Petition — Miller v. New York

THE

PRO_SE_ ACTION

RECEIVED

MAY 29 1981

OFFICE OF THE CLERK

SUPREME COURT, US.

80-6758

NO. 8l-

IN THE

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM 1981

~_—<—<e—8 ee eee eee EH HE KOO ee ee eee

BRIAN MILLER,

PETITIONER,

- against -

PEOPLE OF THE STATE OF NEW YORK,

RESPONDENT.

BRIAN MILLER

#79B875 D-5/42

135 STATE STREET

AUBURN, NEW YORK

13021

INDEX

INGOX cocccccccccccccccccscccccsccsecccsesesees i

Case Citations ..cccccccccccccccveccsccverssesees 4i - iii

Affidavit In Forma PauperisS ...cccceecccccesees iv

Proof Of Service ..ncccccccscccccccesvesesecese Vv

PFOCECKINGS cccccccccccccccccccccsccsscsseseces 1

Preliminary Statement ..crscccscccesecccevesece 2- 3

Jurisdiction .cccccccccccccccccccccscccsecsecces§ | 3

Constitutional Provisions ...cesesesecesesesess 3

Questions Presented ...cccccccccceseseesseseses 4

Statement Of FactS ..ccccccccccscesecssceeseces ae

POINT I cccccccccccccccccccccccccecseeseccesess 10 - 15

POINT II cccccccccccccccccccccccccvecsceseseses 16 - 20

POINT Itt eeeoeeeeveneeneeeeeeeeeeeeeeeeeeeeeeeeeee 21 - 23

CITATIONS

CASES:

tory, Calitarnsa., $76 Us8s 22 C2965) cccoseseedcec

Aguilar v. Texas, 378 U.S. 108 (1964) ...ceeeeeees

Terry Vv. Ohio, 392 U.S. 1 (1968) ee ep eeeeenerieeeeeee

Henry v. Mississippi, 361 U.S. 98 (1959) ......66-

Payton v. New York, 100 S.Ct. 1371 (1980) ........

Michigan Vv. Tyler, 436 U.S. 499 (1978) eee eeaeeeeeee

Wallace v. King, F.2d (4th Cir. 1980) .....

United States v. Arboleda, F.2d (2nd Cir.

1980) (Arrest Warrant) ee eneeneneneneneneeneeneneeeeeeeeeeeee

Vale Vv. Louisiana, 399 U.S. 30 (1970) *eeveeereeeenee

Warden v. Hayden, 387 U.S. 294 (1967) w.ccseeecees

United States v. Santana, 427 U.S. 38 (1976) .....

Johnson v. United States, 333 U.S. 10 (1948) .....

McDonald v. United States, 335 U.S. 451 (1948) ...

Miranda v. Arizona, 384 U.S. 436 (1966) ...ceeeees

People v. Huntley, 15 N.¥.2d 72 (1965) ....eeeeees

People v. Cunningham, 49 N.Y¥.2d 203 (1980) .......

People v. Yarter, 41 N.Y.24 830 (1977) w..ceseeees

Lego Vv. Twomey, 404 U.S. 477 (1972) eseeeoeveeeeeeeeee

Jackson Vv. Denno, 378 U.S. 369 (1964) eeeeeoeeeeeee

Brown v. Mississippi, 297 U.S. 278 (1936) ....eee.

People v. Anderson, 42 N.Y¥.2d 35 (1977) ...cescees

People v. Samuels, 49 N.Y.2d 218 (1980) .....eee0-

People v. Rogers, 48 N.Y.2d 167 (1979) .w..ceseeees

United States Vv. Wade, 388 U.S. 218 (1967) eeeeeeve

Kirby Vv. Tllinois, 406 U.S. 682 (1972) e*eneeeeeeenee

People v. Conyers, 49 N.Y¥.2d 174 (1980) ....eeeees

People v. Garofolo, 46 N.Y¥.2d 592 (1979) ....eeees

People v. Rutigiano, 262 N.Y. 103 (1933) .......4.

mart ere

PAGES

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Wong Song v. United Stated, 371 U.S. 471 (1963) ......

People v. Graham, 76 A.D.2d 228 (19) ) weseeeeeeescees

STATUTES:

BaF. Pomel Law T1SO.18 cccccccescoccccccccccveccecvese

N.Y. Penal Law 8125.25(1) and (2) cccccccccccccccccces

MoV. Paneh Law BLSOs IG cccccccccccccececccccgececveses

N.Y. Penal Law 8125.15 wccccccccccccccesccccscccccuces

Title 28 U.S.C. B1257(3) wcccccccccccsccvcsccscccccces

N.Y. Criminal Procedure Law §140.10(1)(b) .....seeeeee

N.Y. Criminal Procedure Law 8140.15(4) ...sccecesceees

N.Y. Criminal Procedure Law §140.20(1) ....ceeeeeseeees

N.Y. Criminal Procedure Law 8120.80(4) ...ceecsseeeees

N.Y. Criminal Procedure Law 860.45 ...cceseascessccees

Title 28 U.B.C. GIPAS coccccccccccccccceccccccscccvers

CONSTITUTIONAL AMENDMENTS:

Fourth Amendment United States Constitution ..........

Sixth Amendment United States Constitution .....ceee00%

Fourrveenth Amendment United States Constitution ......

- iii -

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STATE OF NEW YORK)

S.S.: AFFIDAVIT FOR LEAVE TO

COUNTY OF CAYUGA ) PROCEED IN FORMA PAUPERIS

BRIAN MILLER, the petitioner, first being duly

Sworn, deposes and says:

1. That he is the petitioner in the annexed

petition for a Writ of Certiorari, pursuant to the appliable

provision of this Court's Rules of procedure.

2. That with the permission of this Court, the

petitioner would pray to proceed IN FORMA PAUPERIS within the

meaning of TITLE 28 U.S.C. 1915.

3. That he, petitioner, is a poor person, within

the meaning of TITLE 28 U.S.C. 1915, without the necessary

funds from family or friends, to pre-pay the cost of the

filing of this petition for a Writ of Certiorari, and that as

& poor person, the petitioner seeks the possession of this

Court to be allowed to proceed IN FORMA PAUPERIS.

WHEREFORE, the petitioner prays, that as a

poor person he be allowed to proceed before this Court IN FORMA

PAUPERIS without first being required to pre-pay the cost

thereof.

Respectfully submitted,

Vo eats —

Brian Miller

#79B875 D-5/42

135 State Street

Auburn, New York

13021

Sworn to before me

iF Valores

this /4—4 day of April,1981.

s/ oP" are] Ses a ee

ee

Notary Public

JOHN D. COWEN NO. 1::'5

NOTARY PLR IC STATE OF NEA \ ORK

RE! DONS Its CAYUGA COUNTY , = -iv-

MY COMMS ON EAMES MARCH SDE.

NO. 81-

IN THE

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM 1981

BRIAN MILLER,

PETITIONER,

- against -

THE PEOPLE OF THE STATE OF NEW YORK

RESPONDENT.

PROCEEDINGS

The proceeding sought to be reviewed by this petition

for Writ of Certiorari, commenced in the Supreme Court of Erie

County, State of New York, by the filing of an indictment

The petitioner is the only party to this proceeding.

There was no opinion rendered in the Appellate

process of this criminal action. The only written opinion for

review before this Court was rendered in the trial Court, and is

annexed as exhibit (a). The affirmance order of the Appellate

Division Fourth Judicial Department of the State of New York,

stated that "...judgment so appealed from be and the same hereby

4s unanimously affirmed (see People v. Graham, 76 A.D.2a 228)."

The Court of Appeals of the State of New York gave no written

opinion. Therefore, the basis for this petition is upon the

written Memorandum orders of the trial court in this matter.

-le.

PRELIMINARY STATEMENT

This petition is based upon an appeal from a Judgment

of conviction of the Supreme Court, Erie County, State of

New York, before the Honorable Leon N. Armer, Justice, entered

on the 23rd day of May,1979, upon a plea of guilty.

The petitioner, Brian Miller, upon the indictment of

the Erie County Grang Jury was charged with one count of ARSON

in the SECOND DEGREE (P.L. 8150.15) and four counts of MURDER

in the SECOND DEGREE (P.L. 8125.25 (1) and (2)).*

Proceeding a HUNTLEY hearing to suppress written

statements, on April 23,1979, the petitioner withdrew his

previously entered plea of not guilty to the indictment and

entered a plea of guilty to the reduced charges of ARSON in the

THIRD DEGREE (P.L. $150.10) under count one, and MANSLAUGHTER

in the SECOND DEGREE (P.L. 8125.15) under the third count of

the indictment. The Trial court characterized the plea

exceptance as an "ALFORD PLEA."

Timely notice of appeal was filed from the State

judgment of conviction.

The appeal was heard upon typewritten briefs filed in

the Appellate Division Fourth Judicial Department of the Supreme

Court, State of New York, upon said judgment of conviction

(*) P.L. is referencve to New York State Penal Law.

=

entered on April 23,1979, being unanimously affirmed on the

16th day of January,1981, upon the constrains of People v. Graham,

76 A.D.2d 228, __N.Y.S.2a __ (1980).

Leave to appeal to the Court of Appeals was made on

the llth day of February,1981, and said leave was denied on the

23rd day of March,1981, by Associate Judge Matthew J. Jasen of

the Court of Appeals, State of New York. On March 27,1981, the

petitioner received through assigned counsel of the Legal Aid

Bureau of Buffalo, that; said leave to appeal was denied.

JURISDICTION

The judgment of affirmance entered on the 16th day

of January,1981, in the Appellate Division Fourth Judicial

Department of the State of New York, timely application for

certificate for leave to appeal to the Court of Appeals having

been denied on the 23rd day of March,1981, and received by the

petitioner from assigned counsel on the 27th day of March,1981,

the petition for Writ of Certiorari being filed within the

sixty (60) day period of Rule 22 of the Rules of this Court,

this Court has jurisdiction pursuant to 81257(3) of Title 28 of

the United States Code to hear this petition.

CONSTITUTIONAL PROVISIONS

This case involves the Fourth Amendment's right to

be free from illegal search and seizure; the Sixth Amendment

right to counsel; and the Fourteenth Amendment's right tec Due

Process of Law, all within the meaning of the United States

Constitution.

QUESTIONS PRESENTED

POINT I .....++++++ THE ARREST OF THE PETITIONER WAS NOT BASED

UPON PROBABLE CAUSE, ACCORDINGLY, ALL

STATEMENTS EXTRACTED FROM THE PETITIONER

CONSTITUTED FRUITS OF AN ILLEGAL ARREST AND

SHOULD HAVE BEEN SUPPRESSED;

POINT II ...e+e++++ THE PETITIONER'S CONSTITUTIONAL RIGHT TO

COUNSEL DURING THE INTERROGATIONS INVOLVING

THE TWO STATEMENTS WAS VIOLATED, ACCORDINGLY,

BOTH STATEMENTS SHOULD HAVE BEEN SUPPRESSED;

POINT III ......+++ THAT THE TAKING OF THE SECOND STATEMENT WAS

ILLEGAL, IN THAT THERE WAS NOT A SUFFICIENT

BREAK BETWEEN THE SECOND STATEMENT TO

DISSIPATE THE TAINT OF THE FIRST STATEMENT,

ACCORDINGLY, THE SECOND STATEMENT SHOULD

HAVE BEEN SUPPRESSED.

STATEMENT OF FACTS

BRIAN MILLER, the petitioner, was arrested on December

23rd, 1977, and held in custody in connection with a fire which

occurred at 277 Fillmore Street in the City of Buffalo, State of

New York. During that fire, which occurred on November 12,1977,

two people died.

JEROME McINTEE, a Buffalo Police Officer assigned to

the District Attorney's office as an investigator, arrested the

petitioner at his home on December 23,1977 (H.M. pp. 77-79).*

When Investigator McIntee went to arrest the petition-

er, proportedly, armed with information consisting of two (2)

signed statements and a third verbal statement that the

petitioner was at the scene of the fire (H.M. pp. 53-54), the

Investigator McIntee did not have an arrest warrant (H.M. p.110),

or for that matter neither did he have a search warrant. The

Investigator knocked at the door of 223 Paderewski Drive,

Buffalo, New York, the house of the petitioner, and asked

whether Brian Miller, the petitioner, was there. The reply was

"no". The Investigator then entered the house of the petitioner,

without a search, or arrest «warrant, and without the consent of

any of the occupants therein. He then proceeded to search

through the house (H.M. p. 133) and arrested the petitioner in

the living room (H.M. pp. 107, 133-34). The hearing minutes

reveal that the rretext for entering the house was a complaint

of loud noise (H.M. pp. 111, 132-43).

(*) H.M. reference to pages of suppression hearing transcripts.

ee

According to Investigator McIntee, the petitioner had

been a suspect since the day of the fire, some six weeks earlier

to his arrest (H.M. p. 108). Upon arresting the petitioner and

walking him out the back door of the house, Investigator McIntee

advised him of his rights (H.M. p. 79). As far as Investigator

McIntee could recall, the petitioner was not asked if he was

willing to talk to him, or Fire Investigator Francis Haynes

until they reached Police headquarters (H.M. pp. 81, 90).

Investigator McIntee and Fire Investigator Haynes

while driving the petitioner to the Police headquarters, told

petitioner that they had statements from two people to whom

petitioner is alleged to have admitted setting the fire, and

that whether petitioner wanted to talk about it, to which the

petitioner respenced no (H.M. pp. 38-39).

At Police headquarters, petitioner was taken to an

interview room. Therein Investigator Joseph Marciniak read him

the Miranda rights twice. InVestigator McIntee then had

petitioner read the two statements that had been mentioned in

the car in route to the policé headquarters (H.M. pp. 81, 83).

According to Investigator Marciniak, the Miranda warnings were

given after the two statements had been shown to the petitioner

(H.M. p. 125).

Through continuous interrogation of the petitioner,

the record of the suppression hearing reflects that the

petitioner had given statements. The first statement was taxen

by Investigator McIntee and Fire Investigator Haynes. The second

statement was taken by Investigator Detective Stanley W. Suszek

and Sergeant Deve.

Investigator McIntee after hearing the first verbal

*i} statement of the petitioner, asked that he repect it, so that

it could be tape recorded. At the end of the tape recording,

Investigator McIntee gave the petitioner a “note” stating that

he the petitioner had cooperated with the authorities in the

investigation, end verbally assured the petitioner that he would

try to help petitioner in the future, if, he could (H.M. pp. 84-

85).

According to the arrest record, the time of

petitioner's arrest was 6 P.M. (H.M. p 97). Petitioner was

officiaily booked approximately an hour after he had heen picked

up, and after questioning by Investigator McIntee (H.M. p. 49).

Police officer Stanley Suazek of the Buffalo Police

Department was one of the officers who was present when the

petitioner was arrested at his home (H.M. p. 3). Officer Suszek,

sometime around 7:30 P.M., after the first statement was taken

from petitioner by Investigator McIntee, took the petitioner

from the cell block to the Homicide Bureau, read the petitioner

the Miranda rights and proceeded to interrogate him (H.M. p. 6).

Sometime: thereafter, a second statement was taken and reduced

to writing. Petitioner was asked to sign the statement, but

refused to do so without an attorney (H.M. p. 13).

Wayne Miller, petitioner's brother testified that he

was at 223 Paderewski Drive, the home of the petitioner, on

December 23, 1977. That about 6 P.M., there was a knock at the

door, that he asked who was there, and the reply was “Police”.

That the speaker indicated that they were there on a complaint

i

of ioud music, and that when the police entered the house, they

first grabbed him, then Michael Brzozowski, asking whether they

were Brian Miller, the petitioner (H.M. pp. 132-133). Mr. Miller,

brother of the petitioner, further stated that one of the

officers went through each room and eventually came out with

petitioner (H.M. pp. 133-135).

Brian Millier, the petitioner, testified in his own

behalf, that after the police knocked on the door, he was on

his way towards another room to put on another record. That

Investigator McIntee came up to him and asked if he was Brain

Miller. When he replied that he was, Investigator McIntee told

him that he had to go with him (H.M. p. 142). That he was

advised of his rights outside of his house (H.M. pp. 143-144)

and possibly during the trip to police headquarters (H.M. p.145).

That he refused to talk to the Investigator and another officer

in the car, and that he refused to sign the waiver card when he

was questioned, and that twice he told Investigator McIntee he

wanted an attorney (H.M. pp. 146-147).

The petitioner was not given the opportunity to call

an attorney or his family (H.M. pp. 150-151).

The trial court in a Memorandum order, dated April

17,1979, held that the People had not sustained their burden of

proof witn respect to petitioner's first statement to Investigator

McIntee and suppressed that statement accordingly. The Court in

so doing, indicated that there was no satisfactory showing that

petitioner knowingly and intelligently waived his right to

counsel and that to some measure the waiver was the result of

Investigator McIntee's menace toward and promises made to

|

petitioner (M.D. I. P- 2)* As to the second statement, the Court

ruled that there was a sifficient break in the chain of events

between the first statement to attenuate any taint which may

have occurred at the time of the first statement, deeming the

second statement to have been given knowingly and voluntarily

(M.D. I p. 3)-

Based upon a Memorandum of law submitted by counsel

for petitioner, a further memorandum order was issued, dated

April 23,1979, which the Court upon reconsideration of its

previous memorandum dated April 17,1979, found that *,..there

was such definite pronounced break between the interrpgations

which were the subject of the hearing held that the defendant

may be said to have returned, in effect, to the status of one

who is not under the influence of questioning.” (M.D. II. Pp. 1).

The Trial Court, also, found that upon the record,

that while ao arrest warrant had been issued, the officers did

have the right to make the arrest pursuant to Criminal Procedure

Law $140.10(1) (b); §140.15(4). That the officers had the right

to make inquiry of the petitioner concerning the matter

pursuant to Criminal Procedure Law §140.20(4), and that immediate

arraignment could not be had pursuant to Criminal Procedure Law

$140.20(1). The Trial Court also found that the petitioner was

not subject to illegal detention, and that he did not desire to

speak to an attorney (M,D. II. pp- 1-2).

(*) M.D. I. represents Memorandum Decision I dated April 17,1979.

POINT J

THE ARREST OF THE PETITIONER WAS NOT

BASED UPON PROBABLE CAUSE, ACCORDINGLY,

ALL STATEMENTS EXTRACTED FROM THE

PETITIONER CONSTITUTED FRUITS OF AW

ILLEGAL ARREST AND SHOULD HAVE BEEN

SUPPRESSED

The FOURTH AMENDMENT to the United States

Constitution reads:

"The right of the People to be secure

in their persons...ayainst unreasonable

searches and seizures, shall not be

violated, and no warrants shall issue,

but upon probable cause supported by

Oath or affirmation, and particularly

describing the place to be searched,

and the persons or things to be seized.”

The petitioner contends that his arrest, without a

warrant, in his residence, was illegal and without the necessary

prerequisite of probable cause to justify a warrantless arrest,

as a matter of Federal constitutional law.

The petitioner's arresting officer Investigator

McIntee, asserted during the suppression hearing that the basis

for the arrest was upon the three statements of three individuals

which contained hearsay admissions by the petitioner, that he

had started the fire which took the lives of two individuals.

With nothing more then the fact that the petitioner

was indeed at the party the night of the fire, the Police had

no evidence which served to link the petitioner to the crime.

These elements are in and of themselves insufficient to

establish probable cause to arrest.

-10<-

The standard of reasonableness as an ingredient of

probable cause govern both Federal and State activities (see:

Ker v. California, 374 U.S. 23 (1963); Aguilar v. Texas, 378

U.S. 108 (1964)).

Because of the exclusionary sanction, the FOURTH

AMENDMENT is more commonly thought of as a limitation on the

power of the Police to search for and seize evidence,

instrumentalities, and fruits of crime. However, an illegal

arrest or unreasonable seizure of the person is itself a

violation of the Fourth and Fourteenth .mendments (see: Terry V-

Ohio, 392 U.S. 1 (1968); Henry v. United States, 361 U.S. 98

(1959)).

Initially, it must be pointed out that the existence

of probable cause is the sine qua non of any arrest, with or

without a warrant. It is the entry into the home for the purpose

of arrest that requires, in addition to probable cause absent

exigent circumstances, a warrant or consert (cf., Payton Vv.

New York, U.S. ,100 S.Ct. 1371 (1980).

In this case, Investigator McIntee, entered the

petitioner's house under the pretext that there was a loud party

going on. Investigator McIntee, when asked about the ruse of a

loud party, stated the following:

"9. Isn't it also a fact, Sir, that

at the time you approached the

house you notified the occupants

that you'd received a complaint

of a loud party in there ?

A. I don't recall.

Q. Could it be ?

-il-

A. Might have been, I don't know.

Q. Was this a ruse you used to get

inside the house ?

A. Might have been, I don't know.

I don't recall it, I told you

counsel,

Q. As a matter of fact, nobody came

and opened the door for you, did

they ?

A. No, the door was open.

Q. You just went in, right ?

A. No. Somebody answered the door.

We asked if Brian Miller was there,

and he said, “No.” And then we went in.

Q. No one said come on in, did they ?

A. I don't believe so, no, sir.” (H.M. p.11l).

An ov rall reading of the suppression hearing

transcripts of this case, clearly, reflect that the totality of

the circumstances did not warrant entry into petitioner's home,

si-ce (1) the police did not have probable cause; and, (2) there

were no exigent circumstances to justify such entry for purposes

of arrest of the petitioner.

This Court in fourth Amendment cases has seemingly

approached its review of a given case by a review of the

totality of the circumstances, and that that review has taken

place in the context of some definitive thoughts on what may

constitute a compelling need for official action (e.g., danger

to human life or property, the escape of the suspect, and the

destruction of evidence).

A clear question of constitutional law is reflected

in this case: DO THE FACTS REVEAL A COMPELLING NEED FOR OFFICIAL

ACTION AND NO TIME YO SECURE A WARRANT FOR ARREST ? (chi OcGee

- 12-

Michigan v. Tyler, 436 U.S. 499, 509 (1978)).

The arresting officer in this case, when asked whether

he or any other officer made an application for a warrant of

arrest of the petitioner, he stated "No" (H.M. p. 110), and when

asked why, he stated, "It wasn't necessary” (H.M. p.110). It is

important to note that the officers did not state their true

purpose prior to the entry into petitioner's home. Instead, they

relied upon a subterfuge - a_ complaint of loud music.

Giving the benefit of the doubt, arguendo, that the

police in this case had probable cause to arrest the petitioner,

there was no reason why the police could not have obtained an

arrest warrant. The arrest in question took place during early

evening hours of a weekday when it would not have been difficult

to locate a Judge to obtain one. There were no “exigent

circumstances” which would have justified a warrantless arrest.

First, the crime was then some six weeks old; second, there

existed no physical evidence that may or could have been

destroyed; and, third, the police were no pursuing an armed

suspect. And furthermore, the police had no information that

there was a likelihood that the petitioner would have fleed, if

not swiftly apprehended,

Under New York Law, Criminal Procedure Law $140.15

subd. (4) applies to warrantless arrest situations, and

substantially juxtaposes the exigent circumstances requirement

setforth in C.P.L.8120.80 subd.(4) for arrest with a warrant.

The Trial Court held that “While the officer had no

arrest warrant, they did have the right then and there to make

the arrest (CPL 8140.10 subd. (1) (b), 8140.15 subd. (4)), they

then being in possession of evidence of admissions claimed

made by defendant to certain citizens not police or peace

officers" (M.D. I. p. 2). The basic crux of New York's C.P.L.

$140.10 subd.(1)(b), that a police officer "...has reasonable

cause to believe that such person has committed such crime,

whether in his presence or otherwise", does not, in this case,

give rise to the justification for the arrest upon a warrantless

entry under the totality of the circumstances.

This Court has held:

"(F)or Fourth Amendment purposes,

an arrest warrant founded on probable

cause implicitly carries with it

limited authority to enter a dwelling

in which the suspect lives when there

is reason to believe the suspect is

within.” (Payton v. New York, supra, at

1388).

But knowing when an arrest warrant can legally be

obtained and when, with a warrant, officers may enter a suspect's

home does not answer the questions of when in a given

investigation a warrant should be sought and whether from that

point, or perhaps during the period a warrant is being sought,

the exigencies of the situation mandate that the police proceed

without obtaining the warrant (cf., Wallace v. King, F.2d.

(4th Cir. 1980) (arrest and search warrant); United Stater v.

Arboleda, F.2d (2nd Cir. 1980) (arrest worrant)).

The record clearly shows that this was a “planned

arrest", or one made in the course of an on-going investigation,

and the only evidence sought of a non-tangible nature was that

of which came forth from the petitioner's mouth: a confession!

- &4 «

In this case, the officers were not responding to an

emergency. They were not in hot pursuit of a fleeing felon.

There were no tangible goods seized, nor in existence, which

could be deemed in the process of destruction, or about to be

removed from the jurisdiction (see: e.g., Vale v. Louisiana,

399 U.S. 30 (1970); Warden v. Hayden, 387 U.S. 294 (1967);

United States v. Santana, 427 U.S. 33 (1976)).

In conclusion, this case reflects nothing more than

the officers attempt to circumvent the warrant requirement of

the Criminal Procedure Law of New York State, in having the

determination of probable cause judged by a detached magistrate,

rather than based upon the actions and opinion of a police

officer who is engaged “...in the often competitive enterprise

of ferreting out crime" (see: Johnson v. United States, 333 U.S.

10, 14 (1948)). Since the exigencies of the situation did not

make the course of action taken in this case imperative (cf.,

McDonald v. United States, 335 U.S. 451, 456 (1948)). Exigent

circumstances as an exception cannot be showing, nor be the

basis for the illegal entry into the petitioner's home to

effectuate an arrest.

In light of these factors, and since Payton controls

the circumstances of this case, all statements obtained from

the petitioner after his illegal arrest should have been

suppressed,

POINT II

THE PETITIONER'S CONSTITUTIONAL

RIGHT TO COUNSEL DURING THE

INTERROGATIONS INVOLVING THE TWO

STATEMENTS WAS VIOLATED, ACCORDINGLY,

BOTH STATEMENTS SHOULD HAVE BEEN

SUPPRESSED

Under the circumstances of this case, petitioner's

inculpatory statements should have been suppressed because the

People of the State of New York did not establish beyond a

reasonable doubt that they were voluntarily given (see: Miranda

v. Arizona, 384 U.S. 436 (1966); People v. Huntley, 15 N.Y.2d 72,

78 (1965)). Purthermore, the petitioner's right to counsel

attached during the first interrogation, by virtue of the Trial

Court's ruling that it should be suppressed as being involuntary.

Petitioner was arrested and taken into custody

on December 23,1977, in connection with a fire that claimed the

lives of two individuals. From the point of the arrest of

petitioner at his home, to the point of arrival at the Police

Headquarters, the record in this case reveals testimony of such

a contradictory nature, that it borders on perjury.

First, as the record reads, the order of witnesses

for the People do not constitute the order of events that took

place in the arrest of the petitioner.

Firemen Francis J. Haynes of the Buffalo New York

Fire Department, Engine 10 Company and Investigator Jerome

McIntee of the Buffalo District Attorney's Office were the

individuals that took the petitioner into custody (H.M. pp. 36-

37, 78-79).

Detective Stanley W. Suszek of the Buffalo,

New York Police Department and Firemen Joseph Marciniak of the

Buffalo, New York Fire Department were are the home of the

petitioner when the arrest took place (H.M. pp. 4, 121-123).

HAYNES and McINTEF were involved in the first

interrogation of the petitioner, which was suppressed by the

Trial Court (H.M. pp. 34-76; 77-113).

SUSZEK and Sergeant DOVE were involved in the

second interrogation of the petitioner, which the Trial Court

allowed into evidence against the petitioner (H.M. pp. 2-34)*

During both interrogations of the petitioner,

he indicated that he desired an attorney (H.M. pp. 146-147).

Clearly, such requests precluded any questioning

of the petitioner until an attorney had been assigned to him

(see: People v. Cunningham, 49 N.Y.2d 203 (1980); Miranda v.

Arizona, supra.).

The rule in New York is that, in the case of

custodial interrogation, the People must establish beyond a

reasonable doubt that MIRANDA rights were given and waived

voluntarily before the introduction of a defendant's confession

is permitted (see: Miranda v. Arizona, supra; People v. Yarter,

(*) Sergeant Dove did not testify for the People, nor was he

called as a witness for the petitioner.

2 19 @

41 N.Y.2d 830 (1977); People v. Valerius, 31 N.Y¥.2d 51 (1972);

People v. Huntley, supra.).

Where the interrogation is custodial and it is

clearly established that MIRANDA rights have been recited to

the defendant, the analysis then focuses on whether the

defendant voluntarily, knowingly and intelligently waived his

privilege against self-incrimination and his right to counsel

(see: Miranda v. Arizona, supra at 479).

The due process clause dictates that involuntary

confessions, i.e., confessions which are the product of a will

which was overborne or not the product of rational intellect,

are inadmissible in criminal trials (see: e.g., Lego v. Twomey,

404 U.S. 477 (1972; Jackson v. Denno, 378 U.S. 369 (1964);

Brown v. Mississippi, 297 U.S. 278 (1936)).

New York State Criminal Procedure Law 860.45,

codifies this rule by providing that a confession involuntarily

made is inadmissible in a criminal case and defines an

involuntary statement as that which is obtained in violation of

constitutional mandates or by improper conduct or undue pressure

which “undermine the ability to make a choice whether or not to

také a statement.” (see: N.Y. Crim. Proc. Law 860.45; cf., People

v. Anderson, 42 N.Y.2d 35 (1977)).

The point at which petitioner was arrested

without a warrant and taken into custody for questioning is the

point at which his constitutional right to counsel attached.

It should be held that he could not have waived this right

except in the presence of an attorney, especially since the

first interrogation and taking of a statement was so overborne,

and which the Trial Court held “Nor can it be said on this

- 18 «

record on the question of the voluntariness of defendant's acts,

that the evidence obtained is free from doubt that it was not in

some measure the product of the menace toward and promises made

to him implicit in the conduct and statement of Detective McIntee.

(see: D.M. I. p. 2). Thus, petitioner's inculpatory statements

were caken in violation of his constitutional right to counsel

and should have been suppressed (see: N.Y. Const. Art. 1 86;

People v. Cunningham, supra; People v. Samuels, 49 N.Y.2d 218

(1980); People v. Rogers, 48 N.¥.2d 167 (1979)).

It is well settled law that the Federal Sixth

Amendment guarantee of assistance of counsel attaches at all

critical stages of a criminal prosecution (cf., United States v.

Wade, 388 U.S. 218 (1967); Kirby v. Illinois, 406 U.S. 682 (1972))

Because this State's Court of Appeals “has

consistently exercised the highest degree of vigilance in

safeguarding the .ight of the accused to have the assistance of

counsel at every stage of the legal proceeding against him,” a

critical stage occurs much earlier in New York than in Federal

jurisdiction (see: People v. Cunningham, supra at 207; People v

Samuels, supra at 221).

An individual who is being interrogated while

held in Police custody has a right to the assistance of counrel

even though he is unrepresented and there has been no formal

commencement of a criminal action. As the Court of Appeals noted

in People v. Cunningham, supra, “when an unrepresented individual

who is being held in police custody invokes his right to

assistance of counsel...he is expressing his view that he is not

@ 19 -

competent to deal with the authories without legal advise."

(see: People v. Cunningham, supra at 209).

While the preeminence of Miranda v. Arizona, supra,

may have obviated the need for the courts in New York to speci-

fically state that the right to counsel attache during a

custodical interrogation, it has always existed. As in People v.

Conyers, 49 N.¥.2d 174 (1980), the Court observed that recitation

of Miranda warning to someone in custody "merely repeats and

reiterates the promises already made by the Constitution." (see:

People v. Conyers, supra at 180). In fact, even the failure of thei

police to recite the warnings “does not serve to prevent a

suspect from relying on that promise.” (Id., at 180). The only

question remaining is whether the right to counsel under the

specific facts of this case indesibly attaches.

It does not make sense to say that an unrepresented

defendant in custody who has not requested an attorney can

effectively waive his rights without the advise of counsel and

at the same time say that a suspect who is represented even on

an unrelated matter can waive his rights only in the presences of

counsel (cf., People v. Cunningham, supra at 209; see, @.g.,

People v. Garofolo, 46 N.Y¥.2d 592, 600 (1979); People v.

Rutigliano, 261 N.Y. 103, 107 (1933)).

Upon the record of this case, the petitioner

asserts that he was entitled as a matter of constitutional law

to the assistance of counsel, and that no waiver of that right

ensued from the first interrogation to the second interrogation.

POINT III

THAT THE TAKING OF THE SECOND

STATEMENT WAS ILLEGAL, IN THAT

THERE WAS NOT A SUFFICIENT BREAK

BETWEEN THE SECOND STATEMENT TO

DISSIPATE THE TAINT OF THE FIRST

STATEMENT, ACCORDINGLY, THE

SECOND STATEMENT SHOULD HAVE BEEN

SUPPRESSED

One hour after petitioner's arrest, he was booked by

McIntee and taken to a cell block within the Police Headquaters,

McIntee then left police headquarters after filing his reports

and leaving a copy for the Homicide Squad (H.M. pp. 103, 104).

Investigator McIntee, while not being sure, conceded that he

probably handed a copy of his report to either Sergeant Dove

or Detective Suszck, the two homicide detectives who had

accompanied him during the petitioner's arrest (H.M. pp. 104,

105). Investigator McIntee believed that his report given to

Dove or Suszek did indicate he had taken a statement from

the petitioner (H.M. p. 104).

The record reflects that at approximately 7:30

p.m., Dove and Suszek brought the petitioner down from the cell

block to their office where Suszek read petitioner his Miranda

rights (H.M. p. 6).

The Trial Court suppressed the first statement

taken from the petitioner by McIntee and Haynes, but as to the

second statement given to Dove and Suszek, the Trial Court held:

"The statement given to them bears

no taint from the prior conduct of

McIntee since it was a detached,

free and rational choice of defendant,

under circumstances so removed from

McIntee's apparent improper acts,

as to be an independant act of

defendant.” (M.D. I. P. 3).

- 21 -

‘

|

In a further finding upon a motion submitted by

petitioner's trial counsel for reconsideration of the ruling

as to the second statement, the Trial Court held:

"This Court thereupon finds in the

event that such finding is not deemed

to have been heretofore made, that

there was such a definite pronounced

break between the interrogations

which were the subject of the hearing

held that the defendant may be said

to have returned, in effect, to the

status of one who is not under the

influence of questioning..." (Citation

omitted) (M.D. II.p. 1).

At the outset, the petitioner was neither

released from custody, nor had he been taken before a magistrate

for arraignment, or removed from the building and influence of

the police officers that participated in his arrest and first

statement.

The Trial Court's holding "...that there was such

a definite pronounced break between the interrogations..." is

totally unsupported by the record in this case. First, the taint

of the first interrogation cannot be said to have dissipated to

such a degree to constitute a sufficient purging of the primary

taint (see: e.g., Wong Song v. United States, 371 U.S. 471, 487-

488 (1963)).

One need not argue by analogy to the search and

seizure language of the “fruit of the poisonous tree” doctrine tc

apply it to a Miranda violation. Miranda is based on the Fifth

Amendment's privilege against self-incrimation, and a body of

law has developed regarding the fruits of such violations which

makes it even more emphatic that the doctrine is applicable.

At best the period between the first interrogatio:

and taking of the statement is but fifteen to thirty minutes.

@ 22 -

This being the case, upon the facts of this case, then the

second statement taken from the petitioner by Suszek and Dove

cannot be deemed to have been sufficiently removed by time, or

intervening events, so as to attenuate the taint of McIntee's

conduct in obtaining the first statement. To be purged of the

primary taint of McIntee's interrogation in the first statement,

the elements of attenuation constituting sufficient breaking

of the taint upon the second must be something more than a

period of 15 to 30 minutes (see, e.g., Killough v. United States,

315 F.2d 241 (1962)).

Accordingly, the second statement should have

been suppressed.

——

CONCLUSION

THEREFORE, the petitioner prays that this

Honorable Court grant his petition for a writ of certiorari

upon the issues sotforth heretofore.

Respectfully submitted,

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Brain Miller

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