stating, in dicta, that, because the defendant had been arraigned on, and was represented on, a forgery charge based on the use of a stolen credit card, police questioning about the uncharged assault and robbery during which the credit card had been stolen was improper, even though the charged forgery and uncharged assault and robbery occurred at different times and in different jurisdictions and were being investigated by different law enforcement agencies
How later courts described this case
- stating, in dicta, that, because the defendant had been arraigned on, and was represented on, a forgery charge based on the use of a stolen credit card, police questioning about the uncharged assault and robbery during which the credit card had been stolen was improper, even though the charged forgery and uncharged assault and robbery occurred at different times and in different jurisdictions and were being investigated by different law enforcement agencies
- holding, pre Jackson, that defendant who requested counsel at arraignment on charges of using stolen credit card could not be interrogated by police after Miranda warnings concerning related assault on credit-card owner, although statements elicited concerning unrelated homicide charge were admissible
- concluding that uncharged *571assault was related to charged forgery, even though the crimes occurred in different locations, at different times, and involved different types of conduct
- stating that "there can be no interrogation" related to the charged crime without first notifying counsel and affording counsel a reasonable opportunity to be present
Written by the judges who cited it.
The opinion
LINDE, J.,
concurring.
I concur in almost all of the Court’s discussion of the two separate constitutional premises involved. It makes clear that respect for a suspect’s right to counsel is independent of the elements of custody and compulsion or inducement that trigger protection of the right against self-incrimination, and that it forecloses questioning or otherwise obtaining evidence from a suspect by consent in a matter in which he is represented by counsel unless he consults counsel before consenting. But I have misgivings about a test that makes the admissibility of evidence depend on whether the inquiries to *99 which he consented without consultation with counsel concerned the same or a different criminal episode.
What makes the distinction appear plausible in this case is that a defendant jailed in one city on the charge on which he had legal counsel confessed to an apparently unrelated crime in another city, in response to questions by officers from that city. But the distinction is likely to prove difficult to administer when any of these factors is missing, when officers from the same or a closely associated jurisdiction question a suspect about activities related in time or place, by the identity of the victim, or by the repetition of similar unlawful acts. This is illustrated by the cases under such a test reviewed by the New York Court of Appeals when it abandoned the test in People v. Rogers, 48 NY2d 167 , 422 NYS2d 18 , 397 NE2d 709 (1979).
Future cases will require scrutiny of the notion that a defendant has an attorney on one charge yet has none on another potential charge about which he is questioned. Again, that notion may appear plausible when one is accustomed to assuming that defendants are represented by counsel appointed by a court for a specific purpose. It is far less plausible when a retained attorney appears to represent an accused and look after his interests in the investigatory stages of the criminal process. Yet we must guard against letting such a difference enter into a rule protecting the right to counsel. The appointment of counsel is designed to protect exactly the same rights for which the constitution guarantees the right to retain counsel. In a rule governing the questioning of suspects, therefore, the test whether the suspect is represented by an attorney must be the same whether the attorney is appointed or retained; it is whether the officers are on notice that the suspect’s attorney reasonably would regard protection of the suspect’s rights in the matter under investigation to fall within his professional responsibility. The obvious precaution is to ask before proceeding.
Lent, J., joins in this concurring opinion.