Petition for Writ of Certiorari — New York v. Ferro

84*1007/)

No.

Court, U.S.

FILED

DEC 20 Nes

IN THE

Supreme Court of the United Saw.

October Term, 1984

STATE OF NEW YORK,

Petitioner,

agamst

ALFIO FERRO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Joun J. Santucci

District Attorney

Queens County

125-01 Queens Boulevard

Kew Gardens, New York 11415

(212) 520-5567

Wru14M ScHRacer

Assistant District Attorney

Of Counsel

Questions Presented

1. Whether the court below properly held that the mere

placement of the furs in front of the respondent’s cell was,

in and of itself, the functional equivalent of questioning so

as to constitute an interrogation under Miranda v. Arizona,

384 U.S. 436 (1966).

2. Whether the court below properly held that Michigan

v. Mosley, 423 U.S. 96 (1975) created a per se rule that a

fresh set of Miranda warnings must be given as a prerequi-

site to the resumption of questioning.

TABLE OF CONTENTS

Questions Presented 2.0.0.0...

i lak fs os dade 7

Jurisdowdon ..........5......0...... ee ee MO RR IN IT

Constitutional Provisions Involved _....... ;

Fifth Amendment ...... 1s SRS ls Sel Sa se Co

TD

TR apie Leer

ea sclisidinnsesvassiane eeaUils

oi esis gouichvannd ee eae aie

The Appeal to the Appellate Division

The Appeal to the New York Court of Appeals _.

Reasons for Granting the Writ... male

ae carecseeud AOE

Point One—The decision rests solely upon the Con-

stitution of the United States...

Point Two—The court below improperly found that

the mere placement of the furs in front of the

respondent’s cell was, in and of itself, the fune-

tional equivalent of questioning so as to consti-

tute an interrogation under Miranda v. Arizona,

384 U.S. 436 (1966).

IV

PAGE

Point Three—The court below improperly held that

Michigan v. Mosley, 423 U.S. 96 (1975) created a

per se rule that a fresh set of Miranda warnings

must be given as a prerequisite to the resump-

ee ee OI ee ee ee

imino Saree PME, BSTPTTIE ORR U TEE 13

Appendices :

Opinion of the Appellate Division of the Supreme

Court of the State of New York, Second Judicial

I ssc fitict ae Sigamierrcene pon donimnyeteiecinsss la

Opinion of the Court of Appeals, State of New York. lia

7

TABLE OF AUTHORITIES

PAGE

Cases:

Edwards v. Arizona, 451 U.S. 477 (1981) 3 9

Jankovich v. Toll Road Commission, 379 U.S. 487

eee sin itesipnercnanuce bce mr reer = TRIS 8

Michigan v. Mosley, 423 U.S. 96 (1975) 1::Ay 4, & 24,39

Ohio v. Gallagher, 425 U.S. 257 (1976) eae 8

Rhode Island v. Innis, 446 U.S. 291 (1980) 6, 7, 8, 9, 10

State v. Burnett, 429 S.W.2d 239 (Mo. Sup. Ct. 1968). 10

United States v. Boston, 508 F.2d 1171 (2d Cir. 1974),

cert. denied, 421 U.S. 1001 .. 10

United States v. Criswell, 696 F. 2d 636 (8th Cir. 1983) 10

United States v. Davis, 527 F.2d 1110 (9th Cir. —

cert. demed, 425 953 «00... pips areca 10

Vines v. State, 402 A.2d 900 (Md. Ct. of Appeals 1979) 10

No.

IN THE

Supreme Court of the United States

October Term, 1984

State or New York,

Petitioner,

against

AuFio FErRo,

Respondent.

PETITION FOR A WRIT OF CEPTIORARI TO

THE COURT OF APPEALS OF THE

STATE OF NEW YORK

Opinion Below

The opinion of the Court of Appeals of the State of New

York, not yet reported, appears in the appendix hereto

(pp. 15a-21a).

Jurisdiction

The decision of the Court of Appeals of the State of

New York was entered on October 25, 1984. This Court’s

_ jurisdiction is invoked under 28 U.S.C. §1257(3).

Lo

Constitutional Provisions Involved

Fifth Amendment

‘‘No person... shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law.’’

Fourteenth Amendment

Section 1. ‘‘...nor shall any State deprive any person

of life, liberty, or property, without due process of law ...’’

Statement of Facts

Introduction

On December 5, 1975, Lillian Sher was murdered in her

home during the course of a robbery in which some furs

were stolen. The respondent was arrested for the crime

a week later. At the stationhouse, the respondent declined

to answer any questions after he had received the Miranda

warnings. He thereafter requested to speak to a district

attorney, and was told that he would have to first tell the

police what he wanted to say. The respordent, however,

said nothing further at this time. One of the arresting

officers subsequentiy retrieved the stolen furs from the

apartment of an accomplice and brought them to the station-

house, where he placed them in front of the respondent’s

detention cell. The police did not say anything or attempt

to engage the respondent in conversation. At this time,

the respondent renewed his request to speak to a district

attorney. When informed that the district attorney would

not be able to do anything for him, the respondent asked

3

for a‘‘pisano’’. He was then permitted to talk to an Italian

detective, to whom he made statements which were used

agianst him at his state trial.

Upon a motion to suppress the statements made to the

detective, a Huntley hearing was held, after which the

motion was denied. The respondent was subsequently con-

victed, after trial, of murder in the second degree and was

sentenced to a term of imprisonment of 15 years to life.

The respondent’s appeal to the Appellate Division of

the Supreme Court of the State of New York, Second

Judicial Department, was affirmed, with opinion, by a 3

to 2 decision. On appeal, by leave to the Court of Appeals

of the State of New York, the order of the Appellate Divi-

sion, Second Judicial Department, was reversed by a 5 to 1

decision.

The Evidence

The respondent was arrested in front of his furniture

store a week after the homicide by Detectives Arnold Hen-

dricks and Robert Hudson. As he was being taken to the

police car, the respondent asked for what he was being ar-

rested. Hudson replied, ‘‘ Don’t make any problems, don’t

talk just get into the radio car. You are locked up for mur-

der’’. After the respondent had been transported to the

stationhouse, he was given his Miranda rights. When asked

whether he wanted to answer any questions without an

attorney, the respondent replied negatively. The interro-

gation ended immediately. About four and a half hours

later, at approximately 7:30 p.m., the respondent asked

to speak to a district attorney. Detective Hudson in-

4

formed the respondent that he would first have to tell

him what he wanted to say. When the respondent re-

peated his request Hudson replied, ‘‘You have to tell me

what you want to talk to him about so I can relate that

to him. Otherwise, he won’t come’’. The repondent

said nothing further at this time. Later that evening,

Hudson retrieved the stolen furs from the apartment of

the respondent’s accomplice, Thomas Lewis. Returning

to the stationhouse at approximately 9:45 p.m., Hudson

placed the furs in front of the cell the respondent was

being detained in. At this time, the respondent repeated

his earlier request to speak to a district attorney. De-

tective Hudson again informed the respondent that he

first had to tell him what he wanted to say. In response,

the respondent promised to tell the police anything they

wanted to know so long as the district attorney would do

something for him. Hudson, however, did not take any

statements from the respondent. Instead, he told him that

neither he nor the district attorney would be able to do

anything for him. The respondent nevertheless asked to

speak to a “pisano”. In acordance with this request Detec-

tive Walter Cassi, who was not assigned to the case, took

the respondent into an empty room, where he informed him

that he was an Italian. When the respondent said, ‘‘I can’t

afford to do a lot of time. What can I tell you?’’, Cassi,

rather than extracting a statement from the respondent,

simply told him that he would not be able to make any

promises but would relate anything he told him to the dis-

trict attorney ‘‘and whatever they do that’s their busi-

ness’’. After a period of silence the respondent, in nar-

rative form, recounted that he had been told by the dece-

dent’s next-door neighbor that decedent was giving her a lot

———— _—

5

of trouble for which she wanted the decedent robbed as a

means of revenge; that he had told the neighbor he was

not interested ; and that in response to her question whether

he could get somebody to commit the robbery, had re-

sponded only that he would think about it. Upon com-

pleting his narration, the respondent again said that he

could not afford to do a lot of time.

On March 28, 1977, immediately prior to the selection

of the jury, the trial judge denied the respondent’s motion

to suppress the statement made to Detective Cassi. The

statement was used at trial, and the respondent was con-

victed of felony murder in the second degree.

The Appeal to the Appellate Division

Upon appeal to the Appellate Division of State Su-

preme Court, Second Ju icial Department, the respondent

contended that the placement of the furs in front of his

cell amounted to the functional equivalent of questioning

within the intendment of Rhode Island vy. Innis, 446 US.

291 (1980) and, as this took place after he had invoked his

Fifth and Fourteenth Amendment rights to remain silent

following the administering of the Miranda warnings, the

respondent further argued that his right to cut off question-

ing under Michigan v. Mosley, 423 U.S. 96 (1975) had not

been scrupulously honored. By a 3 to 2 vote, the Appellate

Division affirmed the trial court’s order denying suppres-

sion. In its opinion, the majority reasoned as follows [ Peo-

ple v. Ferro, 92 A.D.2d 298, 303-04 (2d Dept. 1983) ] :

As Ferro already realized, only the testimony of Lewis

or Feliciano could connect him to the furs, and their

testimony could condemn him even without the furs.

6

The isolated viewing of the furs therefore constituted

no more than an innocuous translation of the obvious

into concrete terms. The subsequent inculpatory state-

ments to Cassi, a detective completely unconnected

with the case, must thus be viewed as the self-serving

efforts of an aging criminal to spare himself the re-

mainder of his life in captivity, and not the result of

psychological coercion or police behavior reasonably

likely to elicit an incriminating response. Our conclu-

sion is bolstered by Ferro’s compulsion to proceed

with his story despite the police refusal to offer him a

deal, and by the fact that Ferro was permitted to ter-

minate his story at a point where he characterized his

conduct as innocent in nature. Police anxious to ob-

tain a confession in disregard of a defendant’s Miranda

rights simply do not proceed in such a manner. We

further note that Ferro was not an easily awed or

intimidated novice in the criminal justice system.

The Appeal to the New York Court of Appeals

On appeal, by permission of one of the dissenting jus-

tices at the Appellate Division, to the New York Court of

Appeals, the respondent raised the same arguments as those

which had been presented to the Appellate Division. By a

5 to 1 vote, the Court of Appeals reversed the order of the

Appellate Division. In an opinion, the majority held that

the placement of the furs in front of the respondent’s deten-

tion cell constituted an interrogation under Rhode Island v.

Innis, 446 U.S. 291, since an objective observer with the

same knowledge concerning the respondent as the police had

would have concluded that the conduct of the police was

reasonably likely to elicit a response. The majority fur-

ther held that in view of the absence of a fresh set of

Miranda warnings the respondent’s right to cut off ques-

" BEST AVAIL

7

tioning was not scrupulously honored. The full texts of

the majority and dissenting opinions appear in the appen-

dix hereto (pp. 15a-29a).

Reasons for Granting the Writ

Introduction

The petitioner argues the following reasons why this

petition for writ of certiorari should be granted:

1. The decision of the New York Court of Appeals rests

solely upon the Constitution of the United States.

2. The issue of whether the mere placement of physical

evidence in front of a person accused of committing a crime

without any accompanying words, acts, or other conduct,

constitutes the functional equivalent of an interrogation

under Miranda v. Arizona, 384 U.S. 436 (1966), is an ex-

tremely substantial federal question which the Court has

never decided. We submit that the position of the New

York Court of Appeals on this issue conflicts with the

spirit of Rhode Island v. Innis, 446 U.S. 291 (1980), and

interprets the ‘‘likely to elicit’’ test too literally and me-

chanically.

3. The question of whether the Courts decision in

Michigan v. Mosley, 423 U.S. 96 (1975), created an in-

flexible per se rule mandating the administering of a fresh

set of Miranda warnings before questioning can be resumed

is also a very substantial federal question which has never

been decided by the Court. We submit that the New York

Court of Appeals misapplied Mosley and created an un-

justified per se rule.

ABLE COPY ©

POINT ONE

The decision rests solely upon the Constitution of

the United States.

There are no valid, independent state grounds for the

decision reached by the New York Court of Appeals. There-

fore, the doctrine expressed in Jankovich v. Toll Road Com-

mission, 379 U.S. 487 (1965), is not applicable. Further,

there is no need to remand this case to the New York Court

of Appeals for clarification of its opinion [Ohio v. Gal-

lagher, 425 U.S. 257 (1976)]. In defining interrogation as

‘whether an objective observer with the same knowledge

concerning the suspect as the police had would conclude

that the remark or conduct of the police was reasonably

likely to elicit a response’’, and holding that the police, by

placing the furs in front of the respondent’s cell without

giving a new set of warnings, failed to scrupulously honor

the respondent’s right to cut off questioning, the New York

Court of Appeals was clearly basing its decision upon its

interpretation of the Fifth Amendment to the United States

Constitution, as made applicable to the states by the Four-

teenth Amendment. The New York Court of Appeals re-

vealed the federal basis for its decision by interpreting

Rhode Island v. Innis, supra, and Michigan v. Mosley, supra.

As the decision did not rest on the New York Constitu-

tion or state law but, instead, entirely upon an interpreta-

tion of federal constitutional law, the Court has jurisdiction

to entertain this matter.

POINT TWO

The court below improperly found that the mere

placement of the furs in front of the respondent’s cell

was, in and of itself, the functional equivalent of ques-

tioning so as to constitute an interrogation under Mi-

randa v. Arizona, 384 U.S. 436 (1966).

The evidence at the suppression hearing established that

Detective Hudson placed the furs in front of the respond-

ent’s cell without saying or doing anything further. The

New York Court of Appeals nevertheless held that the

placement of the furs next to the respondent constituted

interrogation under Miranda. In so holding, the court be-

low misinterpreted Rhode Island v. Innis, 446 U.S. 291

(1980), and applied the ‘‘likely to elicit’’ test enunciated

in that decision too literally and mechanically. We submit

that Rhode Island v. Innis, supra, was never intended to

apply to situations such as those found in this case where

the sole conduct challenged is the placement of evidence

next to defendants. Although the placement of the furs

in front of the respondent’s cell might be labelled a ‘‘subtle

compulsion’’ [see Rhode Island v. Innis, supra, at 303], the

| Court in Innis rejected the notion that any ‘‘prompting’”’ —

of a person in custody is somehow evil per se [see Edwards

v. Arizona, 451 U.S. 477, 487-88 (1981), Burger, Ch. J.,

concurring}.

The Court has never decided whether the mere placing

of eviderce in front of a defendant should be deemed the

functional equivalent of questioning under Miranda. The

validity of the practice of displaying physical evidence to

defendants has been sanctioned by a number of federal

tt eli ens

a

10

and state appellate courts, who have refused to regard such

practices as interrogations ‘n violation of asserted Miranda

rights [see United States v. Criswell, 696 F.2d 636, 639

(8th Cir. 1983) ; United States v. Davis, 527 F.2d 1110, 1111

(9th Cir. 1975), cert. denied 425 U.S. 953; Umited States

v. Boston, 508 F.2d 1171, 1174-75 (2nd Cir. 1974), cert.

denied 421 U.S. 1001; Vines v. State, 402 A.2d 900 (Md. Ct.

of Appeals 1979) ; State v. Burnett, 429 S.W.2d 239, 242, 243

(Mo. Sup. Ct. 1968)]. We submit that the Court should

clarify the validity of this practice. Indeed, the need for

clarification is highlighted by this case. The dissent em-

phasized its strong belief that the majority was interpreting

the ‘‘likely to elicit’’ test set forth in Rhode Island v. Innis,

supra, too literally and mechanically (p. 22a). The ma-

jority, on the other hand, in rejecting the dissenter’s inter-

pretation noted, in a footnote, as follows (p. 21a):

The dissent’s interpretation of Innis implies that the

Supreme Court did not mean what it held in that case.

We should not indulge in such speculation, particularly

since Innis was decided but a few years ago.

By granting the petition for a writ of certiorari, the Court

would have the opportunity of explicitly determining the

issue of whether its decision in Rhode Island v. Innis, supra,

was meant to apply to the factual setting present in this

case.

Soin seal aeationes Oks

11

POINT THREE

The court below improperly held that Michigan v.

Mosley, 423 U.S. 96 (1975) created a per se rule that

a fresh set of Miranda warnings must be given as a pre-

requisite to the resumption of questioning.

Assuming, arguendo, that the placement of the furs in

front of the respondent’s detention cell constituted the

functional equivalent of questioning, the New York Court

of Appeals misinterpreted Michigan v. Mosley, 423 U.S.

96 (1975), by holding that a new set of Miranda warnings

had to be given before questioning could be resumed (pp.

15a-16a).

In Michigan v. Mosley, supra, the Court held that an

accused can be interrogated even after he has been given

his Miranda rights and has invoked his constitutional right

to remain silent, so long as his right to cut off questioning

was scrupulously honored. In determining that this right

had been scrupulously honored the Court cited several

factors in support of its decision, one of which was the

administering of a fresh set of Miranda warnings to Mosley

prior to the resumption of questioning [id., at 105-06].

However, there were other factors which also supported

the decision, and the Court never held that a fresh set of

warnings was a prerequisite to the resumption of question-

ing. The New York Court of Appeals, however, by holding

that the placement of the furs in front of the respondent’s

cell constituted interrogation which was impermissible ‘‘be-

cause no new Miranda warnings were administered’’ (p.

16a) misapplied Mosley and created an unjustified per se

rule. As the Court never held that a new set of warn-

12

ings was indispensible to the resumption of interrogation,

regardless of the length of the interval between the initial

and second set of questioning, we submit that the Court

should clarify Mosley by explicitly holding that additional

warnings are not constitutionally required to scrupulously

honor a person’s right to cut off questioning.

This case illustrates that a per se rule would lead to

absurd and unintended results. The respondent, after ini-

tially invoking his right to remain silent, expressed a desire

to break his silence when he requested to speak to a district

attorney. This decision by the respondent was not coerced

or induced in any manner by the police. Then, nearly seven

hours after the respondent had first invoked his right to

remain silent, the furs were placed in front of his cell. Even

assuming that this act constituted the functional equivalent

of an interrogation, this so-called resumption of question-

ing occurred only after the passage of a significant period

of time. Indeed, the interval in this case was far longer

than that found in Michigan v. Mosley, supra, at 104, 106

(an interval of more than two hours held to constitute a

significant period of time). Further, the police did not

persist in repeated efforts to wear down the respondent’s

resistance and make him change his mind [Michigan v.

Mosley, supra, at 105-06]. In view of these facts, it is clear

that the respondent’s choice to make his narrative state-

ment to Detective Cassi was a free one and an intelligent

exercise of his judgment. Hence, there was no need or

necessity to administer a fresh set of Miranda warnings in

this case. Clearly, this case illustrates that the per se rule

created by the New York Court of Appeals not only serves

no useful purpose but yields absurd and unintended results

13

which would transform the Miranda safeguards into wholly

irrational obstacles to legitimate police investigative ac-

tivities.

As the Court has never held that a fresh set of Miranda

warnings is a constitutional requirement to the resumption

of questioning, and as the New York Court of Appeals has

misinterpreted Mosley by creating an unjustified per se

rule mandating new warnings, the Court should clarify its

holding in Mosley by ruling that the United States Consti-

tution does not require the inflexible rule created by the

court below.

Conclusion

For the reasons stated above, the petition for

a writ of certiorari should be granted.

Respectfully submitted,

JouHn J. Santucci

District Attorney

Queens County

WILLIAM Scrr AGER

Assistant District Attorney

Of Counsel

APPENDICES

Opinion of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department

eS >

THe Propur or THE State or New York,

Respondent,

v.

Aurio Frrro,

Appellant.

rr

Second Department, March 21, 1983

SUMMARY

AppkAL from a judgment of the Supreme Court (GrorGcE

Baupacu, J.), rendered May 25, 1977 in Queens County

upon a verdict convicting defendant of murder in the second

degree.

HEADNOTE

Crimes—Confession—Inculpatory Statements by De-

fendant—Voluntariness

The fact that a suspect views or learns of potential

physical or other evidence against him does not lead to the

inexorable conclusion that said viewing constitutes subtle

coercion or the functional equivalent of questioning nor

does the fact that a statement is made because a suspect

learns that the incriminating content of the statement will

2a

be discovered in any event mean that the statement is made

as a result of compelling influences and not spontaneonsly.

Accordingly, where defendant was arrested for murder

after the death of a victim of a burglary and, subsequent to

the invocation of his Miranda rights, made inculpatory

statements following the placement outside his cell by a

police officer of a bundle of furs which had been stolen from

the victim’s home, said statements cannot be viewed as

the result of psychological coercion or police behavior

reasonably likely to elicit an incriminating response in vio-

lation of defendant’s Miranda rights; defendant realized

that only the testimony of his accomplices could connect him

to the furs and that their testimony could condemn him

even without the furs, thus rendering the isolated viewing

of the furs no more than an innocuous translation of the

obvious into concrete terms.

APPEARANCES OF COUNSEL

Anthony V. Lombardino for appellant.

John J. Santucci, District Attorney (William Schrager

of counsel), for respondent.

3a

OPINION OF THE COURT

Tyompson, J.

Lillian Sher, an elderly woman living alone in her one-

family attachel house in Forest Hills, was confronted by

burglars who entered her abode on December 5, 1975 to

take her property. The invaders vacated the residence

only after subduing their innocent victim and looting the

premises. Her lifeless body, bound hand and foot, was not

discovered until December 11. The piece of cloth stuffed

into her mouth to stifle any potential cries for help also

cut off her oxygen supply and caused her asphyxiation.

Alfio Ferro, the 58-year-old proprietor of a used furni-

ture store in Manhattan, with no obvious connection to Sher,

was arrested by Detective Robert Hudson on December

12 in front of his store and was informed his arrest was for

murder. Arrested along with Ferro was Thomas Lewis,

Ferro’s employee. Lewis had a substantial criminal record,

and Ferro had been arrested in both August, 1975 and

November, 1975 for criminal possession of stolen property.

Detective Hudson told Ferro to keep quiet and not make

any statements. Transported back to the 106th Precinct

along with Ferro and Lewis was Wanda Feliciano, a 17-

year-old employee of Ferro’s. Feliciano was an admitted

lesbian who conceded during her trial testimony that at

ene time she had swallowed one quarter of a bottle of

ammonia, and several days later had been taken tu the

hospital after consuming six Tuinals. She also acknowl-

edged other drug usage. Detective Hudson and his group

arrived at the precinct at about 3:00 p.m.

When Ferro was brought to the precinct, Detective Ar-

nold Hendricks identified himself to Ferro and informed

4a

Ferro that he had been arrested for the Sher homicide.

Hendricks gave Ferro his Miranda rights and Ferro stated

that he understood them. When Ferro was asked if he was

willing to answer questions without an attorney being

present, his response was ‘‘No’’. Ferro did not ask for

an attorney. He was then placed in a detention cell.

After spending approximately four and one-half hours

in the cell, an ample amount of time to reflect upon his

situation, Ferro spontaneously asked Detective Hudson at

about 7:30 p.m., ‘‘Can I speak to a D.A.?’’ Hudson in-

formed him that the District Attorney had left and would

have to be summoned to return. When asked what he

wanted to say to the District Attorney, Ferro simply re-

peated his desire to speak to a District Attorney. Hudson

explained that Ferro would have to tell him what he wanted

to talk to the District Attorney about so the District At-

torney could be advised, and that he would not come with-

out this. In response to this Ferro ‘‘didn’t say anything’’.

Detectives Hudson and Hendricks returned with Thomas

Lewis to Lewis’ apartment in Manhattan at about 8:30 p..,

and Lewis surrendered furs that had been stolen during

the burglary. Upon their return to the precinct at approxi-

mately 9:45 p.m., Hendricks put the furs down in front of

Ferro’s cell, ‘‘a foot away from him’’, after which he took

Lewis to another area of the precinct. Hendricks candidly

conceded that he did this ‘‘[fJor him to tell what hap-

pened’’.

At this point Ferro grabbed the mesh of the cell with

both hands and told Hudson ‘‘I have to talk to a D.A.’’.

Hudson again told him that a District Attorney would not

come unless Ferro told him why he wanted him. Ferro

responded ‘‘I will tell you guys what you want to know if

5a

the D.A. can do something for me’’. Hudson informed

Ferro that neither he nor a District Attorney could do any-

thing for him, at which point Ferro expressed his desire

to speak to a ‘‘Pisano’’.

Detective Walter Cassi, who was not working on the

Sher case, was told that Ferro wanted to speak to a ‘‘Pi-

sano’’. Cassi identified himself to Ferro as an Italian, and

when Ferro expressed a desire to speak with him, Cassi

took him to a separate room. Ferro then stated ‘‘I can’t

afford to do a lot of time. What can I tell you?’’ Cassi

instructed him that he would forward Ferro’s information

to the District Attorney, but what the District Attorney did

was his business and no promises could be made. Ferro

then stated that he had been introduced to Florence Free-

man, who lived next to Sher, by a woman named Irish.

Freeman complained to him that Sher had been giving her

trouble and had once grabbed her by the neck. Claiming

that Sher was ‘‘a nut and dirty’’, she expressed a desire to

have Sher robbed. When Ferro told Freeman that he was

not interested, she asked him if he could get anybody else

and he told her he would think about it. When Cassi told

Ferro that he had not told him anything relative to the

investigation, Ferro told him ‘‘I just can’t do a lot of time’’.

At this point the interview terminated, and Ferro was

taken to central booking about 10:00 p.m.

Following the denial of Ferro’s motion to suppress the

statements he made subsequent to viewing the furs, the

matter proceeded to trial. The most damning testimony

came from Wanda Feliciano who testified to Ferro’s pres-

ence at the scene at the time of the commission of the crime

and to admissions made to her by Ferro. Following a

6a

lengthy, hotly contested trial, Ferro was convicted of felony

murder.

On appeal Ferro posits a plethora of potential errors

that warrant a new trial, but only one merits discussion.

He argues that the placement of the furs in front of the

cell constituted either a subtle form of psychological coer-

sion or, in the alternative, the functional equivalent of ques-

or, in the alternative, the functional equivalent of ques-

tioning in disregard of his invocation of his Miranda rights.

He asserts that the faliure to suppress the ensuing state-

ments constituted reversible error. For the reasons stated

herein we do not agree, and affirm the judgment of con-

viction.

In Rhode Island v Innis (446 US 291, 300) the Supreme

Court noted that ‘‘ ‘fi]nterrogation,’ as conceptualized in

the Mirhnda opinion, must reflect a measure of compulsion

above and beyond that inherent in custody itself.’’ The

court further refined the concept of interrogation as follows

(p 301): ‘‘That is to say, the term ‘interrogation’ under

Miranda refers not only to express questioning, but also to

any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an in-

criminating response from the suspect. The latter portion

of this definition focuses primarily upon the perceptions of

the suspect, rather than the intent of the police. This focus

reflects the iact that the Miranda safeguards were de-

signed to vest a suspect in custody with an added measure

of protection against coercive police practices, without

regard to objective proof of the underlying intent of the

police. A practice that the police should know is reasonably

likely to evoke an incriminating response from a suspect

thus amounts to interrogation.’’

7a

In Michigan v Mosley (423 US 96), the Supreme Court

also discussed the role played by the Miranda safeguards

in counteracting the coercive pressure inherent in the

custodial setting. The critical Miranda safeguard provides

the defendant with the right to cut off questioning, thereby

enabling him to control the timing of the questioning, its

dr ration, and the subjects to be discussed (see, also, People

v Grant, 45 NY2d 366). The instant appeal must be ana-

lyzed within the foregoing context.

We note at the outset that if the intent of the police was

dispositive, Detective Hendricks’ concession that he put

the furs in front of Ferro to elicit a response would mandate

a reversal. Although this testimony is still somewhat pro-

bative as to whether the police should have known that

this act was reasonably likely to elicit an incriminating

response, the totality of the circumstances must be consid-

ered. Just as police good faith is not an acceptable excuse

negating a violation of a defendant’s Miranda rights, their

dubious motivations herein cannot pre-empt this court from

objectively evaluating whether their actions were reason-

ably likely to elicit an incriminating response.

The fact that a suspect views or learns of potential

physical or other evidence against him doe: not lead to the

inexorable conclusion that said viewing constituted subtle

coercion or the functional equivalent of questioning (see

State v Grisby, 97 Wn 2d 493; People v Prator, 93 Mise 2d

303). Were the rule otherwise, a unique and newly imposed

burden would be saddled upon the police to shield a defend-

ant from learning of any aspect of the case against him

once he invokes his Miranda rights or before the Miranda

rights are given and waived. So onerous and exacting a

burden has not been demanded. Thus, in the case of People

Sa

v Baez (79 AD2d 608), where the defendant was approached

by an undercover officer he had sold drugs to and blurted

out an inculpatory statement upon realizing what he had

done, the utterance was found to be spontaneous and not

in violation of his Miranda rights.

The fact that a statement is made because a suspect

learns that the incriminating content of the statement will

be discovered in any event does not mean that the state-

ment was made as a result of compelling influences and

was not spontaneous (People v Torres, 21 NY2d 49). Fur-

thermore, not every provocative statement made by the

police in a defendant’s presence which elicits an incrimina-

ting response will be found to be improper, where there is

no course of questioning or an interrogational environment

(People v Bryant, 87 AD2d 873).

Within the framework of the foregoing and the unusual

facts presented herein, we conclude that Ferro’s response

to seeing the furs was not the product of the functional

equivalent of questioning or phychological coercion. When

Ferro was arrested a full week after the crime was com-

mitted, he had to be troubled by the strong possibility that

only a breach of the cabal that knew what really happened

could have led the police to him. One can only surmise the

anxiety level permeating Ferro’s thought processes as he

was returned to Queens with Lewis and Feliciano, realiz-

ing that the continued silence of a suicidal, drug-using

lesbian and a small-time thug was all that stood between

him and his final, immutable linkage to the Sher murder.

Ferro was told to remain silent as soon as he was arrested,

and his invocation of his Miranda rights was scrupulously

honored.

eT

nisin beeta ni

9a

After sitting in the cell long enough to contemplate the

bleak future of a 58 year old convicted of a callous murder,

Ferro teetered on the very edge of confession at 7:30 p.m.

when he asked to speak to a District Attorney. Even at this

point the police did not press their advantage and apply the

slight nudge necessary to push Ferro into making the

cathartic and potentially self-serving statement he was

abviously contemplating. The police did not rush out and

get an Assistant District Attorney who might obtain a

confession before Ferro invoked his right to an attorney.

Approximately two hours later, Ferro saw the furs.

They were not recovered from Ferro, and nothing inherent

in the objects linked Ferro to the crime. As Ferro already

realized, only the testimony of Lewis or Feliciano could

connect him to the furs, and their testimony could condemn

him even without the furs. The isolated viewing of the furs

therefore constituted no more than an innocuous transla-

tion of the obvious into concrete terms. The subsequent

inculpatory statements to Cassi, a detective completely

unconnected with the case, must thus be viewed as the self-

serving efforts of an aging criminal to spare himself the

remainder of his life in captivity, and not the result of

psychological coercion or police behavior reasonably likely

to elicit an incriminating response. Our conclusion is

bolstered by Ferro’s compulsion to proceed with his story

despite the police refusal to offer him a deal, and by the fact

that Ferro was permitted to terminate his story at a point

where he characterized his conduct as innocent in nature.

Police anxious to obtain a confession in disregard of a

defendant’s Miranda rights simply do not proceed in such a

manner. We further note that Ferro was not an easily

awed or intimidated novice in the criminal justice system.

10a

In short, Ferro asks us to raise the concepts of psycho-

logical coercion and the functional equivalent of question-

ing to levels that are in no way necessary to fully afford

the protections required by Miranda v Arizona (384 US

436). This we will not do. Accordingly, the judgment of

conviction must be affirmed.

Lazer, J. P. (dissenting). The principal issue is whether

the police action of placing the stolen furs in front of

defendant’s cell constituted the functional equivalent of

interrogation. My colleagues conclude that the defendant’s

response on seeing the furs was not evoked by such interro-

gation. My disagreement stems from the fact that the

defendant previously had invoked the right to remain

silent ; therefore—without reaching any issue as to the right

to resume questioning—the failure to afford the Miranda

warnings before the furs were placed requires suppression

of the defendant’s statement and a new trial. The issue is

determined by evaluating the police conduct and not by

speculative probing of the defendant’s innermost psyche.

On December 12, 1975, Detective Robert Hudson ar-

rested Alfio Ferro for murdering Lillian Sher while robbing

her in her aparunent. Ferro was brought to the 106th

Precinct in Queens, heard his rights read, declared that he

understood them, made no request for counsel but stated

his unwillingness to answer questions. He was questioned

no further.

Later in the day, while Ferro still was in a detention cell

in the precinct’s squad room, he asked Detective Hudson

whether he could speak to the District Attorney. Hudson

answered: ‘‘You have to tell me what you want to talk to

him about so I can relate that to him. Otherwise, he won’t

ecome’’. Ferro resumed his silence.

lla

That evening, after Mrs. Sher’s furs had been recovered,

another detective placed them a foot away from Ferro’s

cell. According to Hudson, who was then present, Ferro

grabbed the mesh of the cell and said to him, ‘‘ Hey, I got to

talk to you’’ but when asked what it was he wanted to say,

he responded: ‘‘I have to talk to a D.A..’’. Hudson told

Ferro that ‘‘ You have to tell me what you want or the D.A.

won’t come here; if you want to make a statement’’. Ferro

then declared that he would ‘‘tell you guys what you want

to know if the D.A. can do something for me’’. Hudson

said that neither he nor the District Attorney could do any-

thing for him.

Within 15 minutes after his conversation with Hudson,

Ferro asked to speak with a ‘‘Pisano’’ which resulted in a

conversation with Detective Walter Cassi at the cell. Cassi

asked Ferro if he wanted to say something and upon

receipt of an affirmative reply took him into an office where

Ferro asserted that he could not afford to do a lot of time.

He then related a discussion he had had with Sher’s next

door neighbor, Florence Freeman. The relations between

Freeman and Sher had been troubled, and since Freeman

thought Sher was wealthy, she wanted her robbed. AlI-

though Ferro professed lack of interest in a robbery, he

told Freeman that he would think about finding someone

to do it. Cassi informed Ferro that he had not said any-

thing relative to the investigation and that he could not

make any promises, to which Ferro reiterated that he

could not do a lot of time and the conversation ended.

On this factual scenario, the Fifth Amendment is the

only issue and it scarcely bears repetition to note that to

safeguard the Fifth Amendment privilege against self in-

crimination, the warnings required under Miranda v Ari-

lla

zona (384 US 436, 471) are ‘‘an absolute prerequisite to

interrogation’’. Statements obtained by custodial inter-

rogation or its functional equivalent, but not preceded by

Miranda warnings, are not a true product of free choice

and are per se inadmissible in evidence (see, generally,

Note, Invocation of Miranda Rights: A Question of Fact?

Fare v Michael C., 21 BC L Rev 922). Custodial interroga-

tion includes that which is psychologically oriented, and it

is axiomatic that interrogation must cease if, in any manner,

either prior to or during questioning, the individual indi-

cates that he wishes to remain silent (Miranda v Arizona,

supra, p 448). Any statement taken after the person in-

vokes his privilege cannot be other than the product of

compulsion, subtle or otherwise (Miranda v Arizona, supra,

p 474).

In Rhode Island v Innis (446 US 291), the Supreme

Court construed Miranda as applicable not only to express

questioning but to the ‘‘functional equivalent’’ of question-

ing as well. Limiting the scope of Miranda to express

questioning would (p 299, n 3) ‘‘ ‘place a premium on the

ingenuity of the police to devise methods of indirect inter-

rogation, rather than to implement the plain mandate of

Miranda’ ’’. In addition to express questioning, interroga-

tion was defined as including (supra, p 301) ‘‘any words or

actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating re-

sponse from the suspect.’’

The functional equivalent of questioning encompasses

‘‘any remarks, psychological tactics or patient maneuver-

ing’’ employed to undermine the individual’s will to resist

l3a

(People v Faison, 78 Til App 3d 911, 913). Confronting an

accused with incriminating evidence is a tactic frequently

employed to induce a confession (United States v Barnes,

432 F2d 89; Kamisar, Brewer v Williams, Massiah, and

Miranda: What is ‘‘Interrogation’’?, When Does it Mat-

ter?,67 Geo LJ 1). Here, the confrontation for the obvious

purpose of getting the defendant to abandon his self-im-

posed silence was a flagrant violation of Miranda (United

States v Barnes, supra, p91). People v Bodner (75 AD2d

440, 443) is illustrative, for there, where defendant sought

to inculpate his cousin as the arsonist, the police declaration

to the defendant that the cousin’s alibi had ‘‘checked out’’

was considered the equivalent of questioning and—since no

warnings had been given—suppression was required. In

People v Lange (77 AD2d 682, 633), an officer’s comment

in the charged atmosphere of the rescue of a rape defend-

ant from an agitated crowd that it ‘‘ ‘was lucky [the de-

fendant] didn’t get killed’ ’’ was held to subject the defend-

ant to ‘‘ ‘questioning or its functional equivalent’ ’’. Other

examples of the functional equivalent include the recitation

of strong evidence against the suspect (People v Grant,

45 NY2d 366; People v Pugh, 70 AD2d 664), a conversation

between police officers concerning defendant’s ignorance of

the brand name of a stolen television set ‘‘ within earshot of

defendant’’ (People v Tirado, 79 AD2d 907, 908), disclosure

of polygraph test results to the suspect (State v Godfrey,

131 NJ Super 168), and a conversation regarding the death

penalty as defendant’s fate (State v Emery, 131 Ariz 493).

Notwithstanding the majority’s focus on the defendant’s

psychological reactions tc his plight, and even his thought

processes and perceptions, the proper focus of the ‘‘func-

tional equivalent of interrogation’’ standard relates to the

l4a

propriety of police conduct—‘‘ words or actions on the part

of police officers that they should have known were reason-

ably likely to elicit an incriminating response’’ (Rhode

Island v Innis, 446 US 291, 302, supra). The cases cited by

the majority, People v Prator (93 Mise 2d 303) and State v

Grisby (97 Wn 2d 493), involved apparently coincidental

viewings of evidence by the defendant during administra-

tive duties routinely being carried out. Here, however,

there was no reason to place Mrs. Sher’s furs in front of

Ferro’s jail cell except to break his silence or elicit an

incriminating response. Moreover, since Detective Hen-

dricks admitted that the tactic was designed to elicit an

incriminating response, it is highly unlikely that ‘‘the

practice will not also be one which the police should have

known was reasonably likely to have that effect’’ (Rhode

Island v Innis, supra, p 301, n 7). While the furs might

legitimately have been used for interrogation had the de-

fendant not invoked his right to remain silent, their use as a

psychological weapon to overcome that silence or to evoke

an incriminating statement, without a fresh set of warnings,

was palpably improper (see Michigan v Mosley, 423 US

96; People v Pugh, supra, p 666).

Accordingly, I vote to reverse, grant the motion to sup-

press the statements in question, and order a new trial.

Mancano and WeErnsTEIN, JJ., concur with THompson,

J.; Lazer, J. P., dissents and votes to reverse the judgment,

grant the defendant’s motion to suppress and order a new

trial, with an opinion, in which GrsBons, J., concurs.

Judgment of the Supreme Court, Queens County, ren-

dered May 25, 1977, affirmed.

Lda

Opinion of the Court of Appeals,

State of New York

COURT OF APPEALS

State or New YorkK

2 No. 413

—_—_——n eee

Tue Prop.ir &c.,

Respondent,

Vv.

AuFIo FERRO,

Appellant.

A

OPINION

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

(413) Anthony V. Lombardino, Kew Gardens, for

appellant.

John J. Santueci, DA, Queens County (William

Schrager of counsel) for respondent.

MEYER, J.

What constitutes ‘‘interrogation’’ of a suspect who,

after Miranda warnings, has declined to answer questions

is determined not by the subjective intent of the police, but

by whether an objective observer with the same knowledge

concerning the suspect as the police had would conclude that

the remark or conduct of the police was reasonably likely

to elicit a response’ Because applying that test we con-

1. Not involved in the present case and, therefore, not reached

by us, is whether the same test applies when the police conduct is in

furtherance of routine administrative duties (see People v Prator

93 Misc 2d 303; State v Grisby, 97 Wn2d 493; cf. People v Bryant,

59 NY2d 786).

l6a

clude that the conduct of the police in placing in front of

the cell in which defendant was being detained furs stolen

from the murder victim’s residence constituted interroga-

tion and because no new Miranda warnings were admin-

istered to defendant Ferro, his statements made subsequent

to viewing the furs should have been suppressed. The

order of the Appellate Division should, therefore, be re-

versed, defendant’s motion to suppress those statements

granted, and a new trial ordered.

I

On December 5, 1975, Lillian Sher was murdered in her

home during the course of a robbery in which some furs

were stolen. A week later, defendant Ferro was arrested

for the murder and taken to the precinct station. After

the reading of his Miranda rights to him, Ferro declined

to answer any questions. Thereafter, while being held in

a detention cell, he asked Detective Hudson whether he

could speak to a district attorney. Told by Hudson that,

‘*You have to tell me what you want to talk to him about

so I can relate that to him. Otherwise, he won’t come,’’

defendant said nothing further. Hudson then left the

precinet.

When he returned, Hudson and his partner brought

with them the stolen furs, which they had obtained from the

apartment of a co-defendant, Thomas Lewis. Without any

verbal communication with defendant, the furs ‘‘were

placed right in front of the cell a foot away from [Ferro].’’

Ferro then ‘‘grabbed ahold of the wire mesh with both

hands and * * * said * * * ‘Hey, | got to talk to you.’’’ He

again told Hudson he wanted to speak to a district attorney,

stating ‘‘I will tell you guys what you want to know if the

lia

D.A. can do something for me.’’ Hudson responded that

neither he nor the district attorney could do anything for

Ferro. Hudson testified that there was one continuous

conversation, which began as soon as the furs were placed

on the floor in front of the cell. Its culmination was Ferro’s

request to speak to an Italian detective.

Detective Walter Cassi was then asked to speak to de-

fendant, and, approaching the detention cage, said ‘‘1 am

Italian. Do you want to say something.’’ Receiving a

positive response, Cassi took defendant into the command-

ing officer’s room, where defendant said ‘‘I can’t afford to

do a lot of time. What can I tell you?’’ Told by Cassi

that he could promise nothing, but would pass on whatever

was said to the district attorney, ‘‘and whatever they do

that’s their business,’’ Ferro recounted that he had been

told by a woman wuo was decedent’s next-door neighbor

that decedent was giving her a great deal of trouble for

which she wanted decedent robbed as a means of revenge,

that he had told the neighbor he was not interested, and

in response to her question whether he could get somebody

to do so, had responded only that he would think about it.

Neither before the furs were placed in front of the deten-

tion cell nor before Cassi began his conversation with de-

fendant in the commanding officer’s office were Miranda

warnings repeated anew.

The hearing judge denied defendant’s motion to sup-

press and after a jury trial defendant was found guilty

of felony murder. On appeal to the Appellate Division,

defendant raised nine points, only one of which—the ad-

missibility of the statements made to Cassi—was deemed

by that court to merit discussion. The judgment was af-

firmed, two Justices dissenting, the majority characterizing

18a

the statements ‘‘as the self-serving efforts of an aging crim-

inal to spare himself the remainder of his life in captivity,

and not the result of psychological coercion or police be-

havior reasonably likely to elicit an ineriminating re-

sponse.’’ The case is before us by leave of one of the dis-

senting Justices. The People, citing People v. Bryant (59

NY2d 786), argue that, the Appellate Division having af-

firmed, the suppression ruling may not be overturned by

us. They argue, alternatively, that the Appellate Division

majority was correct on the law. We disagree on both

points and, therefore, reverse.

i

A.

As hereafter developed, the test is not whether the

detectives in fact intended to interrogate defendant but

whether an objective observer would conclude that the con-

duct of the detectives was reasonably likely to elicit a re-

sponse from defendant. There being no dispute as to the

facts and there being no other inference that could be drawn

from the undisputed facts than that the police should have

known that defendant was reasonably likely to respond to

the placing of the furs before him by making a statement,

the issue, unlike that in Bryant, supra, is not beyond our

reach?

2. Bryant involved a question addressed by one officer to another,

overheard by defendant and to which he responded. Upon that

scenario “reasonable minds may differ as to the inference to be drawn

from the established facts’ (People vy McRay, 51 NY2d 594, 601;

accord: People v Harrison, 57 NY2d 470, 477). Here, as is more

fully discussed below, no other inference can be drawn from the un-

disputed facts than that defendant was likely to respond by making

a statement.

19a

B.

Miranda v Arizano (384 US 436) requires not only that

before interrogation can begin a suspect must be advised

concerning his right to remain silent and of his right to

counsel, but also that, ‘‘If the individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease’’ (1d.,

473-474). Moreover, the rule being designed to counteract

the coercive pressure of the custodial setting, a suspect’s

right to remain silent, once invoked, must be ‘‘scrupulously

honored’”’ (id., 479; Michigan v Moseley, 423 US 96, 103-104;

People v Wander, 47 NY2d 724, 725; see People v Grant,

45 NY2d 366, 373, 376). He may not within a short period

thereafter and without a fresh set of warnings be impor-

tuned to speak about the same suspected crime (People v

Gary, 31 NY2d 68, 70; Michigan v Moseley, 423 US 96, 106,

supra; see People v Buxton, 44 NY2d 33, 37), but a state-

ment volunteered’ or spontaneously made will not be sup-

pressible unless it is about the same crime and results from

express questioning or its functional equivalent under cir-

cumstances which do not include fresh warnings and do not

scrupulously honor the suspect’s right to cut off questioning

(Rhode Island v Innis, 446 US 290, 300-301; Michigan v

Moseley, supra; People v Bryant, 59 NY2d 786, supra).

As the Innis case makes clear, ‘‘the term ‘interrogation’

under Miranda refers not only to express questioning but

also to any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that

the police should know are reasonably likely to elicit an

3. Voluntariness—waiver in traditional terms—is to be dis-

tinguished (People v Grant, 45 NY2d 366, 374, supra). A statement

vo in fact be wholly voluntary and yet inadmissible because the

action after the Lense aig cut off questioning did not comply

wih rpured procedres id; Michigan v Moseley, 423 US at 100,

supra; v Tachon 417 US 433, 443).

20a

incriminating response’’ (446 US at 301). But, because

‘*[t}he latter portion of this definition focuses primarily

upon the perceptions of the suspect, rather than the intent

of the police’’ (id.), the question is not what was the sub-

jective intent of the police but rather what words or actions,

in light of their knowledge concerning the suspect, they

‘*should have known were reasonably likely to elicit an in-

criminating response”’ (id. at 302 [italics in original];

White, Interrogation Without Questions: Rhode Island v

Innis and United States v Henry, 78 Mich L Rev 1209, 1231-

1236; Kamisar, Brewer v Williams, Massiah and Miranda:

What Is ‘‘Interrogation’’? When Does It Matter?, 67 Geo

LJ 1, 19, n 115 [reprinted in Kamisar, Police Interrogations

and Confessions: Essays in Law and Policy, 156-158, n

21]; McCormick, Evidence, 330).

In the context of the foregoing rule, defendant’s state-

ments to Cassi must be suppressed. After the original

Miranda warnings, defendant declined to answer questions.

Although he thereafter asked to speak to a district attorney,

he abandoned that attempt when told that he first had to

reveal to Hudson what he wanted to talk about. With the

knowledge from defendant’s request to speak to a district

attorney that defendant had something on his mind that

he wanted to talk about but would not reveal to him,

Hudson, instead of acceding to defendant’s request that a

district attorney be called in, left and within a relatively

short time returned with decedent’s furs, which were placed

directly in front of defendant without any words being

spoken. The immediate result was defendant’s further re-

quest to speak with a district attorney, followed, in one

continuous conversation, by his request for an Italian de-

tective and his conversation with Cassi. Neither before the

placing of the furs nor before Cassi’s conversation with

defendant were fresh Miranda warnings given, although

21a

here, unlike the situation in People v Bryant, supra, there

was both time enough (o do so and clear reason, in light of

the prior refusal to speak, for doing so.

On those undisputed facts, objectively considered, no

other conclusion is possible than that, in causing the dece-

dent’s furs to be placed where defendant could not help

but see them, Hudson should have known, in light of defend-

ant’s prior request to speak to a district attorney, that

doing so was reasonably likely to elicit from defendant an

incriminating response. Where, as here, and as in Coombs

v Wingo (465 F2d 96, 99) and United States v Barnes (432

F2d 89, 91), the only possible object of the police action

in revealing evidence to a defendant is to elicit a statement

from him, it does no violence to logic to conclude that the

police should have known that it would do so (see McCor-

mick, Evidence, supra). Bearing in mind the placing of the

furs before Ferro, the absence of further warnings to him

and the relatively short time elapsed between his refusal

to answer questions and the placing of the furs, we conclude

that Ferro’s right to cut off questioning was not scrupu-

lously honored.*

We have considered defendant’s other arguments for

reversal and find them to be without merit.

For the foregoing reasons, the order of the Appellate

Division should be reversed, defendant’s motion to suppress

his statements made subsequent to his viewing of the furs

granted and a new trial ordered.

4. The string of adjectives in the last paragraph of the dissent

and of synonyms in the second paragraph on its page 2 overlooks

the meaning of “scrupulous,” which is “correct to the smallest de-

tail; punctiliously exact ; painstaking, precise’”’ (\Webster’s Third New

International Dictionary, p 2043). As Kamisar puts it, “If the police

conduct is designed and likely to pressure or persuade * * * a sus-

to incriminate himself * * * then that conduct is compulsion as

Miranda defines the self-incrimination clause” (op cit 67 Geo L]

at 23). The dissent’s interpretation of Jnnis implies that the Supreme

Court did not mean what it held in that case. We should not indulge

in such speculation, particularly since Innis was decided but a few

years ago.

People v Ferro

JASEN, J. (dissenting) :

The majority, inholding that the ‘‘placing in front of

the cell in which defendant was being detained furs stolen

from the murder victim’s residence constituted interroga-

tion’’, interprets the ‘‘likely to elicit’’ test (see Rhode

Island v Innis, 446 US 291, 303) too literally and mechani-

cally, untempered by the purposes to be served thereby.

Moreover, the majority fails to distinguish between the

differing policies involved and the ramifications resulting

where the suspect has sought the assistance of counsel—

which defendant did not do here—as opposed to merely

choosing initially to remain silent. (Cf, Brewer v Williams,

430 US 387, 397.) The proscriptions to be applied in each

instance are not the same.

Because I strongly believe that the mere placing of evi-

dence in front of defendant cannot be deemed an uncon-

stitutional interrogation in violation of the right to remain

silent, invoked upon the reading of Miranda warnings, I

respectfully dissent.

After Miranda warnings were given end defendant chose

not to answer questions, the police refrained from further

discussion with him. Defendant was not subjected to any

questioning. He was not subjected to any browbeating,

violence, threats or intimidation; no taunting, importuning,

harassment or cajoling; no promises, inducement, deceit or

trickery; no discomfort, humiliation, exhaustion or moral

or religious suasion ; nor, indeed, to any other form of com-

pulsion or coercion .(See Miranda v Arizona, 384 US 436,

448-458 ; ef, Oregon v Bradshaw, 77 LEd 2d 405, 413; Rhode

Island v Innis, supra, at p 299.) Rather, upon viewing the

23a

stolen goods obtained from his accomplice and simply

placed before him by the police, defendant insisted that he

be permitted to speak in exchange for prosecutorial lenien-

cy. When informed that nothing could be promised, but that

his explanation would be relayed to the District Attorney,

defendant volunteered his alibi which was the subject of

the suppression motion here in issue. Under these circum-

stances, I would hold that this police conduct did not con-

stitute an impermissible interrogation.

The constitutional privilege against compulsory self-

incrimination does not bar mere self-incrimination. It pro-

hibits only that which is genuinely compelled—i.e., the re-

sult of coercion or overbearing of the will of the accused.

(New York v Quarles, 52 USLW 4790, 4792; United States

v Washington, 431 US 181, 187-188; Michigan v Tucker, 417

US 433, 448.) Statements voluntarily made, regardless of

how damning, are not proscribed. (United States vy Wash-

ington, supra, at p 187; see also, Miranda v Arizona, supra,

at p 478.) Defendant does not claim, nor is there any in-

dication in the record, that he was actually compelled by

police conduct which in any way overcame his will to resist.

Moreover, the ‘‘likely to elicit’’ test invoked by the ma-

jority is not an explicit constitutional prescription man-

dating blind application in every case, regardless of the

resulting absurdity under particular facts. (Cf, North

Carolina v Butler, 441 US 369, 374-379; Michigan v Mosley,

423 US 96, 102-103.) Rather, it is an interpretive guideline

to assist in determining whether certain police activity is

the ‘‘functional equivalent of an interrogation’’. (Rhode

Island v Innis, supra, at p 302; see also, Brewer v Williams,

supra, at p 399.) In turn, this latter formulation is itself

a practical tool for applying the safeguards of Miranda,

24a

which themselves are not mandated by the Constitution

either. (Michigan v Tucker, supra, at p 444; Miranda v

Arizona, supra, at p 467.) Rather, even they are ‘‘ prophy-

lactic’’ (New York v Quarles, supra, at p 4792)—.e., ‘‘sug-

gested’’ ‘‘measures to insure that the right against com-

pulsory self-incrimination was protected.’’ (Michigan v

Tucker, supra, at p 444; see New York v Quarles, supra, at

p 4792.)

Ultimately, then, it is this right against compulsory

self-incrimination, and not simply some felicitous tests un-

informed by their policy purposes, which underlies Miranda

and its progeny. It is that right which is at issue here and

which should guide this court’s decision. In considering

the facts in this case, ‘‘[c]ertainly no one could contend

that the interrogation faced by defendant [—if it could rea-

sonably be labelled a‘ such—] bore any resemblance to the

historical practices at which the right against compulsory

self-incrimination was aimed.’’ (Michigan v Tucker, supra,

at p 444.)

While non-interrogatory statements of police officers

and even their non-verbal actions may in some instances

amount to unlawful interrogation of a suspect within the

meaning of Miranda (see Rhode Island v Innis, supra, at

p 299), nevertheless, not all ‘‘prompting’’ of any kind is

constitutionally proscribed. (Jd; Edwards v Arizona, 451

US 477, 488 [Burger, Ch.J., concurring].) Thus, while the

skillful employment of religious compulsion (Brewer v

Williams, supra) and deceitful confidences (United States

v Henry, 447 US 264) have been held to be impermissible

‘‘deliberate elicitations’’ (id, at p 270), the discussion of

child-safety concerns in a suspect’s presence (Rhode Island

v Innis, supra) and the advisement of the accused of addi-

fo cna cen ne one CAm

25a

tional charges being brought against him (Michigan v

Mosley, supra) have been upheld.

Indeed, there is no rigid rule constituting ‘‘a blanket

prohibition against the taking of voluntary statements or a

permanent immunity from further interrogation, regardless

of the circumstances, [for that] would transform the

Miranda safeguards into wholly irrational obstacles to

ligitimate police investigative activity, and deprive sus-

pects of an opportunity to make informed and intelligent

assesments of their interests.’’ (Jd, at p 102 [emphasis

added].) Where, for example, as here, there is a mere

disclosure of information to a suspect bearing on his prior

decision to remain silent—i.e., the government’s retrieving

of the stolen goods—there is nothing in the Federal or State

Constitution or case law barring that suspect from making

an informed and voluntary reassessment of his decision

and, thereafter, choosing to make a statement. (Jd, at p

102; see also, id, at pp 109-111 [ White, J., concurringj.)

To construe the mere placing of evidence before defend-

ant—little more than a simple disclosure of information

which might, in fact, contribute to an intelligent exercise

of his judgment—as an impermissible interrogation is to

attribute to that police conduct the qualities of coercion and

overbearing of defendant’s will which it certainly was not.

Such a construction, in my view, gives a tortured and un-

intended interpretation to the Miranda safeguards and the

underlying privilege against compulsory self-incrimina-

tion. Indeed, in numerous cases involving analogous police

conduct under circumstances similar to those presented

here, Federal appellate courts have refused to regard the

police actions as interrogations in violation of asserted

Miranda rights. (See, for example, the following, all of

26a

which were decided subsequent to the United States Su-

preme Court’s definition of ‘‘interrogation’’ in Innis:

United States v Guido, 704 F2d 675 [2d Cir]—suggestion

that defendant cooperate initiated by government agents,

not impermissible interrogation; United States v Criswell,

696 F2d 636 [8th Cir]—placing defendant in an office where

persuasive photographs were displayed, not impermissible

interrogation ; United States v Thierman, 678 F2d 1331 [9th

Cir]—conversation in defendant’s presence about the like-

lihood that the investigation would involve his family and

girlfriend, not impermissible interrogation; United States v

Hackley (636 Fd2 493 [D.C. Cir]—explanation of the in-

criminating evidence against defendant, not impermissible

interrogation.) (See also, the following which, although de-

cided prior to Innis, have since been sited with approval in

the aforecited cases: Umted States v Hart, 619 F2d 325

[4th Cir]—informing defendant that his cooperation would

be relayed to the United States Attorney, not impermissible

interrogation; United States v Wilson, 571 F2d 455 [9th

Cir]—informing defendant of the extensive evidence

against him, not impermissible interrogation; United States

v Davis, 527 F2d 1110 [9th Cir], cert den 425 US 953—

showing defendant a photograph of himself participating

in a bank robbery, not impermissible interrogation; United

States v Boston, 508 F2d 1171 [2d Cir], cert den 421 US 1001

—confronting defendant with the incriminating results of

the search of his apartment, not impermissible interroga-

tion; United States v Hodge, 487 F2d 945 [5thCirj]—expla-

nation of the incriminating evidence against defendant not

impermissible interrogation.) In accord with these deci-

sions, and mindful of the purposes to be served and evils to

be prevented by the Miranda safeguards and the privilege

27a

against compulsory self-incrimination, I believe that the

police conduct in this case cannot fairly be deemed a pro-

seribed interrogation.

Finally, the majority’s rigid application of the ‘‘likely

to elicit’’ test ignores the significant distinctions between

the right to remain silent and the right to assistance of

counsel—only the former of which did defendant choose to

exercise. Although he was advised fully in accordance with

Miranda, defendant did not ask for counsel, invoke the right

thereto, nor in any form indicate that he was awaiting

counsel’s arrival or assistance. In fact, he repeatedly re-

quested to speak with the District Attorney despite the ab-

sence of an attorney.

Defendant simply exercised his right to remain silent

upon receiving the Miranda warnings, thereby foreclosing

any further questioning until such time as he should volun-

tarily and freely decide otherwise. Whereas ‘‘additional

safeguards are necessary when the accused asks for coun-

sel’’ and, therefore, ‘‘interrogation [must] cease until an

attorney [is] present’? (Edwards v Arizona, supra, at pp

484, 485), that is true ‘‘only if the individual [has] stated

that he wanted counsel’’ (id, at p 485 [emphasis added].)

(See also, People v Cunningham, 49 NY2d 203; People v

Grant, 45 NY2d 366.) Otherwise, ‘‘the accused may him-

self validly waive his rights and respond to interrogation.’’

(Edwards v Arizona, supra, at p 484 [emphasis added].)

The ‘‘policies underlying the two constitutional pro-

tections [right to assistance of counsel and privilege against

compulsory self-incrimination] are quite distinct’’ (Rhode

Island v Innis, supra, at p 300, n.4) and, consequently, so,

too, are the appropriate procedural safeguards. With re-

gard to the right to counsel, ‘‘[i]f the individual states

28a

that he wants an attorney, the interrogation must cease

until an attorney is present.’’ (Miranda v Arizona, supra,

at p 474 [emphasis added].) However, where an individual

simply indicates his desire to remain silent, the situation

is different.. There is no ‘‘per se proscription of indefinite

duration upon any further questioning.’’ (Michigan v

Mosley, supra, at 102; see also, People v Cunningham, su-

pra, at p 375.) Rather, as long as the individual’s ‘‘right

to cut off questioning’’ is ‘‘scrupulously honored’’ (Miran-

da v Arizona, supra, at pp 474, 479 [emphasis added]),

he may at any time make an ‘‘informed and intelligent’’ re-

asssesment of his interests and permit questioning to re-

sume. (Michigan v Mosley, supra, at pp 102, 104.)

In deciding that the entirely innocuous, non-verbal and

non-coercive police conduct in this case amounted to uncon-

stitutional interrogation by mechanically applying the

‘‘likely to elicit’’ test, the majority fails utterly to distin-

guish ‘‘between the procedural safeguards triggered by a

request to remain silent and a request for an attorney.”’

(Michigan v Mosley, supra, at p 104, n.10, explaining

Miranda v Arizona, supra, at p 474.) That distinction was

made clear in Miranda and has been repeatedly recognized

in its progeny. (See e.g., Oregon v Bradshaw, 77 L Ed 405,

411 [Rehnquist, J., opizion of the Court], 416 [Powell, J.,

concurring], 417 [Marshall, J., dissenting]; Edwards v

Arizona, 451 US 477, supra, at pp 484-485 [ White, J., opin-

ion of the Court], 491, n.1 [ Powell, J., concurring]; United

States v Henry, 447 US 264, 272-273 [Burger, Ch.J., opinion

of the Court], 282 n.6 [Blackmun, J., dissenting], 295-296

[Rehnguist, J., dissenting]; Rhode Island v Innis, 446 US

291, supra, at p 300, n.4 [Stewart, J., opinion of the Court] ;

Brewer v Williams, 430 US 387, supra, at pp 397-398 [Stew-

29a

art, J., opinion of the Court], 424-426 [Burger, Ch.J., dis-

senting], 43€-437, n.6 [White, J., dissenting]; Michigan v

Mosley, 423 US 96, 101-104, and nn.7 and 10 [Stewart, J.,

opinion of the Court], 109-110 [White, J., concurring].)

Likewise, this court has acknowledged the same distinction.

(See People v Grant, supra, at p 375; People v Cunningham,

supra, at p 207.)

Here, the defendant expressed no view nor gave the

slightest indication that he was incompetent to decide

whether to permit a resumption of questioning without legal

advice. (Cf, Michigan vy Mosley, supra, at p 110, n.2

[ White, J., concurring].) Rather, he simply asserted his

desire not to speak with the police at the outset, and, sub-

sequently, decided, without any coercion of any sort, to

change his mind in light of the incriminating evidence

placed before him. In my view, the prophylactic safeguards

of Miranda and its progeny do not preclude an individual

from thus making an informed and voluntary reassessment

of his interests, and do not proscribe, as an impermissible

interrogation, the kind of non-verbal, non-coercive, non-

threatening, and even non-bothersome police conduct at

issue in this case.

Accordingly, I would affirm the refusal of both courts

below to suppress the statements volunteered by defendant.

* * *

Order reversed, defendant’s motion to suppress his state-

ments made subsequent to his viewing of the furs granted

and a new trial ordered. Opinion by Judge Meyer in which

Chief Judge Cooke and Judges Jones, Simons and Kaye

concur. Judge Jasen dissents and votes to affirm in an

opinion. Judge Wachtler took no part.

Decided October 25, 1984