only legal choices for Investigator Kautz here were to either deny Teresa’s early morning I middle of the night request to see Mr. Doll, or give them privacy to consult. Standing there with pen and paper in hand was not proper. Unlike the common scenario where a suspect’s statement is made in front of an unsuspecting booking officer (see People v. Sobolof, 109 A.D.2d 903, 904-905 [2d Dep’t 1985]), the Kautz / Teresa interrogation was literally thrust upon the confined and un- Mirandized Mr. Doll. Without Kautz’s facilitation, affirmatively arranging for the taking of the incriminating statements, Mr. Doll’s right to counsel would not have been further violated. For sure, private actions may become "so pervaded by governmental conduct that it loses its character as such and invokes the full panoply of constitutional protections." See Ray , 65 N.Y.2d at 286 (recognizing as factors: clear connection between law enforcement and private investigation, completion of private act at instigation of police, close supervision of private act by the police, and private act undertaken on behalf of the police to perform police objective). Contrary to County Court’s conclusion (App. 399 [Decision, p. 12]), Kautz’s direct facilitation and monitoring of the questioning plainly made Teresa his agent. 48 Most importantly, while truly "spontaneous" statements made after the invocation of counsel are admissible (Krom, 61 N.Y.2d at 199),’ the burden should not have fallen on Mr. Doll to fend off the latest police tactic here to obtain statements. Again, as this Court recognized in West, "[a] suspect whose right [to counsel] has indelibly attached has no obligation to keep the police informed as to the status of the attorney-client relationship:’ 81 N.Y.2d at 376. It was certainly not Mr. Doll’s idea to speak to Teresa in front of the police at 3:30 am, nor was he given the option not to. 42 When a suspect invokes his sacred state constitutional right to counsel, he has already expressed his desire not to provide further incriminating statements to (and in front of) law enforcement. In other words, Mr. Doll was not obliged to stop the train again. No further effort to protect 41 Unlike the Krom decision (at p. 200), the Appellate Division in our matter did not make any findings regarding the issue of spontaneity regarding the statements at the station For statements to be spontaneous, it must "be shown that they were in no way the product of an ’interrogation environment’, the result of ’express questioning or its functional equivalent." People v. Harris, 57 N.Y.2d 335, 342 (1982), citing People v. Stoesser, 53 N.Y.2d 648, 650 (1981). Teresa and Mr. Doll were in law enforcement’s domain. Indeed, Kautz controlled who went to what room, who was questioned, by whom, and when. What could be more orchestrated than the police utilizing a friendly face to extract incriminating statements from a suspect held in custody for six hours, who had already tried in vain to stop the interrogation? The placement alone of Teresa in that room after 3 am, provided a false sense of comfort to appellant. indeed, Mr. Doll was at his greatest vulnerability, and the police exploited it to the fullest extent. As the Second Department observed in Sobolof, Volunteered statements are admissible provided the defendant speaks with genuine spontaneity and not as a result of "inducement, provocation, encouragement or acquiescence, no matter how subtly employed." Spontaneity, in this context, turns on whether defendant’s statement was "triggered by police conduct which should reasonably have been anticipat ed to evoke a declaration from the defendant" 109 A.D.2d at 904-905 (emphasis added and internal citations omitted). 42 Only Teresa was warned before hand that Investigator Kautz would be recording the conversation (App. 370). himself should have been necessary for Mr. Doll’s invocation of counsel to be honored here.43 Though not appreciated by the Appellate Division herein, that law enforcement violated Mr. Doll’s rights in "plain sight" (or as the People phrased it below, in "open view" [App. 370]) is also of no moment. " The police need not wear a disguise (i.e., through a clandestine agent in a Cardona scenario) to improperly illicit statements. To believe otherwise is to believe that a suspect has the capacity under our state constitution to waive the right to counsel - - after invocation - - outside the presence of an attorney. That is simply not the law in New York. Mr. Doll’s invocation of counsel closed the curtain on all legal questioning as the parties stood out in the cold at North Lake Road. All questioning after that point violated both the state and federal constitutions. Investigator Kautz testified that he anticipated more facts would be forthcoming from this conversation at the station (App. 333), and strongly suspected that Mr. Doll was involved in the homicide. This is why, unlike a suspect speaking on a booking office phone that happens to be in front of officers. Kautz insisted on being present for what would ordinarily be a private conversation. In other words, Kautz acknowledged facilitating the questioning by appellant’s friend, in the hope that appellant would say u See again Sobolof, 109 A.D.2d at 904 (where the defendant initiated contact with a third party in the presence of law enforcement); People v. Eldridge, 213 A.D.2d 667, 668 (2d Dep’t 1995) (same). Respondent also argued before the Appellate Division that Kautz did not engage in "surreptitious maneuvering;" and that appellant was aware of his presence during the conversation. 50 something incriminating (App. 334-35). Indeed, as appellant previously argued, Kautz orchestrated the meeting and Mr. Doll had no say in the matter. Arranging to have appellant’s friend ask questions in front of Kurtz was certainly the "functional equivalent" of police interrogation. See again Harris, supra, at 342. And the statements that resulted were utterly the result of an "interrogation environment?’ Id. None of the People’s cited cases before the Appellate Division involved law enforcement arranging to have a third party solicit information from a suspect who had already invoked his right to counsel, and was deprived of even Miranda warnings - - despite being held for hours in custody. Investigator Kautz, with pad and paper in hand, unequivocally expected to hear incriminating statements from appellant as a result of this arranged question and answer session; knowing appellant had been found with blood on him and had already invoked his right to counsel. Kautz also knew about the body having been discovered at that point (App. 323). Investigator Kautz thus realized that if the right buttons were pressed, incriminating statements would follow With a naïve agent to do his dirty work for him, all Kautz had to do was take notes. As it turned out, Mr. Doll was simply unable to fend off this latest police tactic to elicit statements. Of course, as appellant had already requested an attorney, it should not have been his burden to do so. Again, it was not appellant’s idea to speak to anyone, and he was never given the option not to. Finally, as both Investigator Kautz and Teresa were both in close proximity of defendant, and as Teresa’s questions were essentially the same as those asked at North Lake Road, how would Mr. Doll know that it was just his "friend" seeking this 51 information? Why would appellant not believe that this interrogation was being carried out on behalf of the police? And this being so, why would anyone not think that appellant was coerced into speaking? Again, this being the "functional equivalent" of interrogation, Mr. Doll had no capacity to make this decision VI. Involuntary Statements As averred above, the circumstances herein reveal that Mr. Doll’s statements were involuntarily made. 45 As this Court has noted, the rules protecting the right to counsel and the prohibition against involuntary statements are fundamental to our justice system: For it is a complex of values that is at the heart of the rule, codified in New York as C.P.L. 60.45 that an extrajudicial confession involuntarily made is inadmissible against an accused. Certainly since at least Brown v. Mississippi, it has come to be accepted that the requirement for voluntariness of confessions, though heavily influenced by the privilege against self incrimination, is essentially a matter of due process. People v. Anderson, 42 N.Y.2d 35, 37-38 (1977) (case law citations omitted); see also People v. Davis, 75 N.Y.2d 517, 520-522 (1990). VI11 1aUtU15 ’L vai ecateu all LEVH’J1LU1IU1 WIIUIIy 1UUO!1SISLIJII with the protection of Mr. Doll’s constitutional and C.P.L. 60.45 rights. These included: (1) ’ The involuntariness issue was unsuccessfully argued in County Court below (App. 757-58 [defense motion papers]), as well as before the Appellate Division. See generally C.P.L. 60.45; People v. Huntley, 15 N.Y.2d 72, 77-78 (1965); People v. Wcathcrspoon. 66 N.Y.2d 973, 974 (1985). 46 Accord Yarborough v. Alvarado, 541 U.S. 652, 661 (2004) (recognizing "the compulsion inherent in custodial surroundings," citing, Miranda, 384 US at 458); Withrow v.Williams, 507 U.S. 680, 693-694 (1993) (under due process approach; considering totality of circumstances in determining voluntariness, including failure to advise of rights and to have counsel present during custodial interrogation). 52 interrogation for several hours by three police officers, and one agent of the police, without counsel present; (2) no Miranda warnings provided prior to questioning; (3) Mr. Doll interrogated by Deputy Reeves (regarding blood on the van) in the freezing cold outside of the patrol vehicle at North Lake Road, while still in custody; (4) Mr. Doll in custody for several hours at North Lake Road; mostly sitting in the back of a caged patrol vehicle; in the presence of several uniformed and armed officers; handcuffed behind his back; and at the station, being chained to the floor in a holding cell (or interrogation room); (5) the questioning of Mr. Doll continuing into the early hours of the morning, thus occurring while he must have been physically and mentally tired; (6) law enforcement illegally rejecting Mr. Doll’s several invocations of counsel; and (7) Investigator Kautz, knowing full well that Mr. Doll had invoked his right to counsel, utilizing a vulnerable civilian to illicit incriminating (and custodial) statements. After hours of being held in custody, after unsuccessfully requesting an attorney, in the early morning hours of February 17th, while still shackled to the floor, Mr. Doll spoke to his friend in the presence of law enforcement. Those statements became the People’s trophy in summation (see App. 1609-1614). But under the circumstances, they were involuntarily elicited, and thus must be suppressed. VII. Conclusion Handcuffs, caged patrol vehicles, multiple uniformed and armed officers, and holding cells are the classic hallmarks of custodial interrogation. At bar, appellant spent hours of incarceration without the benefit of Miranda warnings - - after invoking his right to counsel. Then he was subjected to civilian questioning orchestrated by law enforcement - - an hour and a half to two hours after the body was found - - with law enforcement standing there, ready to use any statements against appellant. Does this at all sound like the police trying to solve an ongoing kidnapping like in Krom and Kimes? And what if the body wasn’t found the night that appellant was taken into custody? Still, without probable cause to officially arrest, how long would appellant’s "temporary detention’ ’ have gone on for? The police were simply not authorized to do what they did here. It is a grave event in a criminal case to dishonor an invocation of counsel. But to utilize a suspect’s friend to elicit incriminating responses, under these circumstances, borders on the insidious. Using a friendly face is easily a more effective tactic than having a uniformed officer in the room yelling at a suspect. The police said "no" to an attorney here, but "yes" to having an agent extrapolate incriminating statements. Not surprisingly, Mr. Doll seeing someone he knew at 3 or 3:30 a.m. brought on verbal responses, including another invocation of counsel. 47 He was in no position to decide on whether to speak. All of Mr. Doll’s emotional barriers had been weakened at this point. Without the benefit of Mirnn& w2rninoc inrrrnincitiricr cft Tlfmf’z were ciinnlv nIl1Ir2l cnnseniicmr.e l-ierp ---------c------------- -. -------- 1 - - Indeed, under Miranda, the object of the warnings, and the Fifth Amendment prohibition against compelled incrimination, is to assume "a continuous opportunity to exercise [the right to silence]" (Davis v. United States, supra, at 471 [Souter, J., concurring], citing Miranda, 384 U.S. at 444), not to test a suspect’s breaking point, with pen and pad ready when it happens. Mr. Doll was utterly vulnerable to the very early morning questioning at the station under the circumstances. One has to wonder if Investigator Kautz would have confidently stood there with pen and paper in hand had Teresa showed up at 3 pk, instead of 3 a.m. 54 When a suspect - - without even being warned under Miranda - - invokes the right to counsel in our state, he or she is making an affirmative and conscious decision to immediately end all questioning, and seek out the professional and legal assistance of an advocate. Appellant respectfully requests that this principle be the focal point of this Court’s determination at bar Mr Doll’s statements should have been suppressed as a violation of his state and federal constitutional rights. Anew trial is now in order. 55 POINT II APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES (NY. CONST. ARTICLE I, §§ 6 AND 12; U.S. COAST, AMENDS. iv, VI AND XIV) WERE VIOLATED BY APPELLANT’S WARRANTLESS ARREST AND SUBSEQUENT TRANSPORT TO THE STATION, AS THERE WAS NO PROBABLE CAUSE. On February 16, 2009, the Genesee County Sheriffs Department came upon a situation that may have appeared unclear, but was far from establishing probable cause to believe that a crime had been committed. From the moment Deputy Diehl heard from the truck driver who called in a "suspicious person" report, Mr. Doll was placed in handcuffs and made (by threat of force) to sit in the back of a caged patrol vehicle. For the next several hours, Mr. Doll was interrogated by three police officers at North Lake Road, sometimes as he sat in the vehicle, and sometimes as he was made to stand outside in the cold, as he was shown the apparent blood on his mother’s van. Eventually, Mr. Doll was transported to the station where he was chained to the floor and eventually questioned again in the presence of law enforcement. As argued below, Mr. Doll challenges the legality of his being placed in custody for such an extended period of time, as well as his eventual transport to the station. Indeed, all evidence seized from his person, clothing and vehicles, as well as all derivative evidence (including any subsequent statements and observations), were "fruit of the poisonous tree," 56 as it flowed from the initial illegality and was not sufficiently distinguishable to be purged from the primary taint. See generally Mapp v. Ohio, 367 U.S. 643, 655 (1961); Wong Sun v. United States, 371 U.S. 471,488-489 (1963). I. Street Encounters Probable cause is needed to legally execute an arrest (see People v. DeBour, 40 N.Y.2d 210, 216 [1976]) and to transport a suspect to the station for questioning. Dunaway v. New York, 442 U.S. 200, 213-215 (1979). Put another way, a warrantless arrest is a seizure violative of the state and federal constitutions unless based upon probable cause (see C.P.0 70.10 [2]; 140.50 [1]; 140.10 [1][b]), meaning "information sufficient to support a reasonable belief that an offense has been or is being committed by the suspect." Dunaway, 442 U.S. at . 48 Under the circumstances, it must appear to be more probable than not that a crime has occurred and that the one arrested is the perpetrator. DeBour, 40 N.Y.2d at 216, 223. There must be facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the officer to conclude that an offense has been or is being committed, and that the defendant committed the act. People y. Bigelow, 66 N.Y.2d 417, 423-424 (1985). But "[e]ven without a technical formal arrest, a suspect’s detention may in fact be the equivalent of an arrest, requiring probable cause." People v. Flicks, 68 N.Y.2d 234, 239 (1986). While no formal "checklist" should he See also People v. Shulman, 6 N.Y.3d 1, 26 (2005); People v. Cantor, 36 NY.2d 106, 112-113 (1975). See also Dunaway, 442 U.S. at 214-215 (observing that "[n]othing is more clear than the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ’arrests’ or ’investigatory detentions" [citations omitted]). 57 applied (Dunaway, 442 U.S. at 239-240), courts look to "what a reasonable man, innocent of any crime, would have thought had he been in the [suspect’s] position." Yukl, 25 N.Y.2d at 589. ° On the other hand, a simple warrantless stop and frisk of a suspect requires only reasonable suspicion of criminal activity (see C.P.L. 140.50 [1], [3]), meaning "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Hicks, 68 N.Y.2d at 238. ’ But the narrowly drawn Terry exception "for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons." Hicks, 68 N.Y.2d at 240-241. Under certain circumstances, the police must "be able to detain the individual for longer than the brief time period involved" in [gy. Hicks, supra at 241 (requiring reasonable suspicion to transport suspect for a show-up identification procedure). 52 In short, "detention for custodial interrogation - - regardless of its label - - intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the ° People v. Ferry, 1 AD.2d 952 (4 01 Dep’t 1989) (noting that "[w]henever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment"). ’ See also People v. Holloman, 79 NX2d 181, 192 (1992); DeBour, 40 N.Y.2d at 215, 223; Cantor, 36 N.Y.2d at 112-113 ("[v]ague or uriparticularized hunches will not suffice"); Terry v. Ohio, 392 U.S. 1, 26-27 (1968). 12 But see People v . Ryan, 12 N .Y3d 28, 30-31 (2009) (illegal 13 minute detention prior to photo- array being compiled). 58 traditional safeguards against illegal arrest." Dunaway, 442 U.S. at 216; id. at 212-214. Under such circumstances, probable cause is mandated. Id. H. The Decisions Below: Insufficient Evidence of an Emergency County Court properly found that probable cause did not exist for Mr. Doll’s arrest; however, the purported emergency at hand was said to have justified law enforcement’s actions (App. 398-99). The Appellate Division did not disagree on this point, but concluded that despite appellant being in custody, and having been placed in handcuffs and into the back of the caged patrol vehicle, appellant was not under arrest. Rather, according to the Appellate Division, following a level one DeBour stop, Mr. Doll was merely the subject of a "temporary detention" while the police attempted to locate the purported victim (or victims). Doll, 98 A.D.3d at 367-368. Once again, there is no support in the record for court’s determination in this regard. Here is the closest that the Appellate Division came to addressing the Dunaway issue: We reject defendant’s contention that his detention in handcuffs was a de facto arrest requiring probable cause; rather, we conclude that the detention was a level three intrusion, requiring reasonable suspicion... Here, Diehi was informed by a citizen that defendant had been attempting to conceal himself, and defendant provided varying and incredible explanations of his conduct in response to Diehi’s inquiries. Diehl also observed blood on defendant’s clothing and person, 53 and defendant’s explanation for the presence of the blood was patently false. Consequently, the depMty properly concluded that defendant had committed a felony or a misdemeanor, which provided reasonable suspicion to detain him. We further reject defendant’s contention that he was de facto placed under arrest when the deputies seized his clothing. Although the record does not clearly establish the As noted above, this was only apparent blood, and it was unknown whether the substance was from a human or animal. 59 exact time of that seizure, the record does establish that it occurred after he was handcuffed. Therefore, the deputies had reasonable suspicion that criminal activity was afoot at that time, justifying the level three continuing temporary detention of defendant while they attempted to locate the victim or victims. Defendant’s contention that the deputies were only permitted to detain him briefly while they searched the immediate area for a victim is without merit. An emerg ency that unquestionably threatened the life of a 54 victim or victims existed, as discussed above, and defendant provided the deputies with the best avenue of attempting to provide assistance to such victim or victims. In this contention, defendant relies upon his Fourth Amendment rights. The emergency doctrine provides an exception to those rights when the law enforcement agents involved are confronted with an immediate need to provide aid or assistance to a possibly injured individual. Although it is not yet settled whether, under the New York State Constitution, the rule in Mitchell will yield to the rule in Brigham City, Utah v. Stuart, 55 the uncertainty is of no moment because the facts presented herein qualify as an emergency under either rule. Thus, we deem the protection provided by the "Fourth Amendment inapplicable [because] the exigencies of the The court is careful here not to say "the" victim, as there was in fact no support in the record of a known victim. As the Appellate Division notes here, this Court in People v. Dallas. 8 N.Y.3d 890, 891 (2007) declined to address the applicablilty of Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) to this Court’s emergency doctrine holding in People v. Mitchell, 39 N.Y.2d 173, 177-178 (1976). While other courts have opined, incorrectly, appellant believes, that the second prong of Mitchell (i.e., the "primary motivation" factor) was overruled by Brigham.ity, see People v. Leggett, 75 A.D.3d 609, 610 (2d Dep’t 2010), the third Mitchell prong dealing with causation between the emergency and the police action, most crucial at bar, was not addressed. But with regards to the second prong, as this Court knows, this is the only court in the land that can officially "overrule" a New York State constitutional principle. Similar to the "plain view" test of People v. Jij, (81 N.Y.2d 106, 110 [1993]), which requires that an object’s incriminating nature be immediately apparent to comply with state constitutional standards, requiring that an officer’s primary motivation under the second Mitchell prong not be to seize incriminating evidence only serves to protect a suspect from overeager law enforcement conduct. Mitchell does not require that the emergency be the only motivation for the officer’s conduct. See also People v. Molnar, 98 N.Y.2d 328, 333 fn 4 (2002) (supporting rationale for second Mitchell factor). There is thus no reason for this Court to touch a hair on Mitchell’s head here. ZE situation make the needs of law enforcement so compelling that the [detention] is objectively reasonable under the Fourth Amendment’. Doll, 98 A.D.3d at 367-368 (emphasis added, and other internal case citations omitted). This Court should note a few things here. First, there is no support in the record to conclude that appellant "committed a felony or a misdemeanor." [4. at 368. It is telling here that the Appellate Division does not indicate exactly what "felony or misdemeanor" that it had in mind. Second, the Appellate Division opines that "[a]n emergency that unquestionably threatened the life of a victim or victims existed..." Id. at 368. But as discussed in detail above, there is no support in the record for this conclusion either. The police knew nothing of the sort. They had apparent blood from either a human or an animal. Further, the Appellate Division posits that the Mitchell (Fourth Amendment) emergency doctrine may be impacted by Brigham City, Utah v. Stuart, 547 U.S. 398 (2006). Doll, 98 A.D.3d at 368. This Court is asked, however, not to retreat from the constitutional principles set out in People v. Mitchell, wherein the police were searching for a hotel chambermaid, missing for five hours. 39 N.Y.2d at 175-77. The Mitchell factors, which were not specifically addressed in the context of Article 1, § 12 of the state constitution, require that: (I) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by intent to arrest and seize evidence; (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. 39 N.Y.2d 173, 177. As described above, law enforcement soundly fails all three prongs of the Mitchell standard at bar. 61 Moreover, in Brigham City v. Stuart, sUr a, the police responded to an early morning hour noise complaint. Upon arriving, an altercation and fight could be heard. A fight could also be seen through a back window; an adult was seen being punched in the face by a juvenile and spitting blood into a sink. J4. at 406. Under the circumstances, there was a need to assist persons who were either seriously injured or threatened with same. Id. at 403. It was not the seriousness of the investigated offense or the officers’ subjective intent that controlled; rather it was the objectively reasonable basis for believing that a person was in need of immediate aid that carried the day. Id. at 406. Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546 (2009), also cited by the Appellate Division herein, considered the Brigham City decision. In Fisher, the police reported to a residential disturbance, where they found broken windows, blood on the hood of a truck (which was smashed) and a damaged fence. The defendant was observed inside the residence screaming and throwing things. I. at 547. The officers knocked, but defendant refused to answer. Defendant’s hand was cut, and he was asked if he needed medical attention.The defendant also pointed a gun at the officers. Id. The officers found signs of a recent injury, perhaps from a car accident, as well as violent behavior inside the home. Id. at 548-549. The defendant might have hurt a person inside the home, including himself. Id. at 549. Put another way, "it was reasonable to believe that [defendant] had hurt himself.. and needed treatment that in his rage he was unable to provide, or that [defendant] was about to hurt, or had already hurt, someone else." Id. Though the Appellate Division below seized upon the apparent federal standard here that "officers do not need ironclad proof of "a likely serious, life-threatening" injury to 62 invoke the emergency exception" (PQII, supra, at 364; Fisher, supra at 549), the facts of Fisher are utterly different from the facts at bar. When the police transported appellant to the station, there was no known person whose safety and protection was being furthered by the moving of appellant therein. The Genesee County Sheriff’s Department was not securing a residence where a child was in danger or entering a home where a suspect might hurt himself. Rather, they were moving a purported suspect of some unknown possible crime to the station to sweat him out. It was a law enforcement tactic to investigate ambiguity, not to protect a known person in danger. Aside from there being insufficient evidence of an immediate need to protect a human life (prong one under Mitchell), the third prong (supra, at 177), requiring "some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched," fails miserably here. Finally, as noted above, this Court has not hesitated in the past to recognize more protections for the criminal defendant under our state constitution, as opposed to its federal counierarL See again P.J. Video, 68 N.Y.2d at 303. Particularly considering the facts at bar where law enforcement brought appellant back to the station to just have him sit (no longer subject to questioning until after the body was found), expanding the state emergency (Fourth Amendment-related) doctrine beyond the Mitchell standard would effectively strip Article I, § 12 of any meaning. III. The Arrest in Our Matter Mr. Doll’s extensive confinement on the cold night of February 16, 2009 was a textbook example of custody and arrest. From the show of force by uniformed law enforcement officers to the caged patrol vehicle where Mr. Doll sat against his will for hours in handcuffs, Mr. Doll was indeed a prisoner. Instructive in the determination as to whether the functional equivalent of an arrest occurred here are the Hicks court (68 N.Y.2d at 240, 242-243) factors; that is whether: (1) defendant was handcuffed; (2) there was a show of force; (3) defendant was permitted to park his own car nearby before accompanying the police; (4) defendant was taken to the police station; (5) the time of detention was brief and the distance for the transport was short; (6) defendant was told of a specific and limited purpose for the detention; and (7) whether any information was asked of defendant after the initial inquiry. Appellant’s answer would be the opposite to defendant Hicks for most of the above factors. His mother’s van was seized and towed several hours before a body was found. Handcuffed behind his back for hours and confronted by armed officers exploring the existence of an unknown incident, Mr. Doll was transported to a police station holding cell, had his clothing seized and was chained to the floor - - without being told any specifics as . - [Ci_ 56 10 when fie ungui DC !CS CU. Further, Mr. Doll was subsequently questioned at the station by an agent of the police under circumstances (as set out in Point I above) that raised crucial right to counsel issues. Seizing a suspect "without probable cause in the hope that something might turn up" is 56 See also People v. Robinson, 282 A.D2d 75, 80, 82 (1st Dep’t 2001) (criticizing the handcuffing of defendant after pat down determined him to be unarmed; a de facto arrest occurred); People v. Parker, 49 AD.3d 974, 976 (3d Dep’t 2008) (cited by the People below; where defendant was handcuffed for merely 10 minutes as a protective measure); Peopl e ’. Gatlig, 38 A.D.3d 239, 240 (l’ Dep’t 2007) (also cited by the People below; where defendant was briefly handcuffed while police awaited arrival of victim in a known crime). prohibited. Dunaway, 442 U.S. at 218. Without consent, probable cause was required for appellant’s seizure and transport below. But none existed. IV. No Probable Cause As set out in POINT I above, on February 16, 2009, the police had before them a man with, except for the area of his knees, what appeared to be specs of blood on his clothing, face, hands and vehicle, who had been seen crouching near two vehicles at night in the parking lot of a closed auto shop. Mi. Doll had apparently provided, for argument’s sake, unconvincing responses to law enforcement’s inquiries. But even assuming, again, just for argument’s sake, that a third prong DeBour stop and frisk was justified, there can be little doubt that the facts before the police at North Lake Road were nowhere near reaching probable cause. Though it failed to address the Dunaway doctrine, County Court agreed that probable cause did not exist. 58 And the Appellate Division, which relies on the existence of the emergency exception to the Fourth Amendment, also did not find evidence that probable cause existed. Pii. 98 A.D.3d at 3 67-368. The police, wondering whether a deer had been hit, not knowing whether the red stains on appellant’s clothing were blood, whether it was animal or human blood (and if so, whose), did not even know whether any crime had been committed, much less whether Mr. Doll had committed one. There was no body found until 1:30 a.m., overfour and a half ’ The People’s argument below that Mr. Doll "at no time indicated his lack of consent to [his] detention" (App. 368) completely shifts the burden to appellant from its proper place; that being on the shoulders of the prosecution. See generally People v. Guzman, 153 A.D.2d 320, 324 (0’ Dep’t 1990) (recognizing that "[t}he People have a heavy burden to establish voluntary consent and courts should indulge every presumption against [a] waiver"), citing People v. Gonzalez, 39 N.Y.2d 122, 128 (1976). (App. 398 [Decision, p. i1]) 65 hours after Mr. Doll was first placed in custody. Then even at the time of the eventual formal arrest at the station (in the early morning hours of February 17th), no connection between the blood on Mr. Doll and the deceased had yet been made. As County Court correctly found (App. 399 [Decision, p. 12]), there was no trespass either, as there were no "no trespassing" or "no parking" signs at the parking lot. Further, the auto shop owner was not asked if he had told Mr. Doll that he could park there. 60 For sure, the People’s theory before the Appellate Division that the police investigating, but not finding evidence of a crime (App. 368) actually built up their case for keeping Mr. Doll in custody without probable cause ignores decades of Fourth Amendment jurisprudence, as well as common sense. 61 The matter at bar is a classic case of law enforcement acting on a "hunch," rather than sufficient cause under the law - - thus making the extended detention under the circumstances illegal. V. Respondent’s Argument Before the Appellate Division: The Meaning of Dunaway Aside from the People’s cited case authority being easily distinguished from our matter, the respondent also opined before the Appellate Division that there was nothing inherent in the jurisprudence involving investigatory detentions which would preclude Respondent’s suggested authority presented below for keeping Mr. Doll in custody without probable cause is easily addressed. Se again Krorn, 61 NY.2d at 193 (where police were looking for a known kidnapping victim); Molina, 248 A.D.2d at 490 (same); Perez, 293 A.D2d at 330 (where defendant consented to being transported, and was not handcuffed once he reached the station); People v. Logan, 243 A.D.2d 920, 921 (3d Dep’t 1997)(where reasonable suspicion existed only for a temporary level three DeBour detention). 60 App. 258, 267, 305-06, 341. The Appellate Division bought into this idea as well. PQ11, 98 A.D.3d at 366-368. analysis thereof in light of the public safety exception. As Mr. Doll argued previously, any "analysis" performed here must go back to the fundamental concerns which kept the high court from adopting an ad hoc "case by case" standard when an individual is in custody. Said the court in Dunaway: In effect, respondent urges us to adopt a multifactor balancing test of "reasonable police conduct under the circumstances" to cover all seizures that do not amount to technical arrests. But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the "often competitive enterprise of ferreting out crime." (citation omitted) A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront. Indeed, our recognition of these dangers, and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but those narrowly defined intrusions, the requisite "balancing" has been performed in centuries of precedent and is embodied in the principle that seizures are "reasonable" only i f supported by nrobabie cause. Thjypy, 442 U.S. at 213-214 (emphasis added). Further noted the court: "[To] argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ’arrests’ or investigatory detentions." Dunaway, 442 U.S. at 214-215 (emphasis added), citing Davis. Mississippi, 394 U.S. 721, 726-727 (1969). There is no reported case that condones the police transporting M. appellant to the station because of ’a possible emergency’ that might have developed into something if only the police could just hold appellant for a few more hours. 62 Mitchell, pr , certainly does not approve of this. Respondent also argued below for law enforcement to be granted ’flexibility’ in facing emergency circumstances, whether momentary or ongoing. The proposed "flexibility" that respondent envisions has the police immune from the setting of limits as to time or location of questions, where inquiry is necessary to public safety. But what if no body is found for a week? Do we just keep the suspect in custody indefinitely? Second, it is obviously too vague to only restrict law enforcement’s conduct by the parameters of a perceived emergency. At bar, there was no information about any missing person or an armed individual on the loose; just a man with potentially either animal or human blood on him walking at night; at worst, not giving a straight answer. This Court in People v. Molnar, in applying the Mitchell standard, found that the police entering an apartment without a warrant based on a horrible odor, which turned out to be a decaying dead body, was justified undei the eniergency doctrine. Moinar, 98 N.Y.2d at 333-335. Noted this Court: Before entering the apartment, the police encountered no evidence of any crime, and the circumstances did not lend themselves to criminal processes. The police were not functioning in a criminal arena, but actin as_public servants in the name of protecting public health and safety. They 62 See again Robinson, 282 A.D.2d at 81 ("What the police did here, as a practical matter, was to place defendant under arrest in order to obtain sufficient evidence to arrest him"); Ryan , 12 N.Y.3d at 30-31 (again, condemning illegal 13 minute detention, with defendant uncuffed in the back of a patrol vehicle, prior to photo-array being compiled; Hicks standard not even met). proceeded with restraint and took the time to deliberate, using force only after exhausting other reasonable avenues. Id. at 334 (emphasis added). So the police in Molnar in entering the apartment were not "functioning in a criminal arena," rather they were acting as "public servants in the name of protecting public health and safety." 14. They did not hold Mr. Molnar in handcuffs for hours, interrogate, then transport him to the station, and ignore his invocation of counsel. As a dead body was being stored there, law enforcement in Molnar entered defendant’s residence under circumstances that health department officials could have. 14. at 335. But unlike the police in Molnar, the sheriff’s department at bar was utterly "functioning in the criminal arena." In fact, the Appellate Division concluded, though incorrectly, that the police here possessed reasonable suspicion that a misdemeanor or a felony had been coimnifted. Doll, supra, at 367-368. This is the polar opposite of police simply acting as civil servants concerned for public safety like a health department official. Respondent further cited below to Krom and Molina for the proposition that there was a "public safety" issue that continued until the body was found. As observed above, in both of those (non-Fourth Amendment) cases, there were specific missing persons that required law enforcement’s aggressive investigation. This was not the case at bar. How were the police continuing their investigation of the supposed immediate emergency by placing appellant in a holding cell at the police station - - after their questioning of him had stopped? See also Swoboda, 190 Misc.2d at 220-222 (no public safety exception to Miranda where intense questioning did not begin until 11 days after missing child was born 69 - - and over 4 hours after defendant was arrested). 63 Respondent’s cited cases in this regard before the Appellate Division, again, do not assist in their argument. Finally, the People’s argument that the motivation of law enforcement in detaining the appellant was not to gather evidence but to address a significant, emergent public safety issue, is also suspect. Even if the officer’s subjective beliefs were the focal point, the People are never able to properly address the fact that the police, well after the body was found, facilitated appellant’s friend asking him pointed questions as the police stood by to take notes. How exactly did that conduct by the police help in investigating an "emergency"? VI. Conclusion Based on the above, the statements and derivative evidence subsequently obtained should be suppressed, as "fruit of the poisonous tree." See generally Mapp v. Ohio, supra; Wong Sun V. US, supra. The People’s claim below that law enforcement had independent probable cause to justify their seizure of Mr. Doll and the physical evidence 66 P..T-S .-..-.i-... 4,.,+ . I Ut.11%..’..L LJJ LU.’... i’..A.AJILU. LW U1%.. U1DpULL. LLLUL LI1L J’.JLI’..’... ’.JU.7’..’I V ’.. VYLLLUL QJL&L LU UC UU1e sort of blood on Mr. Doll and in (and outside) his mother’s van. Naturally, as Mr. Doll had 63 See also People v. McBride, 14 N.Y.3d 440, 448-451 (2010) (Pigott, J., dissenting) (criticizing the majority’s application of the exigency exception to entering a residence without a warrant, where there was a delay of at least three days in the police obtaining a warrant). See e.g., Perez, 293 A.D.2d at 330 (where defendant consented to accompanying law enforcement to the station where he was not placed in handcuffs or a holding cell). Dunaway, 442 U.S. at 218 ("[w]here there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but the use of the evidence is more likely to compromise the integrity of the courts"). 70 blood on him, there would be blood in and outside the van he had admitted driving. But what connection to a particular crime existed at the time of the detainment? The People’s claim below of Kautz knowing the source of the blood on Mr. Doll at the time his face was swabbed 67 is simply inaccurate. Over and over we hear how the police felt compelled to keep asking Mr. Doll whether he hit a deer or not - - without of course the benefit of Miranda warnings. Even if a third prong DeBour level of suspicion arguably existed, only a temporary detainment would be permitted. And if there had actually been probable cause to arrest for murder, why not make the arrest on North Lake Road? Of course, law enforcement could not do so, as there was no known victim and crime to arrest for; only a man with what appeared to be some sort of blood on him, providing inconsistent statements. Seizing items stained with apparent blood found did not elevate these circumstances to probable cause. If the police cannot answer the questions of what specific crime to arrest for, and whether it is a human being or not that is purportedly hurt, probable cause cannot exist. 68 Nor is this 66 App. 373 (People’s Memorandum) 67 App. 373. Further, the People’s case law below in support of the alleged probable cause is easily distinguishable herein. See People v. Valerio, 274 A.D.2d 950, 951 (4th Dep’t 2000) (where "the suspects were not detained, but voluntarily accompanied the police to the station.., only several hundred feet away, where suspects were given the opportunity to make arrangements to complete their trip"); People v. White, 35 A.D.3d 1263, 1264 (4th Dep’t 2006) (where defendant’s furtive movements to avoid the police led to "a detention short of a forcible seizure to obtain explanatory information;" defendant only arrested after possessed property was identified as stolen); P eop le v. Khan Li 50 AD3d 284, 285 (1St Dep’t 2008) (where police were already aware of violent crime having occurred; level three DeBour frisk led to seizure of weapon). For sure, "[a]bsent the illegal arrest of [Mr. Doll]... and his transportation to another place, the derivative incriminating evidence would not have been revealed." P eople 136 A.D2d 882, 884 (4111 Dep’t 1988), citing jaw ay, sup r ; ijjcic, 71 sufficient evidence to suspend the state and federal constitutions. A reversal is in order. And all derivative evidence should be suppressed (including the statements at the station). 72 POINT III APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES (N.Y. CONST. ARTICLE I, §§ 6 AND 12; U.S. CONST., AMENDS. iv, VI AND )aV) WERE VIOLATED BY LAW ENFORCEMENT’S PRE-WARRANT SEARCH OF THE VEHICLE IN APPELLANT’S POSSESSION AND OTHER PHYSICAL EVIDENCE. FURTHER, THE SUBSEQUENT WARRANTS WERE NOT BASE]) UPON PROBABLE CAUSE. Evidence was seized before the search warrants were issued in this matter. As averred in POINTS I and II above, the pre-warrant seizures were illegal, as lacking probable cause or any applicable warrant requirement exception. Mr. Doll challenges the legality of all pre and post-warrant seizures on North Lake Road of the Ford Windstar mini-van and the cell phone inside the Windstar, as well as any observations made in conjunction with th es e items. B ot h of these items were seized on February 16, 2009, four days before a search warrant was obtained. Mr. Doll possessed a legitimate expectation of privacy, and therefore, standing, to challenge the searches and seizures at issue herein. 69 Indeed, appellant’s mother gave him 69 See generally People v. Rodrig, 69 N.Y.2d 159, 162-163 (1987); People V. Wcsley, 73 N.Y.2d 351, 356-359 (1989); People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108-109 (1996) (discussing subjective and objective prongs of privacy expectation); see also United States v. Jones, - U.S. — , 132 S. Ct. 945, 949-95 1, 2012 U.S. LEXIS 1063 (2012) (recognizing that THE Katz "reasonable expectation of privacy" principle only added to, and did not replace, the historically recognized common law trespassory principles under the Fourth Amendment). 73 permission to possess her Ford Windstar on the date in question, and the cell phone found therein belonged to Mr. Doll. These facts were not disputed below. 70 The Windstar, along with the cell phone inside of it, was towed to the Sheriff’s Department, according to law enforcement, in order to obtain evidence of a "possibly different crime or yet unrealized matter" i.e., the van "would certainly probably [sic] be of some evidentiary value later on in the investigation." 71 Investigator Kautz opined that there was something bigger going on, like another person being injured in an accident or assault. But no body had yet been found, and the source of what appeared to be blood on the van was still a mystery. 72 As set out below, no exception to the warrant rule existed. I. Pre-Warrant Seizures of Physical Evidence Were Illegal A. The Law Both our state and federal constitutions prohibit the warrantless and nonconsensual seizure of personal items and intrusion into areas where there is a reasonable expectation of privacy. See Payton v. New York, 445 U.S. 573, 576 (1980). A warrantless search is per __1_1_ -----.-- •1.. i SC LLJllUI1i1U1C. ’AJU1L AIt1 gIccllcL L1UL11Iy WI1JJ 1’...V1’..VYA1I, LtLti1uuiCLLWU LJy police acting without a warrant, than when reviewing a warrant issued by a judge. See B igclow, 66 N.Y.2d at 424. As the High Court has observed, "[the point of the Fourth Amendment... is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.., those inferences [must] be drawn by a neutral 70 See App. 80, 82-83, 166-67 (motion papers); App. 1690-1694, 1712, 1714-15 (5/20/09 minutes). 71 App. 316-17, 322-23 (Suppression Hearing). 72 App. 318-21. 74 and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 13- 14 (1948). Indeed, reasonableness is the "linchpin" for this analysis (see People v. Adams , 53 N.Y.2d 1, 11 [1981]), and the People must establish one of the narrow "carefully delineated" exceptions to the warrant rule. See Molnar, 98 N.Y.2d at 331. In short, an officer’s conduct must be justified at its inception and reasonably related in scope to the circumstances which originally justified the act. See People v. Wheeler, 2 N.Y.3d 370, 374 (2004), citing People v. William II, 98 N.Y.2d 93, 98 (2002). A warrantless search of a vehicle is an exception to the warrant rule, given the "mobility of the vehicle and the corresponding probability that any contraband contained therein will quickly disappear, and the diminished expectation of privacy attributed to individuals and their property traveling in an automobile." People v. Yancy, et al., 86 N.Y.2d 239, 245-246 (1995). But though a motorist’s privacy interest in her vehicle is less than in her home, the former is still important and deserving of constitutional protection. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1720 (2009). For example, the police may search a vehicle incident to arrest if it is reasonable to believe the vehicle contains evidence of the crime. Gant , 129 S.Ct. at 1724. Where the police possess "a reasonable belief that the vehicle was, in some way, associated with the crime and that a See also People v. Blasich, 73 N.Y.2d 673, 678 (1989) (discussing reasons for auto exception). See People v. Orlando, 56 N.Y.2d 441, 446 (1982) (noting "probable cause" must exist for a warrantless search of a vehicle), citing Carroll v. United States, 267 U.S. 132, 149 (1925); Pennsylvania v. Labron, 518 U.S- 938, 940 (1996). 75 search of the vehicle would ’produce the fruits, instrumentalities, contraband or evidence’ of the crime" (see People v. Clark, 45 N.Y.2d 432, 438 [19781 [citation omitted]), a warrantless search or seizure may be conducted. In sum, without probable cause, the warrantless seizure of a vehicle is unconstitutional. B. No Exception to the Warrant Rule at Bar As argued below and in Point II above, the police did not possess probable cause or sufficient knowledge to justify an emergency in order to seize the Windstar, nor the cell phone found inside the vehicle Nor did any other exception to the warrant requirement exist. The Appellate Division below (j. at 369) opined that, "[t]he blood on the interior and exterior of the vehicle, by itself, provided reasonable cause to believe that the van was the instrumentality of a crime. Furthermore, the fragile nature of the blood on the exterior of the van, which could be destroyed by mere rainfall or splashing water from ice and snow that melted, provided the exigent circumstances." To begin with, as the police immediately secured the scenes al both North Lake and Knapp Roads, there was no urgent need for a pre-warrant seizure of the vehicle and the cell phone. 76 Further, the police could have simply monitored the vehicles while a warrant was obtained by other law enforcement See App. 1689-96 (5/20109 minutes). 76 See also People v. Ready, 61 N.Y.2d 790, 794 (1984); People v. Robinson, 205 A.D.2d 836, 837-838 (3d Dep’t 1994) (condoning warrantless seizure where police had probable cause that vehicle was used in conjunction with homicide; "exingencies" of investigation and location of vehicle showed nexus with crime); People v. Buggenhagen, 57 AD2d 466, 468-469 (4th Dep’t 1977) (requiring that police possess probable cause, and that there be exigent circumstances, before a warrantless seizure may occur). fI1 personnel. Mr. Doll recognizes, however, that in Chambers v. Maroney (3 99 U.S. 42, 50- 51 [1970]), the court found the seizure of a vehicle pending law enforcement’s securing a warrant to be proper, as, among other things, "the opportunity to search is fleeting since a car is readily movable." Id. at 51. However, aside from the vehicles at bar having already been secured, the Chambers court also noted that "[n]either Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords." Chambers, 399 U.S. at 51-52 (still recognizing T’prefercnce for a magistrate’s judgment"). Moreover, while the police did observe apparent blood (though not necessarily from a human) inside the Windstar through its windows, it was already known that Mr. Doll had what appeared to be blood on him. It would only make sense that there would have been blood on items inside the vehicle he had driven. Thus, the plain view exception, which requires that the culpable nature of the object be immediately apparent (see Diaz, 81 1 I I’l T I r ._ fl T\T’A 01 00 On 1V1\ N.Y.2d ai 111-1 1L reopie V. nrowu, -7 V i’l. I Lu ou, oo-t,, uuijj, vva. 11kapp11.au1 a. well. Furthermore, as no formal arrest was made until February 17, 2009, the search See also Ready, 61 N.Y.2d at 794 (where no exigency existed that could not have been remedied "by the posting of a police guard [at the private garage in question] while application for a warrant was made"); People v. Vennor, 176 A.D.2d 1217, 1218 (4th Dep’t 1991) (finding that police should have obtained warrant before seizing vehicle where, among other things, "[t]here [was] no indication that police could not have surrounded the garage and waited for one of the officers to obtain a warrant"); People v. Sweezey, 215 A.D.2d 910, 914 (3d Dep’t 1995) (where complainant positively identified vehicle parked in a used car lot as being involved in crime, seizure of parked vehicle was proper in light of the exigency of the truck possibly being moved or sold). See also Warrantless Search Law Desk Book, West Thompson, 2009 Edition, Ch. 20, "Vehicle Exception," p. 496, fn 12 (discussing Chambers decision). 11 incident to arrest exception was inapplicable. See Chimel v California, 395 U.S. 752, 762- 764 (1969). Finally, there was certainly no consent to search. See Adams, 53 N.Y.2d at 8.79 II. The Warrant Application Regarding the Mother’s Van and Mr. Doll’s Cell Phone Lacked Probable Cause And Invalidated the Subsequent Warrants Pursuant to C.P.L. Article 690, a search warrant must provide a sufficient basis for the allegations of reasonable cause to believe that evidence of criminality will be found. The initial ten-page February 20, 2009 warrant application, incorporated by reference in the March 2009 applications, 8 ’ did not provide law enforcement with reasonable cause to believe that Mr. Doll committed the homicide. Therein, the officers’ approach to the scene was described, as well as the autopsy finding of blunt force as th e cause of death. There was blood on the cars registered to the deceased. The items in Mr. Doll’s possession as well as the blood on his clothing, were described as well. Yet none of the incriminating items were connected to the deceased .82 There was no probable cause +.,.,-S,-..-,,-.+ ) If fl,-11 i- ,,v, - ,-,i’r QI,g-im tI’,cif hi TQ flPçV L’.J LAJIJLP./../L LYJI. LF..JIJ. ULJ LlflJ iiJCiii.?LL4S_?, AL WY L,ALAJ ...-, WAJ. Though there was also a baseless trespass claim, there were no posted signs to prohibit ’ See also Gonzalez, 39 N.Y.2d at 128; People v. Jakubowski, 100 AD.2d 112, 116 (4 th Dep’t 1984). 80 See C.P.L. 690.10(4) (authorizing seizure of property that tends to demonstrate that an offense was committed); C.P.L. 690.35(3)(c) (requiring that application include basis for reasonable cause); C.P.L. 690.40(2) (requiring reasonable cause determination). App. 17-44,50-56. App. 1689-90. entry. 83 The illegality of the initial warrant, used as a basis for the subsequent warrants, infected those warrants issued in March 2009, which authorized seizure of Mr. Doll’s bank account, the Malibu vehicle, as well as the title certificates 84 As the pre and post warrant seizures were illegal, all evidence therein, as well as all derivative seized evidence were fruit of the poisonous tree, and required suppression. See again Mapp v. Ohio, supra. Again, a new trial should be ordered accordingly. App. 1692-96. App. 17-26, 50-56. CONCLUSION WHEREFORE, defendant-appellant, Scott F. Doll, respectfully requests that this Court reverse his conviction and dismiss the indictment; or in the alternative, grant a new trial; and grant such other relief as this Court deems just and proper. Respectfully submitted, SCOTT F. DOLL, APPELLANT By his Attorneys, cf Timothy P PAUL J. CAMBR]A, Jr., Esq. TIMOTHY P. MURPHY, Esq. LIPSITZ GREEN SCIME CAMBRIA, LLP Dated: Buffalo, New York November 19, 2012 78