Tuesday, June 14, 2011

In People v Lopez (16 NY3d 375 [2/22/11]) the Court of Appeals held that an
officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant's representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

But there is a limit to that holding- a custodial conversation with a suspect brought from his jail cell who was actually known to be represented by counsel did not violate the right to counsel where the officer

did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response (see e.g. People v Ferro, 63 NY2d 316, 321 [1984], cert denied 472 US 1007 [1985]). The DNA that defendant voluntarily deposited on the cigarette butt was not a "response" or "statement" subject to exclusion under New York's right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed "the contents of defendant's mind" (People v Havrish, 8 NY3d 389, 395 [2007], cert denied 552 US 886 [2007]).

Smoking is bad for your health and your freedom. If one needs further convincing about the relationship between smoking and freedom , consider the case of Lerio Guerrero, who also was arrested based his DNA on the butt of a cigarette he had been smoking. As described in the New York Times (see), this demonstrates "a heretofore unspoken peril of smoking."

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