Opposition Brief — Tyrone Wortham, Petitioner v. New York

No. 21-7703

IN THE

Supreme Court of the United States

TYRONE WORTHAM,

Petitioner,

- versus THE STATE OF NEW YORK,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF NEW YORK

RESPONDENT’S BRIEF IN OPPOSITION

ALVIN L. BRAGG, JR.

District Attorney

New York County

STEVEN C. WU*

Chief, Appeals Division

ALAN GADLIN

Deputy Chief

ALEXANDER MICHAELS

Assistant District Attorney

New York County District Attorney’s Office

One Hogan Place

New York, New York 10013

(212) 335-9326

danyappeals@dany.nyc.gov

*Counsel of Record

QUESTION PRESENTED

Whether the police were required to give petitioner Miranda warnings before

asking a routine, administrative question about his address during the execution of a

search warrant.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............................................................................................iii

INTRODUCTION................................................................................................................ 1

JURISDICTION .................................................................................................................... 2

STATEMENT OF THE CASE .......................................................................................... 2

A. Factual Background ............................................................................................... 2

B. Procedural History ................................................................................................. 4

C. The Court of Appeals’ Reversal and Remittal for Further Proceedings ......... 5

REASONS FOR DENYING THE PETITION.............................................................. 6

A. This Court Lacks Jurisdiction Because the Decision Below Is Not a Final

Judgment Under 28 U.S.C. § 1257(a). ...................................................................... 6

B. This Case Does Not Implicate Any Division of Authority on the Scope of

the Well-Established Pedigree Exception to the Miranda Rule. .......................... 12

CONCLUSION ................................................................................................................... 18

-ii-

TABLE OF AUTHORITIES

FEDERAL CASES

Atl. Richfield Co. v. Christian, 140 S. Ct. 1335 (2020)............................................................ 7

Batson v. Kentucky, 476 U.S. 79 (1986) .............................................................................. 9-10

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).................................................... 2, 9-11

Florida v. Thomas, 532 U.S. 774 (2001) .................................................................................. 7

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ......................................4-6, 8, 10-11, 17

Jefferson v. City of Tarrant, 522 U.S. 75 (1997) ............................................................... 7, 9-10

Johnson v. California, 541 U.S. 428 (2004) ..................................................................... 7, 9-10

Johnson v. California, 545 U.S. 162 (2005) ............................................................................ 10

Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) ............................. 12

Miranda v. Arizona, 384 U.S. 436 (1966) ............................................ 1, 4-6, 9, 11-12, 14-17

O’Dell v. Espinoza, 456 U.S. 430 (1982) ................................................................................ 9

Pennsylvania v. Muniz, 496 U.S. 582 (1990) ........................................................ 12-14, 16-17

United States v. Arellano-Banuelos, 912 F.3d 862 (5th Cir. 2019) ........................................ 12

United States v. Cowan, 674 F.3d 947 (8th Cir. 2012),

cert. denied, 568 U.S. 911 (2012) ...................................................................................... 16

United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004),

cert. denied, 541 U.S. 1091 (2004) ............................................................................... 16-17

United States v. Pacheco-Lopez, 531 F.3d 420 (6th Cir. 2008) .............................................. 15

United States v. Peterson, 506 F.Supp.2d 21 (D.D.C. 2007) ................................................ 15

United States v. Sanchez, 817 F.3d 38 (1st Cir. 2016) .......................................................... 13

United States v. Zapien, 861 F.3d 971 (9th Cir. 2017) ......................................................... 12

-iii-

STATE CASES

Commonwealth v. Sheriff, 425 Mass. 186 (Mass. 1997) ......................................................... 13

Griffin v. State, 311 Ga. 579 (Ga. 2021) ............................................................................... 13

Hughes v. State, 346 Md. 80 (Md. 1997), cert. denied, 522 U.S. 989 (1997) ........................ 13

State v. Chrisicos, 148 N.H. 546 (N.H. 2002)....................................................................... 13

FEDERAL STATUTES

28 U.S.C. § 1257(a) .................................................................................................. 1-2, 6-7, 9

-iv-

INTRODUCTION

This petition for a writ of certiorari seeks interlocutory review of a decision by

the New York Court of Appeals that remitted this case for a hearing and, depending on

the outcome of that hearing, a new trial. The interlocutory posture of this case deprives

this Court of jurisdiction under 28 U.S.C. § 1257(a) and would weigh heavily against a

grant of discretionary review even if jurisdiction were available. For this reason alone,

the petition should be denied.

Even setting aside jurisdiction, certiorari would not be warranted here. Petitioner

asks this Court to resolve a purported split in authority concerning the scope of the

pedigree exception to the Miranda rule, which allows police to collect basic biographical

information for administrative purposes without first providing Miranda warnings. The

facts of this case, however, do not implicate any such split because the pedigree question

at issue in this case was a straightforward request for an arrestee’s address that was made

solely for booking purposes (specifically, in order to enter information into the New

York City Police Department’s online booking system) and in accordance with routine

procedure. Whatever disagreement courts may have about ambiguous cases—where

police questioning verges on interrogation to obtain incriminating testimony—there is

no entrenched split on whether the pedigree exception covers quintessential booking

questions like the one here. Because this case would not present the Court with an

opportunity to address any supposed uncertainties about the scope of the pedigree

exception in more marginal cases, the petition should be denied.

JURISDICTION

This Court lacks jurisdiction to review the order of the New York Court of

Appeals, which remitted the case for further proceedings, including an evidentiary

hearing and possibly a new trial. As explained below, the Court of Appeals’ order is

thus not a final judgment reviewable under 28 U.S.C. § 1257(a). Nor does the order fall

within any of the exceptions set forth in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975).

STATEMENT OF THE CASE

A. Factual Background

On May 26, 2011, police officers executed a search warrant at 435 Alabama

Avenue, Apartment 2A, in Brooklyn, New York. (Respondent’s Appendix [Resp. App.]

13a-15a.) Upon entering the apartment, the officers found petitioner, who was wearing

a pair of shorts and no shirt, alone with two young children. (Resp. App. 16a; see also

Trial Transcript [Tr.] 19.)1 The officers secured the apartment and handcuffed

petitioner as a safety precaution. (Petitioner’s Appendix [Pet. App.] 69a-70a; Resp. App.

41a.) In accordance with routine procedure, the officers also asked petitioner for his

pedigree information—his name, date of birth, address, height, and weight. (Pet. App.

70a-71a; Resp. App. 17a-19a.) The officers requested this information so that they

could enter it into the New York City Police Department’s online booking system—a

1 Citations to the trial transcript are to the minutes of the trial proceedings on March

5, 7, 8, 11, 12, 14, 15, and 18, 2013.

-2-

process they were required to follow for every person encountered during a search

whether or not that person was ultimately arrested. (Pet. App. 70a; Resp. App. 17a19a.) When asked for his address, petitioner said that he lived “here,” explaining that

his “baby’s mother” let him stay on a mattress in the apartment’s living room. (Pet.

App. 73a; Resp. App. 18a, 34a-35a.) Before the officers escorted petitioner out of the

apartment, they allowed him to put on a t-shirt, pants, and sneakers. The clothes fit

him. (Tr. 28.)

The officers then searched the apartment. In a closet in one of the bedrooms,

they found men’s and women’s clothing, a loaded TEC-9 assault rifle, and a loaded .40caliber Kahr handgun. (Pet. App. 64a-65a; see also Tr. 34-41.) In a drawer in that same

bedroom, the officers found a bag of crack cocaine, an electronic scale, and materials

used for packaging cocaine. (Pet. App. 67a-68a.) In another drawer in that bedroom,

they found .40-caliber ammunition alongside cash and a benefit-identification card

bearing petitioner’s name and photograph. (Pet. App. 68a-69a.) And on a table in that

bedroom, the officers found mail addressed to both petitioner and the children’s

mother, Shawana Harrison, at the address of the apartment. (Pet. App. 66a-67a.)

Subsequent DNA testing revealed a mixture of DNA on the handgun. (Tr. 274,

343-44.) The New York City Office of Chief Medical Examiner (OCME) determined,

using its Forensic Statistical Tool software program, that there was a strong likelihood

that petitioner was one of the contributors to that mixture. (Tr. 280.)

-3-

B. Procedural History

Petitioner was indicted on charges of weapon possession, drug possession, and

endangering the welfare of a child. While in jail awaiting trial, petitioner had several

phone conversations with Harrison. During those conversations, Harrison referred to

one of the beds in the apartment as “our bed,” petitioner referred to various of his

belongings that were in “the house” at the time of the search, and they discussed a

bottle of champagne that had been sitting in “the refrigerator” for a long time. (People’s

Trial Exhibit 32.)

Before his trial in New York County Supreme Court, petitioner moved in limine

for an order precluding the People, under Frye v. United States, 293 F. 1013 (D.C. Cir.

1923), from presenting expert testimony about OCME’s Forensic Statistical Tool to

establish the likelihood that petitioner was a contributor to the DNA mixture found

on the handgun. The court denied the motion without a hearing.

Petitioner also moved, under Miranda v. Arizona, 384 U.S. 436 (1966), to suppress

his statement to police that he lived in the apartment. After a suppression hearing, the

court denied the motion. (See Resp. App. 1a-76a.) The court found that standard

NYPD procedure called for the collection of pedigree information from every adult

present during the execution of a search warrant. Petitioner’s statement that he lived in

the apartment thus was made in response to questioning that fell within the pedigree

exception to the Miranda rule.

-4-

After a jury trial, petitioner was convicted as charged. He was subsequently

sentenced, as a second violent felony offender, to an aggregate prison term of nine

years followed by five years of post-release supervision.

The Appellate Division, First Department affirmed. (Pet. App. 37a-39a.) It held

that the hearing court had properly denied petitioner’s motion to suppress his

statement about his address because that statement was a response to “a routine

administrative question that was not a disguised attempt at investigatory interrogation

and was not designed to elicit an incriminating response.” (Pet. App. 37a-38a [internal

quotation marks and citations omitted].) The Appellate Division then held that

petitioner was not entitled to a Frye hearing concerning the reliability of the Forensic

Statistical Tool. (Pet. App. 38a.)

C. The Court of Appeals’ Reversal and Remittal for Further Proceedings

On November 23, 2021, the Court of Appeals reversed the Appellate Division’s

order and remitted for further proceedings. (Pet. App. 12a.)

First, the Court held that petitioner’s suppression motion was properly denied

because his statement about his address fell within the pedigree exception to the

Miranda rule. (Pet. App. 7a-9a.) The Court explained that the request for petitioner’s

address was “reasonably related to the police’s administrative concerns, and, under the

circumstances, was not a disguised attempt at investigatory interrogation.” (Pet. App.

8a.)

-5-

Second, however, the Court ruled that the lower court had “abused its discretion

when it denied [petitioner’s] motion for a Frye hearing” concerning OCME’s Forensic

Statistical Tool. (Pet. App. 9a.) That error was not harmless and therefore required

reversal. (Pet. App. 9a-11a.) The Court thus directed that the lower court conduct a

Frye hearing. (Pet. App. 11a.) If the Frye court were to reject OCME’s use of the

Forensic Statistical Tool, then petitioner would be “entitled to a new trial.” (Pet. App.

11a.) If the Frye court were instead to uphold the use of the Forensic Statistical Tool,

then petitioner would receive an opportunity to “challenge that determination on direct

appeal.” (Pet. App. 11a.)

Since the Court of Appeals’ ruling, the parties have appeared in New York

County Supreme Court, but petitioner’s Frye hearing has not yet been scheduled.

REASONS FOR DENYING THE PETITION

The petition should be denied for two independent reasons. First, under 28

U.S.C. § 1257(a), this Court has no jurisdiction to review the non-final order of the

New York Court of Appeals, which remitted the case for further proceedings. Second,

setting aside the jurisdictional bar to this Court’s review, the facts of this case make it

a poor vehicle for resolving any questions about the pedigree exception to Miranda.

A. This Court Lacks Jurisdiction Because the Decision Below Is Not a

Final Judgment Under 28 U.S.C. § 1257(a).

1. The petition asks this Court to review an interlocutory decision of the New

York Court of Appeals that did not fully resolve this case, but instead remitted for

-6-

further proceedings—including a hearing, potentially a new trial, and further appellate

proceedings. This Court lacks jurisdiction to review state-court decisions that, like the

Court of Appeals’ decision in this case, do not finally dispose of a case.

This Court’s power to review state-court decisions is limited to the review of

“[f]inal judgments or decrees rendered by the highest court of a State in which a

decision could be had.” 28 U.S.C. § 1257(a). As this Court has explained, 28 U.S.C.

§ 1257(a) establishes “a firm final judgment rule” under which this Court can review a

state-court judgment only if it is “final” in two ways: (a) “it must be subject to no

further review or correction in any other state tribunal”; and (b) “it must also be final

as an effective determination of the litigation and not of merely interlocutory or

intermediate steps therein.” Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997); see also Atl.

Richfield Co. v. Christian, 140 S. Ct. 1335, 1349 (2020). Compliance with this finality rule

is “an essential prerequisite to [this Court’s] deciding the merits” of an appeal from a

state’s highest court. Johnson v. California, 541 U.S. 428, 431 (2004). And, in keeping with

that rule, this Court has repeatedly held that it lacks jurisdiction over an appeal from a

decision in which a state’s highest court conclusively disposed of a federal issue in the

case but nonetheless remanded for further proceedings that could affect the case’s

ultimate outcome. See, e.g., Johnson, 541 U.S. at 430-31; Jefferson, 522 U.S. at 81.

The New York Court of Appeals’ decision in this case is not “final.” In the

context of criminal prosecutions, “finality generally is defined by a judgment of

conviction and the imposition of a sentence.” Florida v. Thomas, 532 U.S. 774, 777 (2001)

-7-

(internal quotation marks omitted). Here, rather than affirming petitioner’s conviction

and sentence, the Court of Appeals reversed and remitted for further proceedings,

including a hearing and possibly a new trial. (Pet. App. 12a.) Specifically, under the

Court of Appeals’ ruling, the trial court must now hold a Frye hearing to determine the

admissibility of evidence of OCME’s Forensic Statistical Tool analysis. (Pet. App. 11a.)

Depending on the outcome of the Frye hearing, there will either be a new trial or further

appellate proceedings to challenge the trial court’s Frye determination. The Court of

Appeals’ decision thus does not finally determine this litigation. To the contrary, it

expressly orders further proceedings that could yield a wide range of possible

outcomes.

Petitioner tries to evade the finality problem here by repeatedly misstating this

case’s procedural posture. He claims that the Court of Appeals “entered judgment” in

this case (Pet. 1) when that Court in fact reversed and remitted for further proceedings.

He also incorrectly states that “[t]here are no other proceedings in state or federal trial

or appellate courts . . . directly related to this case” (Pet. iii), but, as discussed above,

the Court of Appeals directed the trial court to hold a Frye hearing, and the parties have

been communicating with the trial court about scheduling. 2

2 In those communications, petitioner has asked the trial court to adjourn the Frye

hearing until this Court issues a decision concerning the present petition. The People have

consented to those requests.

-8-

2. Although petitioner acknowledges elsewhere that this case has been remitted

for further proceedings, he maintains that this Court should nonetheless grant certiorari

now because this case falls within an exception to the finality requirement. (Pet. 7, 1516.) This Court has recognized exceptions to the finality requirement of 28 U.S.C.

§ 1257(a) only in a “‘limited set of situations.’” Jefferson, 522 U.S. at 82 (quoting O’Dell

v. Espinoza, 456 U.S. 430, 430 [1982]). In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(1975), this Court outlined four exceptions—commonly called the four Cox

exceptions—to the finality requirement. Petitioner appears to invoke the third Cox

exception, which applies when a “‘federal claim has been finally decided, with further

proceedings on the merits in the state courts to come, but in which later review of the

federal issue cannot be had, whatever the ultimate outcome of the case.’” (Pet. 15

[quoting Cox Broadcasting, 420 U.S. at 481].) According to petitioner, that exception

applies here because “there is no sign that review of [the federal Miranda issue] would

be available later” in the case. (Pet. 15.)

Petitioner misconstrues the third Cox exception. Although “later review of the

federal issue” may not be practically available in state court due to the Court of Appeals’

ruling on the Miranda claim, the relevant question is whether later review by this Court

would be available. For instance, in Johnson v. California, the California Supreme Court

disposed of the petitioner’s federal claim under Batson v. Kentucky, 476 U.S. 79 (1986),

but remanded for the California Court of Appeal to consider other claims raised by the

petitioner. Johnson, 541 U.S. at 429. This Court initially granted certiorari to review the

-9-

Batson claim but then dismissed the appeal, finding the third Cox exception inapplicable.

Johnson, 541 U.S. at 429-30. The Court explained that later review of the federal issue

could in fact be had because, “[i]n the event that the California Court of Appeal on

remand affirms the judgment of conviction, petitioner could once more seek review of

his Batson claim in the Supreme Court of California—albeit unsuccessfully—and then

seek certiorari on that claim from this Court.” Id. at 430-31.3

This Court reached the same conclusion in Jefferson v. City of Tarrant, dismissing

the appeal while explaining that the third Cox exception did not apply because the

petitioner would “be free to seek our review [of the federal issue in the case] once the

state-court litigation comes to an end.” Jefferson, 522 U.S. at 82-83. Although the

Alabama Supreme Court’s ruling on the federal issue in Jefferson constituted “law of the

case” for any further proceedings in state court, the availability of subsequent review

in this Court precluded application of the third Cox exception: “Even if the Alabama

Supreme Court adheres to its interlocutory ruling as ‘law of the case,’ that

determination will in no way limit our ability to review the issue on final judgment.” Id.

at 83.

The analysis in Johnson and Jefferson applies squarely here. If the People prevail at

the Frye hearing, the state appellate courts uphold that determination, and the Court of

3 The case’s subsequent history demonstrates that this Court’s analysis was completely

accurate. After the California state courts disposed of the remaining issues in the case, this

Court granted certiorari again and decided the Batson issue on the merits. See Johnson v. California,

545 U.S. 162, 167-68 (2005).

-10-

Appeals ultimately affirms petitioner’s conviction or denies leave to appeal, then this

Court could still review petitioner’s Miranda claim. If the People do not prevail at the

Frye hearing, and again introduce petitioner’s statement about his residence at a new

trial, then petitioner will again be able to raise his Miranda claim during any appeal from

a conviction, including in this Court. Either way, the federal issue for which petitioner

seeks this Court’s review now would be available to be reviewed later as well. Petitioner

therefore cannot satisfy the requirement that “later review of the federal issue cannot

be had, whatever the ultimate outcome of the case.” Cox Broadcasting, 420 U.S. at 481.

Because this case does not fall within an exception to the finality requirement, this

Court lacks jurisdiction to review it.

3. Even if the interlocutory posture of the New York Court of Appeals’ decision

did not technically deprive this Court of jurisdiction, it should nonetheless weigh heavily

against a discretionary grant of certiorari at this stage of the case. Because further

proceedings remain pending—up to and including the possibility of a new trial—it is

premature to assess what effect, if any, the federal Miranda issue may have on the case’s

ultimate outcome. For instance, if petitioner were to prevail at the Frye hearing, proceed

to a new trial, and obtain an acquittal on all charges, there would be no need to decide

whether and how the pedigree exception to the Miranda rule should apply in this case.

For that reason, this Court should decline to issue an interlocutory ruling on the federal

Miranda issue, even if there were jurisdiction to issue such a ruling, because of the

“fundamental and long-standing principle of judicial restraint [that] requires that courts

-11-

avoid reaching constitutional questions in advance of the necessity of deciding them.”

Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).

B. This Case Does Not Implicate Any Division of Authority on the Scope

of the Well-Established Pedigree Exception to the Miranda Rule.

Certiorari is also not warranted because the facts of this case simply do not

implicate the circuit split that petitioner claims to have identified. To the contrary, the

question at issue here falls squarely within the core of the Miranda rule’s pedigree

exception. Even if courts have varied on their approach in more ambiguous cases,

petitioner has identified no serious disagreement that booking-related questions like the

request for petitioner’s address here fall outside of Miranda’s coverage.

1. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), a plurality of this Court held that

Miranda warnings were not required when police asked “routine booking question[s]”

to “secure the ‘biographical data necessary to complete booking or pretrial services.’”

Id. at 601 (plurality opinion). The Court specifically identified questions regarding a

suspect’s “address” (among other pedigree information) as falling within this exception

to Miranda. Id. Since Muniz, lower courts—both federal and state—have had little

difficulty recognizing that, regardless of the precise contours of the pedigree exception,

it applies to requests for an arrestee’s address to facilitate booking.4

4 See, e.g., United States v. Arellano-Banuelos, 912 F.3d 862, 868 (5th Cir. 2019) (“data such

as a suspect’s name, address, height, weight, eye color, date of birth, and current age” [internal

quotation marks omitted]); United States v. Zapien, 861 F.3d 971, 975 (9th Cir. 2017) (“the

routine gathering of background biographical information, such as identity, age, and address”

(Continued…)

-12-

The facts of this case fall squarely within this quintessential example of pedigree

questioning. As the Court of Appeals found, based on undisputed testimony during the

suppression hearing, the officer made a request for petitioner’s address as part of the

NYPD’s standard booking procedure, which police apply to “all adults found at a

location where a search warrant is executed,” regardless of whether contraband is found

or the person is arrested. (Pet. App. 7a-8a; Resp. App. 17a-19a.) 5 Further, as in Muniz,

the Court of Appeals found that the officer asked for petitioner’s residence for booking

purposes alone, not as part of the investigation. (Pet. App. 8a.) See Muniz, 496 U.S. at

601 (“The state court found that the first seven questions were ‘requested for recordkeeping purposes only.’”). Indeed, the facts here make the administrative purpose of

the questioning even clearer than in Muniz. In that case, the pedigree questions were

[internal quotation marks omitted]); United States v. Sanchez, 817 F.3d 38, 44-45 (1st Cir. 2016)

(“routine booking questions seeking background info, such as the suspect’s name, address,

and related matters” [internal quotation marks omitted]); Griffin v. State, 311 Ga. 579, 587 (Ga.

2021) (“basic biographical data, such as the suspect’s name, age, address, . . . and other

information required to complete an arrest form” [internal quotation marks omitted]); State v.

Chrisicos, 148 N.H. 546, 548-49 (N.H. 2002) (“the defendant’s name, address, height, weight,

eye color, date of birth and current age”); Hughes v. State, 346 Md. 80, 95 (Md. 1997) (“the

suspect’s name, address, . . . and similar such pedigree information”), cert. denied, 522 U.S. 989

(1997); Commonwealth v. Sheriff, 425 Mass. 186, 197 (Mass. 1997) (“routine background

questions regarding a suspect’s name, address, and related matters”).

Amicus curiae NACDL thus misstates the record in claiming that the officers’

questioning “had nothing to do with the booking process.” (NACDL Amicus Br. 8.) NACDL

similarly ignores the record when claiming that “there simply is no justification for conducting

such an interrogation at any location other than the stationhouse.” (id. at 9.) Again, testimony

at the suppression hearing established that routine NYPD procedure required the officers to

collect petitioner’s pedigree information on the spot and record it in NYPD’s online booking

system. (Resp. App. 18a-19a.)

5

-13-

part of a longer line of non-pedigree questioning that was challenged as a custodial

interrogation. See 496 U.S. at 585-87. No such extended interrogation occurred here

immediately after officers collected petitioner’s basic biographical information. (Resp.

App. 17a-18a, 34a-35a.) The Court of Appeals’ decision thus faithfully applied Muniz

to find that the request for petitioner’s address here fell within the core of the pedigree

exception to Miranda.

2. Petitioner and his amici claim to have identified “an entrenched split” on

whether the applicability of the pedigree exception should be decided by a “subjective”

or “objective” inquiry. (Pet. 7-8; see also NACDL Amicus Br. 3; Br. of Amici Curiae James

Connell and Meghan Skelton [“Connell and Skelton”] 5.) But any difference of

approach by the courts is immaterial to this case because both objective and subjective

factors would support the application of the pedigree exception here. The objective

circumstances show that (a) the questioning officer was merely following routine

NYPD procedures for collecting booking information, (b) there was no extended

interrogation following the booking questions, and (c) this information was collected

“immediately after [police officers’] entry to the apartment, before the apartment had

been searched and before any contraband had been found.” (Pet. App. 8a.) On the

police officers’ subjective intent, the testimony at the suppression hearing established

that the officers questioned petitioner for the sole purpose of obtaining pedigree

information to enter into the online booking system (Resp. App. 17a-19a), and the

Court of Appeals found no factual basis to conclude that the officers were instead

-14-

engaged in a surreptitious “investigatory interrogation.” (Pet. App. 8a.) This case thus

provides no basis for resolving the split identified by petitioner because any resolution

would have no impact on the outcome here.

The cases cited by petitioner do not suggest otherwise. To the contrary,

petitioner’s own cases (Pet. 13-14) acknowledge that questions about residence for

booking purposes fall squarely within the pedigree exception. See United States v. PachecoLopez, 531 F.3d 420, 423 (6th Cir. 2008); United States v. Peterson, 506 F.Supp.2d 21, 24

(D.D.C. 2007). The additional questioning that these courts found more troubling

under Miranda went well beyond such routine collection of biographical information.

For example, in Pacheco-Lopez, the Sixth Circuit acknowledged that Miranda warnings

usually are not required for a request for an arrestee’s “address”—but the questioning

in that case went further by interrogating the arrestee about how and when he had

arrived at the house in question. 531 F.3d at 424. Similarly, in Peterson, the district court

expressly held that the pedigree exception applied to questions about defendant’s

“ownership of the apartment,” but did not apply to further questioning about

defendant’s specific bedroom when an officer had testified that the further questioning

was intended to determine who was “more responsible” for contraband. 506 F.Supp.2d

at 25.

Thus, in both Pacheco-Lopez and Peterson, the requests for information strayed well

beyond standard pedigree information and were not limited to the basic biographical

information needed for booking purposes. For such questioning at the margins of what

-15-

Muniz would permit, lower courts may very well employ diverse approaches to

determine whether and under what circumstances Miranda warnings would be required.

But that dispute is not implicated here because the question at issue was a standard

pedigree question for booking purposes and had no ulterior investigatory purpose.

3. Petitioner’s other attempts to identify errors in the Court of Appeals’ analysis

are unavailing.

First, petitioner contends that the Court of Appeals took an unprecedented step

in its Muniz analysis, adopting “[y]et [a]nother” approach to the pedigree exception by

considering whether “‘the pedigree question was a disguised attempt at investigatory

interrogation.’” (Pet. 12 [quoting Pet. App. 7a] [emphasis in Petition].) But in Muniz

itself, the plurality opinion specified that the exception did not apply to pedigree

questions “that are designed to elicit incriminatory admissions.” Muniz, 496 U.S. at 602

n.14 (internal quotation marks omitted).

Second, petitioner questions the applicability of the pedigree exception in this

case on the ground that his address was requested before he was taken to the police

precinct. (Pet. 12-13; see also Br. of Amicus Curiae The National Association of Criminal

Defense Lawyers [“NACDL”] 8.) But nothing in Muniz indicates that routine booking

questioning must take place at the stationhouse. And courts have recognized that

booking questions asked at the location of a search or crime can fall outside the scope

of Miranda because they request only pedigree information. See, e.g., United States v.

Cowan, 674 F.3d 947, 958 (8th Cir. 2012), cert. denied, 568 U.S. 911 (2012); United States v.

-16-

Gaston, 357 F.3d 77, 82 (D.C. Cir. 2004), cert. denied, 541 U.S. 1091 (2004). Petitioner has

identified no case categorically rejecting the application of Muniz’s pedigree exception

outside of the stationhouse.

3. Finally, the importance of the Miranda issue is substantially diminished here

because there is a compelling argument that any erroneous admission of petitioner’s

statement about his residence would be harmless—an argument that could be further

strengthened depending on the outcome of the upcoming Frye hearing. Here, even

ignoring petitioner’s response to the officer’s question about his address, other evidence

overwhelmingly established his residence at the apartment. He was the only adult in the

apartment at the time of the search, along with two young children. He was wearing a

pair of shorts and no shirt—as though he was relaxing at home. His benefits card was

found in a bedroom drawer. Mail addressed to him at the apartment was found in that

same bedroom. And, if the People prevail at the Frye hearing, there will also be

admissible evidence that petitioner’s DNA was found on one of the guns recovered

during the search. Thus, even without petitioner’s answer that he lived at the apartment,

there would be compelling evidence of his residence there, and the DNA evidence (if

deemed admissible at the upcoming Frye hearing) would link him even more forcefully

to the contraband. This Court should decline to grant certiorari to review a question

that will likely not make any difference to the outcome of this proceeding.

-17-

CONCLUSION

The petition for a writ of certiorari should be denied.

ALVIN L. BRAGG, JR.

District Attorney

New York County

BY:

July 29, 2022

STEVEN C. WU*

Chief, Appeals Division

ALAN GADLIN

Deputy Chief

ALEXANDER MICHAELS

Assistant District Attorney

* Counsel of Record