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Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.”  The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:

Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14

 

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