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DeBour Criteria Met in Street Encounter Leading to Arrest; Statements Tainted by Miranda Violations Did Not Preclude Admission of Statement Made Seven Hours Later

In a full-fledged opinion by Justice Renwick, the First Department upheld the denial of defendant’s suppression motions.  After hearing gun shots police officers approached the defendant. After defendant answered a couple of questions he “began to place his hand in his back pocket.”  At that point, the officer grabbed defendant’s arm and told defendant he wanted to frisk the defendant before allowing him to reach in his pockets.  As the officer began to frisk the defendant, the defendant ran and was brought the ground.  A firearm, still warm, was taken from the defendant’s back pocket.   Written statements subsequently given by the defendant were suppressed by the trial court because of a Miranda violation.  A videotaped statement, made seven hours after the tainted written statements, was deemed admissible:

Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” … .  People v Davis, 2012 NY Slip Op 02337, 6129, 9270, 1st Dept 4-4-13

 

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