Saturday, November 14, 2009

Consent to What?

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

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