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IN THE Supreme Court of the United States THE STATE OF NEW YORK, Petitioner, v. JERMAINE DUNBAR, Respondent. PETITION FOR A WRIT OF CERTIORARI On Petition For A Writ of Certiorari to the New York State Court of Appeals No. _______ RICHARD A. BROWN District Attorney Queens County Counsel for Petitioner JOHN M. RYAN JAMES C. QUINN ROBERT J. MASTERS EDWARD D. SASLAW Assistant District Attorneys Of Counsel 125-01 Queens Boulevard Kew Gardens, New York 11415 718-286-6100 DONNA ALDEA* Special Counsel for Petitioner, Pro Bono BARKET, MARION, EPSTEIN & KEARON, LLP 666 Old Country Road, Suite 700 Garden City, New York 11530 516-745-1500 >> >> January 26, 2015 *Counsel of Record
Transcript
  • IN THE

    Supreme Court of the United StatesTHE STATE OF NEW YORK,

    Petitioner,v.

    JERMAINE DUNBAR,Respondent.

    PETITION FOR A WRIT OF CERTIORARI

    On Petition For A Writ of Certiorari to theNew York State Court of Appeals

    No. _______

    RICHARD A. BROWNDistrict AttorneyQueens County

    Counsel for PetitionerJOHN M. RYANJAMES C. QUINNROBERT J. MASTERSEDWARD D. SASLAW

    Assistant District AttorneysOf Counsel

    125-01 Queens BoulevardKew Gardens, New York 11415718-286-6100

    DONNA ALDEA*Special Counsel for Petitioner, Pro Bono

    BARKET, MARION, EPSTEIN& KEARON, LLP

    666 Old Country Road, Suite 700Garden City, New York 11530516-745-1500

    >> >>

    January 26, 2015

    *Counsel of Record

  • i

    QUESTION PRESENTED

    Whether certiorari should be granted to correct theNew York Court of Appeals’ unprecedented expansionof Miranda v. Arizona’s automatic exclusionary rule,and its fundamental misunderstanding of this Court’sdecision in Missouri v. Seibert, as requiring automaticsuppression of defendant’s incriminating statement,made only after full advisement and waiver of Mirandawarnings, solely because, just prior to the warnings,investigators read defendant a brief, standardizedintroduction -- which asked no questions and elicitedno responses -- and which all parties agreed did notimpair the voluntariness of the waiver or statement.

  • ii

    TABLE OF CONTENTS

    Page No.QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

    TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

    OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

    JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

    CONSTITUTIONAL PROVISION INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

    STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

    REASONS FOR GRANTING THE WRIT . . . . . . . 14

    I. THE NEW YORK COURT OF APPEALSFUNDAMENTALLY MISCONSTRUED ANDIMPERMISSIBLY REDEFINED MIRANDA’SREQUIREMENT THAT A SUSPECT BE‘EFFECTIVELY APPRISED’ OF HISRIGHTS, RESULTING IN A VAST ANDU N D E S I R A B L E E X P A N S I O N O FMIRANDA’S AUTOMATIC EXCLUSIONARYRULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

  • iii

    A. The Court of Appeals’ Finding ofa Lack of Effective Advisement ofMiranda Rights is Contrary toSupreme Court Precedent WhereDefendant Was Fully Apprised ofHis Miranda Rights Prior toCustodial Interrogation andBefore Making Any Statementsto Law Enforcement . . . . . . . . . . . . . . . . 20

    B. The Standardized Pre-MirandaRemarks, Which, at Worst,Implied to Defendant that thereMight be a Benefit to Speaking toInvestigators, did not Contradictthe Warnings or UndermineThem so as to Prevent Adequateand Effective Advisement. . . . . . . . . . . . 24

    C. The Analysis is No Different as aResult of the Pre-MirandaComments Being StandardizedRather than Ad Hoc . . . . . . . . . . . . . . . . 31

    D. The Due Process Question ofWhether the Standardized Pre-Miranda Remarks Vitiated theKnowing and Voluntary Natureof Defendant’s Waiver andStatement was Conceded Below,and is, in any Event, Not aConcern Under the Facts of ThisCase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

  • iv

    CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

    APPENDIX

    Decision of the New York Court of Appeals, dated October 28, 2014 . . . . . . . . . . . . . . . . . 1a

    Decision of the New York Appellate Division,Second Dept., dated Jan. 30, 2013 . . . . . . . 21a

    Decision of the New York State Supreme Court,

    dated Feb. 23, 2010 . . . . . . . . . . . . . . . . . . 51a

    Excerpted Transcript of Suppression Hearing, dated Dec. 18, 2009 and Jan. 5, 2010 . . . . 63a

    Transcription of Videotaped Pre-Arraignment Interview, conducted on April 24, 2009 . . . 85a

  • v

    TABLE OF AUTHORITIES

    Page No.Cases

    Bobby v. Dixon, __U.S.__; 132 S. Ct. 26 (2011) . . . 23

    California v. Prysock, 453 U.S. 355 (1981) . . . . . . . 21

    Collins v. Brierly, 492 F.2d 735 (3d Cir. 1974) 30n.5

    Colorado v. Connelly, 479 U.S. 157 (1986) . . . . . . . 37

    Colorado v. Spring, 479 U.S. 564 (1987) . . . . . . . . . . . . . . . . . . . . . 17, 30n.5, 37

    Dickerson v. United States, 530 U.S. 428 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

    Duckworth v. Eagan, 492 U.S. 195 (1989) . . . . . . 21

    Fare v. Michael C., 442 U.S. 707 (1979) . . . . . 17, 32

    Florida v. Powell, 559 U.S. 50 (2010) . . . . . . . . . . . . . . . . . . . . . . 1, 13, 21, 25

    Illinois v. Perkins, 496 U.S. 292 (1990) . . . . . . . . . 35

    Maryland v. Shatzer, 559 U.S. 98 (2010) . . . . . . . 29

    McNeil v. Wisconsin, 501 U.S. 171 (1991) . . . . . . . 31

  • vi

    Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . . . . . . . 12, 16, 17, 23

    Missouri v. Seibert, 542 U.S. 600 (2004) . . . . passim

    Moran v. Burbine, 475 U.S. 412 (1986) . . . . . . 17, 33

    New York v. Quarles, 467 U.S. 649 (1984) . . . 23, 34

    Oregon v. Elstad, 470 U.S. 298 (1985) . . . . . . . . . . 35

    People v. Dunbar, __ N.Y.3d __; 2014 N.Y. Slip. Op. 07293 (2014) . . . . . passim

    People v. Dunbar, 104 A.D.3d 198; 958 N.Y.S.2d 764 (2d Dept. 2013) . . . 1, 10, 32

    People v. Lloyd-Douglas, __ N.Y.3d __; 2014 N.Y. Slip. Op.07293 (2014) . . . . . . 12n.2

    Rhode Island v. Innis, 446 U.S. 291 (1980) . . . 20n.3

    Stansbury v. California, 511 U.S. 318 (1994) . . . . 33

    United States v. Leon, 468 U.S. 897 (1984) . . . . . . 34

    Whren v. United States, 517 U.S. 806 (1996) . . . . 34

  • vii

    Constitutional Provisions, Statutes, and Rules

    U.S. CONST. amend V . . . . . . . . . . . . . . . . . . . . . . . . 2

    28 U.S.C. §1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

    Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

    Treatises and Articles

    William J. Stuntz, Miranda’s Mistake, 99 Mich. L. Rev. 975 (2001) . . . . . . . . . . . . . 29

  • OPINIONS BELOW

    The opinion of the New York Court of Appealsaffirming the Appellate Division’s decision is publishedat People v. Dunbar, __ N.Y.3d __; 2014 N.Y.Slip.Op.07293 (2014). The decision is reprinted in theappendix of this petition at 1a-20a.

    The decision of the Appellate Division reversingdefendant’s judgment of conviction is reported atPeople v. Dunbar, 104 A.D.3d 198; 958 N.Y.S.2d 764(2d Dept. 2013). The decision is reprinted in theappendix of this petition at 21a-50a.

    The decision of the New York State SupremeCourt denying defendant’s suppression motion isunreported. It is reprinted in the appendix of thispetition at 51a-62a.

    JURISDICTION

    This petition for certiorari is filed within 90 daysof the decision of the New York Court of Appeals, andis therefore timely. Sup.Ct.R. 13.1. Petitioner invokesthis Court’s jurisdiction under 28 U.S.C. §1257(a).

    The New York Court of Appeals based itsdecision solely on federal constitutional law, asdetermined by this Court. It did not cite or invoke anystate constitutional provisions or state cases. Thus,this case squarely and solely presents a federalconstitutional question. See Florida v. Powell, 559 U.S.50 (2010).

  • 2

    CONSTITUTIONALPROVISION INVOLVED

    The Fifth Amendment to the United StatesConstitution states, in pertinent part:

    No person ... shall be compelled in anycriminal case to be a witness againsthimself....

    STATEMENT OF THE CASE

    On April 23, 2009, defendant, a persistentviolent felony offender, entered Rapid Multi Service,approached the cashier’s plexiglass enclosure, and thenpulled out a gun, saying, “Damn, Bitch, give me themoney or I’ll kill you.” The cashier threw herself to theground, called 911, and frantically pressed the office’sdistress button to signal for help, as defendant kickedand pounded on the plexiglass door.

    Unable to get into the office, defendantultimately fled in a black livery car that was waitingoutside for him. He was apprehended less than fiveminutes later, when police spotted the getaway car,and was subsequently identified by the cashier in ashow-up almost immediately thereafter. From thefloor in the backseat of the car, police recovered the hatand striped shirt that defendant wore during thecrime, and the imitation pistol he had wielded. Subsequently, police recovered the video surveillancetapes from Rapid Multi Service, which showeddefendant and the cashier during the crime.

  • 3

    Defendant was arrested and brought to CentralBooking, Queens (“CBQ”) for processing. While there,prior to the filing of the felony complaint and beforeattachment of his Sixth Amendment right to counsel,defendant, who was not represented by counsel, wasbrought into an interview room to meet with anAssistant District Attorney and a Detective pursuantto a pre-arraignment interview program used by theQueens County District Attorney’s Office since 2007 inthousands of cases. The entire interaction, from themoment defendant entered the room until he left, wasvideotaped;1 and defendant was so informed.

    As shown on the video, defendant was read avery brief, standardized, introductory statement -- containing no questions, and eliciting no responses --which was immediately followed by a complete readingof his Miranda rights, which defendant acknowledgedand waived.

    Specifically, the interviewers began by seatingdefendant in the room, telling him that he was in theQueens District Attorney’s interview room in CentralBooking, and introducing themselves as a Detectiveand an Assistant District Attorney (86a). They theninformed defendant of the charges he would be facingwhen he went to court, the date and time of theincident at issue, and that he would be read his rights

    1A DVD of the videotaped interview, which was admitted intoevidence at the suppression hearing and trial, will be furnished tothe Court upon request, as it could not be annexed to this petitionas per the instructions of the Clerk’s Office. A full transcriptionof the interview is attached, for this Court’s convenience, at 85a-103a.

  • 4

    in a few minutes, after which he “will be given anopportunity to explain what [he] did and whathappened at that date, time, and place” (87a). Theinterviewers specified the type of information theywould want him to provide if he decided to speak withthem, and again highlighted that he did not have todecide if he wanted to speak with them until after heheard his rights:

    If you have an alibi, give me asmuch information as you can,including the names of anypeople you were with.

    If your version of what happenedis different from what we’ve beentold, this is your opportunity totell us your story.

    If there is something you need usto investigate about this case,you have to tell us now so we canlook into it.

    Even if you have already spokento someone else, you do not haveto talk to us.

    This will be your onlyopportunity to speak with usbefore you go to court on thesecharges.

  • 5

    This entire interview is beingrecorded with both video andsound.

    I am going to read you yourrights now, and then you candecide if you want to speak withus, okay.

    (87a-88a). Defendant was then immediately advised ofhis Miranda rights, as well as his right to a promptarraignment, at which he would have an attorneyappointed, was asked if he understood each rightindividually, and replied that he did. He was alsoasked if, having heard his rights, he wished to answerquestions, and he replied that he did:

    DETECTIVE: You have the rightto be arraigned without unduedelay. That is, to be broughtbefore a judge, to be advised ofthe charges against you, to havean attorney assigned to orappointed for you, and to havethe question of bail decided bythe court. Do you understand?

    DEFENDANT: Yes.

    DETECTIVE: You have the rightto remain silent and refuse toanswer questions. Do youunderstand?

  • 6

    DEFENDANT: Yup.

    DETECTIVE: Anything you dosay may be used against you in acourt of law. Do you understand?

    DEFENDANT: Yes.

    DETECTIVE: You have the rightto consult an attorney beforespeaking to me or to the policeand have an attorney presentduring any questioning now or inthe future. Do you understand?

    DEFENDANT: Yes.

    DETECTIVE: If you cannotafford an attorney, one will beprovided to you without cost. Doyou understand?

    DEFENDANT: Yes.

    DETECTIVE: If you do not havean attorney available, you havethe right to remain silent untilyou have had an opportunity toconsult with one. Do youunderstand?

    DEFENDANT: Yes.

  • 7

    DETECTIVE: Now that I haveadvised you of your rights areyou willing to answer questions?

    DEFENDANT: Yes.

    (88a-89a).

    During the eight-minute interview that followed,defendant admitted that he had attempted to rob theRapid Multi Services store by threatening the cashierwith an imitation pistol, but claimed that he wasacting with others, including the getaway driver, andthat he felt he had been forced to do it by hisaccomplices. Several times throughout the interview,defendant indicated that he was speaking to theinterviewers because he wanted to work out a deal, orcooperation agreement, whereby he would offer theState evidence implicating others in this and unrelatedcrimes (94a-95a, 101a, 103a). But the interviewersrepeatedly rejected his attempts to do this, telling himthat he could broach this subject with his attorneyafter arraignment, and that this was not the purposeof the interview (95a). Frustrated by this rebuff,defendant asked how, then, the interview was helpinghim, and was told that it could be beneficial to him ifhe had an alibi or something he wanted theinterviewers to investigate (98a). Defendantacknowledged that he could not say it wasn’t him, andthen continued answering questions (99a). As theinterview began to wrap up, defendant, apparently stillpressing the attempt to arrange a deal as a cooperator,asked if he would be talking to “the DA” after he was

  • 8

    done with the interview, but was told that the nextperson he would be speaking to was his lawyer (100a).

    Defendant was subsequently charged with Attempted Robbery in the Second Degree and relatedoffenses.

    The Suppression Hearing

    Prior to trial, defendant moved to suppress hisvideotaped CBQ statement on the grounds, inter alia,that the investigators’ standardized pre-Mirandaremarks invalidated his waiver. A hearing was held,at which defendant did not testify.

    On February 23, 2010, New York Supreme Courtdenied defendant’s motion to suppress his CBQstatement (51a-62a). The court rejected, asunsupported by the record, defendant’s contention thatthe phrase “if there is anything you want us toinvestigate you must tell us now” misled defendantinto believing “that this would be his only opportunityto tell his story and that he had no choice but to do itnow” (60a). Specifically, the court highlighted thatmany times during the interview, defendant was toldthat certain subjects would be properly addressed at alater time (id.). The court also noted that even if thatstatement was untrue, because, “while not frequent,there are occasions where the District Attorneyinvestigates claims by the defendant while anindictment is pending” (61a), this would not rise to thelevel of “deception ... so fundamentally unfair as todeny due process” under the totality of thecircumstances, where defendant was informed that the

  • 9

    entire interview would be videotaped, the length of theinterview -- including the standardized remarks andMiranda warnings -- was a mere eleven minutes,defendant was informed why he was being questionedat that time, and defendant clearly understood thewarnings and questions put to him by the interviewers. Thus, under all of the facts and circumstances of thiscase, the court concluded that defendant had beenproperly apprised of his Miranda rights, knowingly andvoluntarily waived them prior to custodialinterrogation, and that his statement was voluntary(61a). Thus, the court denied defendant’s motion tosuppress his videotaped statement (62a).

    The Trial and Sentence

    Defendant proceeded to a jury trial, at which thevideotaped CBQ interview was admitted into evidenceand played for the jury. At the conclusion of the trial,defendant was found guilty of attempted robbery andcriminal mischief. He was sentenced as a persistentviolent felony offender to an indeterminate prison termof from seventeen years to life imprisonment.Defendant is currently incarcerated pursuant to thisjudgment.

    The Appeal to the Appellate Division

    Defendant appealed from his judgment ofconviction, arguing, inter alia, that the prosecutor’sstandardized remarks just prior to the reading of theMiranda rights contradicted the warnings, invalidatingthe waiver and rendering defendant’s statementinvoluntary. The State filed an opposing brief, arguing

  • 10

    that defendant was properly advised of, and validlywaived, his Miranda rights prior to custodialinterrogation and before making any statements, andthat, under the totality of the circumstances, hiswaiver and statement were uncoerced and completelyvoluntary, as clearly apparent from the videotapeadmitted into evidence at the suppression hearing andtrial.

    On January 30, 2013, the Appellate Divisionreversed defendant’s judgment of conviction, holdingthat the brief remarks made by interviewers prior to administering Miranda warnings “muddled” Mirandaand, thus, rendered the warnings ineffective as amatter of law, requiring automatic suppression (34a). In this regard, the court rejected the State’scontentions that the impact of the pre-Mirandaremarks was, at most, related to the voluntariness ofthe waiver, and had to be assessed on a case-by-casebasis, taking into account the individual experience ofeach suspect and the totality of the circumstances. According to the court, such case-by-casedetermination, while relevant to the voluntariness ofthe waiver, was not relevant to the threshold questionof whether Miranda warnings were properlyadministered in the first place (38a-39a).

    The Appeal to the Court of Appeals

    The State subsequently sought and obtainedleave to appeal to the New York Court of Appeals,arguing that Miranda had been complied with wherethe rights were fully administered and waived prior toany interrogation. With respect to the impact of the

  • 11

    interviewers’ standardized pre-Miranda remarks, theState argued that the Appellate Division had erred indeeming them to have impacted the “effectiveconveyance” of Miranda, and, thus, requiringautomatic suppression as a matter of law. Instead, theState argued, the impact of these remarks could, atmost, bear on the separate question of whether thewaiver was knowing and voluntary under the totalityof the circumstances; and, even taking defendant’sextreme view of their impact, the remarks could notrise to the level of coercion or deception so severe as toviolate due process under the facts of this case.

    In response, defendant countered that thevoluntariness of the waiver and statement wereirrelevant, as was defendant’s lengthy criminalbackground and likely understanding of his rights; forthe preamble was the “anti-Miranda,” whichcontravened the warnings, vitiated their effectiveconveyance, and, thus, would require automaticsuppression in every case in which they had beengiven, regardless of individual circumstances.

    A divided Court of Appeals affirmed the order ofthe Appellate Division, holding that “the scriptedpreface or ‘preamble’ to the Miranda warnings that,among other things, informed the suspect that ‘this isyour opportunity to tell us your story,’ and ‘your onlyopportunity’ to do so before going before a judge ... undermined the subsequently-communicated Mirandawarnings to the extent that [defendant was] not“‘adequately and effectively’ advised of the choice [theFifth Amendment] guarantees’” against self-incrimination.” Dunbar at 2a-3a, quoting Missouri v.

  • 12

    Seibert, 542 U.S. 600, 611 (2004) and Miranda v.Arizona, 384 U.S. 436, 467 (1966).2 Thus, the majorityheld that it was irrelevant that the suspect’s waivermay have been valid and his statement knowing,intelligent, and voluntary; for “the issue ... is notwhether, under the totality of the circumstances, thesedefendants’ waivers were valid, but rather whether ornot they were ever ‘clearly informed’ of their Mirandarights in the first place, as is constitutionallyrequired.” Dunbar at 15a, quoting Miranda, 384 U.S.at 467. Purportedly finding authority for its holding inthis Court’s decision in Seibert, the majority concludedthat the preamble rendered the Miranda warningsineffective because “a reasonable person in thesedefendants’ shoes might well have concluded, afterhaving listened to the preamble, that it was in his bestinterest to get out his side of the story -- fast” (15a).

    In a dissenting opinion, Judge Robert S. Smithreasoned that the majority had misconstrued Miranda;for, “[t]he purpose of Miranda is to be sure thatsuspects are informed of their rights and understandthem. That purpose is not undermined when police orprosecutors persuade a properly-informed suspect towaive his or her rights” (16a). Highlighting that it was“undisputed that ... defendant[] received properMiranda warnings and agreed to answer questions,”Judge Smith concluded that the preamble did notcontradict Miranda, and, when it was considered withthe warnings, “viewed as a whole, what was said to ...

    2 The case was decided together with People v. Lloyd Douglas,__ N.Y.3d __; 2014 N.Y.Slip.Op. 07293 (2014), from which the Statealso seeks certiorari in a separate petition.

  • 13

    defendant[] before questioning began ‘reasonablyconveyed ... his rights as required by Miranda.’”Dunbar at 17a-18a, quoting Florida v. Powell, 559 U.S.at 60. Pointedly, Judge Smith noted that even underthe majority’s view of the impact of the preamble, therewould be no Miranda violation:

    The majority’s real complaint with thepreamble is not that it is likely to confusea suspect about what his rights are, butthat it might persuade him to waivethem. As the majority says, ‘a reasonableperson in these defendants’ shoes mightwell have concluded, after having listenedto the preamble, that it was in his bestinterest to get out his side of the story –fast’ (majority op at 15). Indeed hemight, but why should that distress us?.... The preamble seeks to exploit thenatural impulse of any guilty defendantto think he can talk his way out oftrouble, by persuading police orprosecutors either that he is innocent orthat he deserves leniency. But Mirandadoes not require law enforcement officialsto repress, or forbid them to encourage,the tendency of criminals to talk toomuch. That tendency greatly contributesto the efficiency of law enforcement;many more crimes would go unpunishedif it did not exist.

  • 14

    (18a-19a). Thus, Judge Smith found no basis forsuppression, and voted to reverse the AppellateDivision’s decision.

    REASONS FOR GRANTING THE WRIT

    Where Miranda warnings are fully administeredand waived prior to any custodial interrogation, andwhere, taking all surrounding circumstances intoaccount, a suspect’s waiver and statement is knowingand voluntary, there can be no basis for suppression.

    Here, it is undisputed that Miranda warningswere administered, acknowledged, and waived prior toany interrogation and prior to defendant making anystatement. Here, it is undisputed that the Mirandawarnings, read to defendant from a standard formwere complete, fully apprising him of all of his rights. Thus, under these facts, the New York Court ofAppeals was bound to conclude that, as a matter offederal constitutional law, Miranda was properly andeffectively conveyed. And, as the voluntariness ofdefendant’s waiver and statement were not in issue,suppression was not just unwarranted, but prohibited.

    Nevertheless, because just prior toadministering Miranda warnings, investigators readthe suspect a short set of standardized, non-interrogatory remarks, which, according to the Courtof Appeals’ majority, operated to advise the suspectthat if he chose to invoke his rights, he might forgo thebenefit of speaking to investigators and having his caseinvestigated by them prior to arraignment, the

  • 15

    majority concluded that Miranda warnings were noteffectively conveyed.

    In so holding, the New York Court of Appealscontravened this Court’s precedent, and misconstruedMiranda as affirmatively preventing law enforcement,as a matter of law, from apprising a suspect of thebenefits that he might garner from speaking to them,as well as the risks. Contrary to the majority’s view,however, and as correctly reasoned by the dissent,Miranda only requires the State to advise a suspect ofhis rights; it does not prevent law enforcement fromattempting, by means that do not implicate due processby rising to the level of coercion, to try to convince himto waive those rights. Thus, Miranda was not violatedin this case, and the Court of Appeals erred as a matterof law in holding otherwise. Certiorari should begranted to correct New York State’s highest court’smisunderstanding of the basic core of Miranda’spurpose, and, thus, to prevent the misapplication ofthis fundamental and far-reaching principle ininnumerable cases to follow.

  • 16

    I. THE NEW YORK COURT OF APPEALSFUNDAMENTALLY MISCONSTRUED ANDIMPERMISSIBLY REDEFINED MIRANDA’SREQUIREMENT THAT A SUSPECT BE‘EFFECTIVELY APPRISED’ OF HIS RIGHTS,RESULTING IN A VAST AND UNDESIRABLEEXPANSION OF MIRANDA’S AUTOMATICEXCLUSIONARY RULE.

    Nearly fifty years ago, this Court held inMiranda v. Arizona that “without proper safeguards,the process of in-custody interrogation of personssuspected or accused of crime contains inherentlycompelling pressures which work to undermine theindividual’s will to resist and to compel him to speakwhere he would not otherwise do so freely. In order tocombat these pressures and to permit a fullopportunity to exercise the privilege against self-incrimination, the accused must be adequately andeffectively apprised of his rights.” 384 U.S. at 467. While this Court did not require that any particularlitany be used, it mandated that, at minimum, asuspect must be advised, prior to custodialinterrogation, (1) of his right to remain silent, (2) thatanything he says may be used against him, (3) that hehas the right to the presence of an attorney, and (4)that an attorney will be provided if he cannot affordone. Id. at 467-73.

    The fundamental requirement that suspects beapprised of their rights, Miranda explained, was notsubject to the traditional totality-of-the-circumstancesanalysis previously used to ascertain whether astatement was voluntarily made. It was, rather, a

  • 17

    bright-line rule; a constitutional minimum, derivedlargely from the Fifth Amendment rather than the DueProcess Clause, that did not depend on a suspect’sindividual circumstances or actual understanding. SeeMiranda, 384 U.S. at 444, 446 (“The Fifth Amendmentprivilege is so fundamental to our system ofconstitutional rule and the expedient of giving anadequate warning as to the availability of the privilegeso simple, we will not pause to inquire in individualcases whether the defendant was aware of his rightswithout a warning being given”); see also Dickerson v.United States, 530 U.S. 428 (2000) (reaffirming theFifth Amendment as the constitutional basis forMiranda).

    Miranda did not, however, wholly supplanttraditional voluntariness analysis; instead, thatanalysis remained applicable to determine the separatequestion of whether, notwithstanding proper Mirandawarnings, law enforcement procured a suspect’s waiveror statement by the use of violence, coercion,intimidation, or deception so severe as to overbear thesuspect’s will and, effectively, render his waiver invalidand his statement involuntary. See Colorado v. Spring,479 U.S. 564 (1987) (“In order to be valid, a suspect’swaiver of his Miranda rights must be both voluntary,in the sense that it is “the product of free anddeliberate choice” and knowing, in that it is made with“full awareness both of the nature of the right beingabandoned and the consequences of the decision toabandon it”); see also Moran v. Burbine, 475 U.S. 412,421 (1986); Fare v. Michael C., 442 U.S. 707, 726-727(1979) (The defendant was “not worn down by improperinterrogation tactics or lengthy questioning or by

  • 18

    trickery or deceit. . . . The officers did not intimidate orthreaten respondent in any way”). Questions relatingto whether the waiver and statement were knowing,intelligent, and voluntary -- unlike the thresholddetermination of whether Miranda warnings wereproperly and effectively conveyed as a matter of law -- depend on an evaluation of the totality of thecircumstances, including the length of theinterrogation, the use of any threats or physical force,the interviewer’s tone, the suspect’s experience withthe criminal justice system, the suspect’s emotionalstate, any intoxication or drug addiction, and anylanguage or communication problems. Id. at 707(courts must look to the “totality of the circumstancessurrounding the interrogation to ascertain whether theaccused in fact knowingly and voluntarily decided toforgo his rights to remain silent and to have counsel”).

    Here, as discussed below, it is undisputed thatdefendant was read his Miranda rights, acknowledged,and waived them prior to any custodial interrogation. And -- as was conceded by defendant, compelled by therecord, and recognized by the state courts at everylevel -- the totality of the circumstances demonstratedthat defendant’s waiver and statement were knowingand voluntary. Thus, under these circumstances, therecan be no basis for suppression.

    Troubled by what it perceived as the use of anunfair, systematic tactic designed to encouragesuspects to speak, rather than to affirmativelydissuade them from doing so, but clearly unable tosuppress on traditional voluntariness grounds, theCourt of Appeals held that the District Attorney’s

  • 19

    standardized pre-Miranda remarks -- used inthousands of cases over the course of several years --were contrary to the Miranda rights themselves, and,thus, prevented “effective conveyance” of the warnings. Thus, the majority reasoned, case-by-case analysis wasnot needed; the totality of the circumstancesconfronting the suspect were inapplicable; and thesuspect’s actual -- and demonstrated -- understandingof his rights and voluntary decision to waive them wasirrelevant. For, if the basic Miranda rights were notconveyed, then suppression would be automaticallymandated as a matter of law in each and every case inwhich these standardized remarks were read.

    To reach this result, the Court of Appealsfundamentally, dangerously, and dramaticallymisconstrued Miranda’s core holding as a prohibitiverule, forbidding law enforcement from seeking toencourage a suspect to voluntarily choose to speak,rather than a prophylactic rule, concerned only withensuring that the suspect knows and understands hisrights before he decides whether to exercise them. Inso doing, it directly contravened this Court’s precedentrepeatedly explaining Miranda’s purpose. It failed toproperly apply this Court’s case law defining theelements required for effective conveyance of thewarnings and explaining how to gauge this. And itvastly expanded the reach of Miranda’s rule ofautomatic exclusion in a manner that is neithersupported, permitted, nor desired according to thisCourt’s clear precedent. Certiorari should be grantedto clarify Miranda’s core holding and to properly limitits reach.

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    A. The Court of Appeals’ Finding of a Lack ofEffective Advisement of Miranda Rights isContrary to Supreme Court Precedent WhereDefendant Was Fully Apprised of His MirandaRights Prior to Custodial Interrogation andBefore Making Any Statements to LawEnforcement.

    Fundamentally, the Court of Appeals’ centraljustification for applying an automatic suppressionrule founded on the lack of “effective advisement” ofMiranda is flawed because, unlike in the cases it cited,where there was some omission or deviation from thefour basic advisements that Miranda requires, herethere is no question that defendant did receive acomplete and clear advisement of all his rights beforeany interrogation commenced3 and any statementswere made: he was read the standard Miranda rightsused in New York City for decades, and repeatedlyapproved by the courts, from a pre-printed form,verbatim, with no deviation whatsoever, and heexpressly acknowledged and waived each of those

    3The pre-Miranda remarks read to defendant in Central Bookingdo not, themselves, constitute interrogation or its functionalequivalent as they ask no questions, invite no response, and focusthe suspect only on exculpatory information, such as alibis ormitigating information. See Rhode Island v. Innis, 446 U.S. 291(1980) (explaining that Miranda safeguards “come into playwhenever a person is subjected to either interrogation or itsfunctional equivalent” and defining “interrogation” as “words oractions on the part of the police . . . that the police should know arereasonably likely to elicit an incriminating response from thesuspect”). Indeed, the Appellate Division correctly refused to adoptdefendant’s argument on this point, and defendant abandoned thatargument in the Court of Appeals.

  • 21

    rights. Cf., Duckworth v. Eagan, 492 U.S. 195, 203(1989) (where there is deviation from Miranda, courtsmust inquire “whether the warnings reasonably‘conve[yed] to [a suspect] his rights’”), quotingCalifornia v. Prysock, 453 U.S. 355, 361 (1981); Floridav. Powell, 559 U.S. at 60 (since suspect was not toldthat he had the right to the presence of a lawyer duringquestioning, it was necessary to determine whether, asa whole, this right was nonetheless effectivelyconveyed).

    Contrary to the Court of Appeals’ decision, theautomatic suppression required for a failure to givesome or all of the Miranda warnings, is simply notapplicable -- and has never before been applied -- to acircumstance like this one, where the warnings werecompletely, carefully, and clearly read to defendantwhile he listened attentively, and were fullyacknowledged and waived by defendant before he wasasked any questions and before he decided to make anystatements at all.

    In this regard, the Court of Appeals’ attempt toderive support for its unprecedented analysis in thisCourt’s condemnation of the “question first” proceduresat issue in Missouri v. Seibert, 542 U.S. at 600 (seeDunbar at 12a-13a), is to grossly misconstrue thecentral points of the plurality opinion and the decisiveconcurring opinion of Justice Kennedy. To JusticeSouter, writing for the plurality, what made thewarnings ineffective “[b]y, any objective measure”when given only after the defendant has made anincriminating statement, was that “[u]pon hearingwarnings only in the aftermath of interrogation and

  • 22

    just after making a confession, a suspect would hardlythink he had a genuine right to remain silent, let alonepersist in so believing once the police began to lead himover the same ground again.” Id. at 613-614. Inparticular, this Court stressed that before thewarnings were given, the first, unwarned interrogationleft “little, if anything, of incriminating potential leftunsaid.” Id.4

    Here, of course, defendant did not say anythingbefore the warnings were given; let alone give a fullconfession. The extreme attempt to end-run Mirandaat issue in Missouri v. Seibert -- where lawenforcement interrogated a suspect without Mirandawarnings, elicited a full confession, and thenadministered warnings and had the suspect repeathimself -- bears no similarity whatsoever to the facts ofthe case at bar, where nothing was asked and nostatements were made by defendant prior to acomplete and accurate recitation, acknowledgment,and waiver of Miranda rights. Thus, contrary to theCourt of Appeals’ reasoning, there is nothing in thisCourt’s decision in Seibert -- either in the plurality,concurrence, or dissent -- that would support, or even

    4 In his concurring opinion, Justice Kennedy would not evencategorically bar the question first procedure if there is “asubstantial break in time and circumstances between the pre-warning statement” such that “the Miranda warning may suffice,”or “an additional warning that explains the likely inadmissibilityof the pre-warning custodial statement.” Id. at 621-622 (Kennedy,J., concurring). Of course, Justice Kennedy’s opinion, too, isfounded on the premise that the suspect actually made astatement prior to Miranda. The Court of Appeals seems to havemissed this critical point.

  • 23

    permit, suppression here. See, e.g., Bobby v. Dixon,__U.S.__; 132 S. Ct. 26, 31 (2011)(“there is no concernhere that police gave Dixon Miranda warnings andthen led him to repeat an earlier murder confession,because there was no earlier confession to repeat”).

    This, alone, should end the inquiry here andrequire reversal of the Court of Appeals’ decision. For,whatever the impact of any additional remarks orconduct by law enforcement that might haveencouraged defendant to waive his rights, it would not,and could not, go to the question of effectiveadvisement -- which is the only basis for the Court ofAppeals’ holding that Miranda was violated, and, thus,the only issue now before this Court. Instead, under aproper analysis, the impact of the interviewers’standardized pre-Miranda remarks on defendant’sdecision of whether to waive his rights would be butone factor among many bearing on the determinationof voluntariness, which, as discussed below (see, infra,section D), and recognized by all parties and everycourt here, was clearly not a concern in this case underthe totality of the circumstances. See New York v.Quarles, 467 U.S. 649, 660 (1984) (O’Connor, J.,concurring), citing Miranda v. Arizona, 384 U.S. at 475(“[a]s to the statements elicited after the Mirandawarnings were administered, admission should turnsolely on whether the answers received werevoluntary.”)

    Thus, certiorari should be granted to clarify thatSeibert’s expansion of the exclusionary rule to requiresuppression of post-Miranda statements in a “questionfirst” setting, does not reach, and should not be

  • 24

    expanded, to the facts at bar. In so doing, this Courtshould reaffirm and clarify that as long as Mirandarights are fully administered, acknowledged, andwaived prior to custodial interrogation and theelicitation of any statement from the suspect, thefundamental requirement of effective advisement isnecessarily satisfied, and all other circumstancesshould be considered only for their impact on theknowing and voluntary nature of the waiver andstatement -- which is a due process inquiry, properlyconsidered under the totality of the circumstances.

    B. The Standardized Pre-Miranda Remarks,Which, at Worst, Implied to Defendant thatthere Might be a Benefit to Speaking toInvestigators, did not Contradict the Warningsor Undermine Them so as to Prevent Adequateand Effective Advisement.

    Even assuming, as the Court of Appeals posits,that one could conceive of words preceding a completerecitation of Miranda warnings that might impact thethreshold question of whether Miranda rights wereeffectively conveyed, rather than the separate questionof voluntariness, the standardized pre-Mirandaremarks at issue here are clearly not such words. Initially, these remarks were unlikely to confuse asuspect’s understanding of his Miranda rights, for theywere distinct and separate from the Miranda warnings,and explicitly noted as such by the interviewers (see87a: “in a few minutes, I’m going to read you yourrights;” 88a: “I am going to read you your rights now,and then you can decide if you want to speak with us,okay”). But, more importantly, fairly read in the

  • 25

    context in which they were uttered, rather thanselectively excerpted, and properly considered inconjunction with the clear and forceful Mirandawarnings that immediately followed, rather than inisolation, it is clear that defendant’s rights wereeffectively conveyed prior to any interrogation. SeeFlorida v. Powell, 559 U.S. at 60 (requiring that theadvisement of rights be “viewed as a whole” todetermine whether it “reasonably conve[yed] ... [the]rights required by Miranda”).

    Specifically, the Court of Appeals’ majority heldthat the interviewers’ request that defendant “‘give asmuch information as you can,’ that ‘this is youropportunity to tell us your story,’ and that you ‘have totell us now,’ directly contradicted the later warningthat [he] had the right to remain silent” (14a). Butcontrary to the majority’s characterization, defendantwas not given blanket instructions that he had tospeak or provide information; rather, each of theseexcerpts were part of sentences beginning with thewords “if you have an alibi ...” or “if your version ... isdifferent” or “if there is something you need us toinvestigate ...” (87a), which properly highlighted thatthe defendant had a choice and personally controlledthe decision about whether he wished to speak or not. And this is precisely what effective conveyance ofMiranda requires.

    Indeed, the characterization of the interview asan “opportunity” to speak to investigators did notdiminish or undermine the advisements of the rights toremain silent or to have an attorney appointed, as themajority opined; to the contrary, an “opportunity” is a

  • 26

    choice that can be exercised or not. Far fromcontradicting the Miranda rights that followed, thisword operated only to highlight to the defendant thatspeaking to the investigators was not a mandatory orcompelled course of action, but, rather, a voluntarychoice that was within his personal control. Advisinga defendant that he is going to be given an opportunityto speak, if he so chooses, and that he can decide if hewants to avail himself of that opportunity only afterhearing and acknowledging his rights, is completelyproper and fully consonant with the Miranda warningsadvising him that he also has the right to refuse tospeak. See Missouri v. Seibert, 542 U.S. at 609(explaining that Miranda requires that the suspect begiven “a real choice between talking and remainingsilent”).

    While the Court of Appeals’ majority takes apaternalistic view of Miranda’s purpose, seeming toprefer that interrogators only advise defendants thatthey do not have to speak to investigators, there isnothing wrong with also informing them that they canchoose to speak to investigators, and suggestingpossible topics of discussion. Indeed, any waiverdecision is best made when a defendant is apprised of,and can consider, all available options, choices,consequences, and opportunities.

    Similarly misplaced is the majority’s conclusionthat in explaining that “speaking would facilitate aninvestigation, the interrogators implied that[defendant’s] words would be used to help [him], thusundoing the heart of the warning that anything [he]said could and would be used against [him]” (14a).

  • 27

    Contrary to the majority’s selective extrapolation, theinterviewers never told defendant nor implied in anyway that his words would be used to help him -- onlythat they would “look into” any information concerningthe incident that defendant might ask them toinvestigate (87a). And then defendant was clearly andforcefully apprised that “anything you do say may beused against you in a court of law” (88a). Thus, farfrom contradicting the heart of the critical warningthat anything he said would be used against him, thepre-Miranda remarks were in perfect harmony withthat warning; apprising defendant only that hisversion of events would be listened to, if he chose toprovide it, and that his request for an investigationwould be honored.

    Likewise far-fetched was the majority’sconclusion that telling defendant that “the pre-arraignment interrogation was [his] ‘only opportunity’to speak falsely suggested that requesting counselwould cause [him] to lose the chance to talk to anassistant district attorney” (14a). In fact, defendantwas actually told, “Even if you have already spoken tosomeone else, you do not have to talk to us. This willbe your only opportunity to speak to us before you go tocourt on these charges” -- a statement that wasfollowed almost immediately by an advisement thatdefendant “ha[d] the right to be arraigned withoutundue delay” and a definition of the process: “that is, tobe brought before a judge, to be advised of the chargesagainst you, to have an attorney assigned to orappointed for you, and to have the question of baildecided by the court” (87a-88a). Contrary to themajority’s conclusion, there is nothing in these pre-

  • 28

    Miranda remarks that states, suggests, or even hintsat the possibility that by exercising his right to counsel,defendant would forever forgo the chance to speak withthe district attorneys. To the contrary, the remarksclearly and accurately apprised defendant that theinterview was his only opportunity to speak with them“before you go to court on these charges” -- and he wasclearly told, immediately thereafter, that this willoccur imminently.

    Moreover, as defendant’s ability to speak toprosecutors is not a right guaranteed under Miranda orrequiring any advisement, the majority’s concern aboutdefendants being potentially misled on this point hasno place whatsoever in its analysis of whether Mirandarights were clearly and effectively conveyed. Rather, ifthis is construed as some form of falsehood or deception(which, viewed in context, it is not), it clearly fallsunder the penumbra of a due process concern bearingon voluntariness, which must be analyzed under thetotality of the circumstances (see infra, Point D).

    But, most saliently, and as the dissent cogentlyreasoned, even if the pre-Miranda remarks areinterpreted according to the majority’s view, and “areasonable person in these defendants’ shoes mightwell have concluded, after having listened to thepreamble, that it was in his best interest to get out hisside of the story -- fast” (15a), this would still notfurnish any basis whatsoever to find that Miranda wasnot effectively conveyed. Nor, indeed, would it furnishany grounds for concern or distress; for “if the suspecthappened to be innocent -- if he had nothing whateverto do with the crime -- that conclusion would probably

  • 29

    be correct. It is usually in the interest of an innocentperson to give investigators the true facts as soon aspossible, before the evidentiary trail has grown coldand before an alibi can be tainted by the suspicion ofcontrivance” (Smith, J., dissenting at 18a), citingWilliam J. Stuntz, Miranda’s Mistake, 99 Mich. L. Rev.975, 996-97 (2001).

    And, conversely, if the suspect is guilty, and ifthe preamble nevertheless persuades him to decide tospeak by exploiting “the natural impulse of any guiltydefendant to think that he can talk his way out oftrouble, by persuading police or prosecutors either thathe is innocent, or that he deserves leniency” (19a), that,too, is completely permissible. For, as this Court hasrepeatedly recognized, the latitude afforded lawenforcement to seek and obtain a suspect’s voluntaryconfession prior to arraignment, before the right tocounsel indelibly attaches and bars furtherinterrogation, is not a necessary evil, as the tenor ofthe majority’s opinion suggests, but, rather, “anunmitigated good, essential to society’s compellinginterest in finding, convicting, and punishing thosewho violate the law.” See Maryland v. Shatzer, 559U.S. 98, 108 (2010) (internal quotations omitted).

    The key to the threshold inquiry of effectiveadvisement of Miranda -- the only issue implicatedhere -- is simply whether defendant understood that hehad a choice; irrespective of whether he wiselyexercised it under the circumstances.5 As the dissent

    5 The state courts’ discomfort with the interview program on the(continued...)

  • 30

    correctly explained, and the majority clearlymisunderstood, “Miranda does not require lawenforcement officials to repress, or forbid them toencourage, the tendency of criminals to talk too much. That tendency greatly contributes to the efficiency oflaw enforcement; many more crimes would gounpunished if it did not exist” (19a).

    Certiorari should be granted to correct the Courtof Appeals’ misapprehension of this crucial point, andto nip at the bud its incorrect and unprecedentedexpansion of Miranda’s exclusionary rule to permitautomatic suppression of voluntary statements madeafter a complete and clear advisement of Mirandarights, expressly acknowledged and waived. Exclusionof highly probative and voluntary statements is not, as

    5(...continued)grounds that it rarely, if ever, actually enures to a defendant’sbenefit to waive his rights and speak to the investigators, is whollyirrelevant to the analysis. The requirement that a waiver beknowing, “intelligent,” and voluntary does not require that thedecision be wise or, ultimately, beneficial to the defendant. Ascourts have explained, the modifier “intelligent” does not mean thata waiver must be wise, shrewd or prudent, but only that it occurwith an appreciation of the right being abandoned and theconsequences of abandoning it. See Colorado v. Spring, 479 U.S.at 564 (a valid waiver must be “voluntary in the sense that it wasthe product of free and deliberate choice;” and “knowing” or“intelligent” in that it was “made with full awareness both of thenature of the right being abandoned and the consequences of thedecision to abandon it”); see also Collins v. Brierly, 492 F.2d 735,739 (3d Cir. 1974) (in the context of an intelligent waiver ofMiranda, “intelligence is not equated with wisdom”). Indeed, if thevalidity of a waiver could be judged based on the ultimate wisdomof the defendant’s choice, then no incriminating statement couldever be received into evidence against a defendant.

  • 31

    the Court of Appeals’ majority suggests, a societal goalto which we should aspire, so as to justify a broad rulethat automatically achieves this result in as manycases as possible; rather, as this Court has repeatedlyrecognized, “society would be the loser” of a rulebarring admission of voluntary confessions, becausethis would only frustrate the ultimate truth-seekingfunction of a trial. McNeil v. Wisconsin, 501 U.S. 171,181 (1991). Society has clearly lost in this case -- andwill lose thousands of times over -- unless and untilthis Court corrects the decision of New York’s highestcourt on this far-reaching, and seminal question offederal constitutional law.

    C. The Analysis is No Different as a Result of thePre-Miranda Comments Being StandardizedRather than Ad Hoc

    In reaching its conclusion, the Court of Appealshighlighted, as did the Appellate Division before it,that the statement in this case was obtained as part ofa “structured” or “standardized” pre-arraignmentinterview program used by the District Attorney’soffice since 2007 in thousands of cases, and that thepre-Miranda remarks at issue were “scripted” ratherthan ad hoc (1a). The Court of Appeals used thesefacts to try to further bolster its tenuous analogy toSeibert, stating that “[t[he issue, as in Seibert, iswhether a standardized procedure ... effectivelyvitiated or at least neutralized the effect of thesubsequently-delivered Miranda warnings” (14a). Contrary to the Court of Appeals’ insinuation, it iswholly irrelevant to the effective-advisement analysiswhether the interviewer’s pre-Miranda comments were

  • 32

    standardized or ad hoc, or delivered for the first orthousandth time. For, while a court is certainly free toevaluate the tone and manner in which an interview isconducted as one of many circumstances that mightimpact the voluntariness of an individual suspect’swaiver under due process totality-of-the-circumstancesanalysis, such consideration has no place in thequestion decided by the Court of Appeals, and nowbefore this Court, about whether Miranda waseffectively conveyed.

    Indeed, the number of times that the pre-Miranda remarks were used by the investigator incases past, and whether it was uttered ad hoc or wascarefully crafted, is irrelevant to either analysisbecause none of this is known to the defendant, and,thus, cannot impact his understanding or waiver. See.e.g., Fare v. Michael C., 442 U.S. at 707 (validity of thewaiver must be gauged by reference to totality of thecircumstances confronting the suspect at that time). Relatedly, whether the District Attorney’s intention inreading a brief pre-Miranda statement is to orient adefendant, elicit exculpatory information, or put asuspect at ease so that he is more likely to talk to theinterviewers and confess (see Dunbar at 43a-44a,questioning the DA’s purpose), this consideration, too,is entirely irrelevant; for the subjective intent of theinterviewer -- which is also not known to the suspect --similarly cannot possibly impact his understanding ofhis rights or the voluntariness of his waiver. Id.

    While defendant challenged this propositionbelow, claiming that it was rejected by the majority ofthis Court in Seibert, and that it merely restates the

  • 33

    concerns of the Seibert dissent, which, according todefendant, “is not the law” (Defendant’s Court ofAppeals Brief at 42-43, citing Missouri v. Seibert, 542U.S. at 600), this characterization of Seibert’s holdingwas simply wrong. Contrary to defendant’scontentions, the Seibert plurality did not hold that thesubjective intent of the interrogator was relevant to theMiranda inquiry; only Justice Kennedy so opined. Rather, in accordance with settled law, the plurality“correctly decline[d] to focus its analysis on thesubjective intent of the interrogating officer,” (Id. at624), and the four-Justice dissent agreed with thatassessment:

    The plurality’s rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at theheart of the Fifth Amendment andrequires us to assess whether a suspect’sdecision to speak truly was voluntary. Because voluntariness is a matter of thesuspect’s state of mind, we focus ouranalysis on the way in which suspectsexperience interrogation. ... ‘[W]hetherintentional or inadvertent, the state ofmind of the police is irrelevant to thequestion of the intelligence andvoluntariness of respondent’s election toabandon his rights.’

    Missouri v. Seibert, 542 U.S. at 624-625, citing Moranv. Burbine, 475 U.S. at 423; Stansbury v. California,511 U.S. 318, 324-25 (1994) (per curiam) (“one cannot

  • 34

    expect the person under interrogation to probe theofficer’s innermost thoughts”).

    Indeed, as the Seibert dissent wrote, inagreement with the plurality, analysis of the subjectivestate of mind of the interrogator is not only contrary toestablished law and the crux of the inquiry regardingthe voluntariness of a Miranda waiver, but it is also“an unattractive proposition that we all but uniformlyavoid,” as the subjective intent of the interrogator is“unverifiable,” and “sending state and federal courts onan expedition into the minds of police officers wouldproduce a grave and fruitless misallocation of judicialresources,” and inconsistent results. Seibert at 625-26,citing United States v. Leon, 468 U.S. 897, 922 n. 23(1984). For these reasons, this Court has rejected anintent-based test in other criminal procedure contextsas well. See, e.g., New York v. Quarles, 467 U.S. at656; Whren v. United States, 517 U.S. 806, 813-14(1996).

    Therefore, contrary to the Court of Appeals’understanding, and as previously discussed, Seibert, avery extreme continuous-interrogation case, didnothing more than adopt a common-sense rule barringlaw enforcement from effecting an end-run aroundMiranda by obtaining a full pre-Miranda confession,and then giving warnings and having the suspectrepeat the confession. It is not directly applicable tothis case, and cannot be used to justify -- let alonecompel -- suppression here.

  • 35

    D. The Due Process Question of Whether theStandardized Pre-Miranda Remarks Vitiatedthe Knowing and Voluntary Nature ofDefendant’s Waiver and Statement wasConceded Below, and is, in any Event, Not aConcern Under the Facts of This Case.

    In this case, defendant ultimately conceded --and all of the state courts have agreed -- that dueprocess voluntariness concerns are not implicated(Dunbar at15a, “the issue ... is not whether, under thetotality of the circumstances, these defendants’ waiverswere valid, but rather whether or not they were ever‘clearly informed’ of their Miranda rights in the firstplace, as is constitutionally required”). Indeed,however negatively the Court chooses to construe theinterviewers’ pre-Miranda remarks, they can hardly becharacterized as amounting to the “coercion of aconfession by physical violence or other deliberatemeans calculated to break [defendant’s] will.” Oregonv. Elstad, 470 U.S. 298, 312 (1985); see also Illinois v.Perkins, 496 U.S. 292, 297 (1990) (even “[p]loys tomislead a suspect or lull him into a false sense ofsecurity that do not rise to the level of compulsion orcoercion to speak are not within Miranda’s concerns”).

    And this conclusion is only bolstered here by thetotality of the other circumstances attendant to thecase. In this case, defendant was subjected to a total ofonly eleven minutes of interrogation -- including thestandardized pre-Miranda remarks and advisement ofMiranda rights, which consumed nearly three minutesof this time. He was never threatened, deprived offood, drink, or sleep, nor subjected to any physical

  • 36

    force. Indeed, he was specifically told the interviewwould be videotaped, providing further assurance. Defendant was calm during the interview, andappeared lucid and clear-headed. He spoke Englishwithout any problem, and was visibly eager to speak tothe interviewers. And his decision to do so was clearlya strategic one.

    Defendant was a persistent violent felonyoffender, 35 years old at the time of this crime, with ahistory of prior robbery convictions. At the time that hechose to waive his Miranda rights and speak toinvestigators in Central Booking, he already knew thathe had been identified by the victim in a show-upconducted less than five minutes after the crime, andthat both the gun he had wielded, and the distinctiveblue-striped shirt and Yankee hat he had worn duringthe robbery, had been recovered from the floor of theseat in front of him in the getaway car. He also knewthat the getaway driver, with whom he had plannedthe robbery, had been arrested by police. Under thesecircumstances, defendant knew, as he candidlyadmitted during his interview, that he “couldn’t say itwasn’t [him]” -- that defense would never work underthe facts of this case. Instead, he believed that his lastbest hope was to try to work out a cooperationagreement, where the DA would offer him someleniency in exchange for his testimony against others. And that is precisely what he kept trying to negotiatethroughout his interview.

    Defendant’s calculated decision to waive hisrights and attempt to broker a deal is the very epitomeof a knowing and voluntary waiver. Whatever the

  • 37

    wisdom of that choice, it is not one that was thrustupon him, and certainly not one that was suggested byany of the brief pre-Miranda remarks. Thus, even if,as the Court of Appeals described them, the pre-Miranda statements were “at best confusing and atworst misleading” (14a), there is no “evidence that[defendant’s] ‘will [was] overborne and his capacity forself-determination critically impaired’ because ofcoercive police conduct.” Colorado v. Spring, 479 U.S.at 575, quoting Colorado v. Connelly, 479 U.S. 157,163-164 (1986). Accordingly, in addition to beingproperly preceded by a full and effective advisement ofMiranda rights, defendant’s “waiver of his FifthAmendment privilege was voluntary under this Court’sdecision in Miranda.” Id.

    In sum, on this record, and based squarely onthis Court’s precedent, suppression was simply notpermitted in this case. Certiorari should be grantedbecause the Court of Appeals’ decision exposes itsfundamental misapprehension of both Miranda’s corepurpose and the scope of its breadth, and because suchgrave misapprehension of so important a right by NewYork’s highest court -- in a decision based entirely andsolely on federal constitutional grounds -- will have far-reaching consequences implicating thousands uponthousands of cases involving the effectiveadministration of Miranda rights and the

  • 38

    constitutional grounds for automatic suppression ofvoluntary and reliable statements.6 The right is tooimportant, the reach too broad, and the magnitude ofthe error too great to permit this decision to stand.

    6 The impact of the Court of Appeals’ decision is definitely notnarrowly limited to cases involving this particular interviewprogram, which may, in any event, be quite numerous inthemselves. For under the Court of Appeals’ holding, anystatement uttered to a suspect prior to Miranda can becharacterized as impacting effective advisement of the warningsthat follow. Thus, other than non-verbal conduct precedingMiranda -- like actual physical deprivations or violence -- anycommonplace pre-Miranda comment by law enforcement caneasily be couched by a clever defense attorney as seeking toconvince the suspect to speak (and, thus, contradicting the rightto remain silent) or leading him to believe that he might benefitfrom speaking (and, thus, contradicting the advisement thatanything he says could be used against him). And, under theCourt of Appeals’ precedent, it would then be deemed to requireautomatic suppression, without any need for a hearing or a case-by-case evaluation of the impact on an individual suspect underthe circumstances of his individual case. The impact of this caseis, thus, staggering. Rather than keeping with this Court’spersistent attempts to limit the reach of the exclusionary rule toprevent suppression of voluntary and reliable statements, theCourt of Appeals has expanded that reach to an area neverpreviously conceived by any court.

  • 39

    CONCLUSION

    For the reasons stated above, this Court shouldgrant the State’s petition for a Writ of Certiorari.

    Respectfully submitted,

    RICHARD A. BROWNDistrict Attorney, Queens County

    JOHN M. RYANJAMES C. QUINNROBERT J. MASTERSEDWARD D. SASLAWAssistant District Attorneys

    DONNA ALDEA*BARKET, MARION, EPSTEIN, &KEARON, LLPSpecial Counsel, Pro Bono

    *Counsel of Record

    January 26, 2015

  • APPENDIX

  • 1a

    ________________________________No. 169The People & c.,

    Appellant, v.Jermaine Dunbar,

    Respondent.__________________________________No. 170 The People &c.,

    Appellant, v.Collin F. Lloyd-Douglas,

    Respondent.___________________________________

    Case No. 169:

    Donna Aldea, for appellant.

    Allegra Glashausser and Leila Hull, forrespondent.

    The Legal Aid Society; New York Civil LibertiesUnion; Legal Ethics Bureau at New York UniversitySchool of Law; District Attorneys Association of theState of New York, amici curiae.

  • 2a

    Case No. 170:

    Donna Aldea, for appellant.

    Allegra Glashausser and Leila Hull, forrespondent.

    New York Civil Liberties Union et al.; LegalEthics Bureau at New York University School of Law;District Attorneys Association of the State of NewYork, amici curiae.

    READ, J.:

    Beginning in 2007, the Queens County DistrictAttorney implemented a central booking pre-arraignment interview program, launched inconjunction with the initiative to videotapeinterrogations. The program consisted of a structured,videotaped interview conducted by two members of theDistrict Attorney's staff (an assistant district attorneyand a detective investigator [DI]) with a suspectimmediately prior to arraignment. During thisinterview, the DI delivered a scripted preface or"preamble" to the Miranda warnings that, among otherthings, informed the suspect that "this is youropportunity to tell us your story," and "your onlyopportunity" to do so before going before a judge. Afterbeing so cautioned, defendants Jermaine Dunbar(Dunbar) and Collin F. Lloyd-Douglas (Lloyd-Douglas)made statements in their respective interviews, whichthey later sought to suppress. We hold that thepreamble undermined the subsequently-communicated

  • 3a

    Miranda warnings to the extent that Dunbar andLloyd-Douglas were not "'adequately and effectively'advised of the choice [the Fifth Amendment]guarantees" against self-incrimination (Missouri vSeibert, 542 US 600, 611 [2004], quoting Miranda vArizona, 384 US 436, 467 [1966]) before they agreed tospeak with law enforcement authorities.

    I.

    Dunbar

    On April 23, 2009, at 12:40 p.m., Dunbarentered a money wiring and office services store inQueens where a lone cashier was working at the time. He threatened the cashier with what appeared to be agun and demanded that she turn over money. Lockedin a plexiglass enclosure, the cashier threw herself tothe floor, called 911 and pressed the distress button. Thus thwarted, Dunbar fled in a waiting black liverycar with New Jersey license plates. He wasapprehended less than five minutes later when policeofficers patrolling in the area spotted the car. Thecashier identified Dunbar as the would-be robber in ashow-up soon after. She had told the police that theperpetrator was a thin black man who wore a blue andwhite striped shirt and a hat, and the police discoveredthese items and an imitation pistol on the floor of thegetaway car. Dunbar was arrested at 12:59 p.m. andbrought to central booking in Queens.

    About 23 hours after he was taken into custody,at 12:03 p.m. on April 24, 2009, Dunbar wasinterviewed by a DI and an assistant district attorney.

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    The Assistant District Attorney described for Dunbarthe charges he would be facing when he went to court,including the date, time and place of the crimesalleged. The DI then informed Dunbar that "in a fewminutes I am going to read you your rights. After that,you will be given an opportunity to explain what youdid and what happened at that date, time and place." She then delivered the preamble, advising Dunbar asfollows:

    "If you have an alibi, give me as muchinformation as you can, including the names ofany people you were with.

    "If your version of what happened isdifferent from what we've been told, this is youropportunity to tell us your story.

    "If there is something you need us toinvestigate about this case you have to tell usnow so we can look into it.

    "Even if you have already spoken tosomeone else you do not have to talk to us.

    "This will be your only opportunity tospeak with us before you go to court on thesecharges."

    The DI continued without a break, following ascript, next informing Dunbar that "[t]his entireinterview is being recorded with both video and sound";and "I'm going to read you your rights now, and thenyou can decide if you want to speak with us, O.K.?"

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    She then advised "You have the right to be arraignedwithout undue delay; that is, to be brought before ajudge, to be advised of the charges against you, to havean attorney assigned to or appointed for you, and tohave the question of bail decided by the court"; gavethe Miranda warnings; and, finally, asked "Now thatI have advised you of your rights, are you willing toanswer questions?" Dunbar indicated hisunderstanding of each warning as it was given, and hiswillingness to continue the interview.

    When the DI asked Dunbar "what happened," herelated that a man named Pete had told him about"robbing this place." Dunbar twice interrupted thequestioning to express puzzlement as to how theinterview was helping him. He remarked that he"want[ed] to work around this," and asked if he wouldbe talking to "the D.A." next. Dunbar was told that thenext person he would be speaking to was his lawyer. The Assistant District Attorney and DI explained thatit was their job to determine if there was anythingDunbar needed them to investigate, and to find out hisside of the story. Dunbar responded that his side ofthe story was that he was forced by Pete and "Ralphy"(the driver of the livery cab) to rob the store.

    After Dunbar was indicted for second-degreeattempted robbery (Penal Law §§ 160.10 [1]; 110.00),fourth-degree criminal mischief (Penal Law § 145.00[1]) and other crimes, he made a motion to suppress. As relevant to this appeal, he argued that hisvideotaped statement was not voluntary and that hehad not been adequately advised of his Miranda rights. After a hearing, the suppression court denied the

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    motion, reasoning that, in view of the totality of thecircumstances, Dunbar's statement was voluntarilymade after a valid Miranda waiver and before his rightto counsel attached under New York law.

    At Dunbar's jury trial, the cashier identified himas the perpetrator and police testimony establishedthat he had been arrested within minutes of therobbery. Additionally, the jurors were shown bothsurveillance video depicting Dunbar at the store andthe videotaped interview. Dunbar was convicted ofattempted robbery and criminal mischief, the tworemaining counts of the indictment. On May 20, 2010,Supreme Court sentenced him as a persistent violentfelony offender to an indeterminate prison term of from17 years to life. Dunbar appealed.

    On January 30, 2013, the Appellate Divisionunanimously reversed, concluding that the preamble"add[ed] information and suggestion . . . whichprevent[ed the Miranda warnings] from effectivelyconveying to suspects their rights," creating a"muddled and ambiguous" message (104 AD3d 198,207 [2d Dept 2013]). In this regard, the court rejectedthe argument, advanced by the People, that the effectof the preamble had to be assessed on a case-by-casebasis, taking into account the individual experienceand circumstances of each suspect. In the AppellateDivision's view, such case-by-case determination, whilerelevant to the voluntariness of a waiver, wasirrelevant to the question of whether Mirandawarnings were properly administered in the first place(id. at 210). The court further determined that theerror in admitting the videotaped statement was not

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    harmless beyond a reasonable doubt in light of thefacts and circumstances of the case, and so ordered anew trial. A Judge of this Court granted the People'sapplication for leave to appeal (21 NY3d 942 [2013]),and we now affirm.

    Lloyd-Douglas

    On the evening of September 6, 2005, Lloyd-Douglas got into an argument with P.D. with whom hewas romantically involved. P.D. testified that the nextmorning, Lloyd-Douglas attacked her with a hammeras she left for work from the apartment she and Lloyd-Douglas shared. P.D. suffered grievous injuries,including a fractured skull. Ignoring P.D.'s pleas tocall an ambulance, Lloyd-Douglas waited around in theapartment for three or four hours before leaving and,according to P.D., he took her phone, money, andidentification with him. She managed to crawl to herbedroom and call 911. After being transported to thehospital, P.D. underwent emergency surgery to removebone fragments and damaged parts of her brain; P.D.'sinjuries left her with difficulty talking, understanding,balancing, standing and walking, and requiredadditional surgery and extensive physical therapy.

    Lloyd-Douglas was apprehended about threeyears after this incident, on June 12, 2008. While atcentral booking in Queens, he was interviewed by anassistant district attorney and a DI. The DI introducedherself and the Assistant District Attorney, told Lloyd-Douglas the charges he would be facing and that hewould be read his rights "in a few minutes," afterwhich he would have "an opportunity to explain what

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    you did and what happened at that date, time, andplace." The DI then delivered the preamble; toldLloyd-Douglas that the interview was being recordedwith both video and sound; that she was going to "readhim his rights" and then he could "talk with [her] if helike[d];" advised him of his right to be arraignedwithout undue delay; gave the Miranda warnings andconcluded by asking "Now that I have advised you ofyour rights, are you willing to answer questions?" LikeDunbar, Lloyd-Douglas indicated his understanding ofeach warning as it was given, and agreed to participatein an interview.

    Lloyd-Douglas acknowledged that he had foughtwith P.D. the day of the incident, but claimed that shehad attacked him with the hammer and somehowinjured herself during the ensuing struggle as hesought to protect himself. He acknowledged remainingin the apartment with her for several hoursafterwards, as well as his refusal to call an ambulance;he denied taking P.D.'s wallet or cell phone. Lloyd-Douglas insisted that P.D. did not appear to him to beseriously hurt, and that he had made sure before heleft that she had access to a telephone so that shemight call an ambulance if she wished to do so.

    After Lloyd-Douglas was indicted for attemptedmurder in the second degree (Penal Law §§ 110.00;125.25 [1]), first-degree assault (Penal Law § 120.10[1]), first-degree robbery (Penal Law § 160.15),unlawful imprisonment in the first degree (Penal Law§ 135.10), criminal possession of a weapon in the third-degree (Penal Law § 265.02 [1]), and other crimes, hemoved to suppress his videotaped statement. He

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    argued that the statement was involuntary because hehad been held in central booking for about 22 hoursand had not been specifically asked by the DI if hewanted food or water, if he needed to use the bathroomor was on any medication. The People responded thatthe statement was voluntarily made after a validMiranda waiver, that Lloyd-Douglas was arraigned inless than 24 hours, that he had access to the bathroom,food, and water and that he was questioned for lessthan 30 minutes. The People further argued that thevoluntariness of the waiver and statement wasestablished by the video itself, which showed thatLloyd-Douglas took control of the interview.

    After a hearing, the Judicial Hearing Officerissued a written decision, subsequently confirmed bySupreme Court on September 17, 2009, denying Lloyd-Douglas's motion to suppress. The Hearing Officerconcluded that "the People have proved, beyond areasonable doubt, that the defendant's statementswere made pursuant to his knowing, intelligent, andvoluntary waiver of his constitutional rights." Shecredited the DI's testimony and found "nothing in therecord to indicate that the defendant was threatened tomake a statement or that his will was overborne," andthat "no evidence was adduced to indicate that thedefendant was irrational or in any way incapable ofappreciating the consequences of his statements, northat he was subjected to 'overbearing interrogation.'"

    At Lloyd-Douglas's jury trial in Supreme Court,P.D. identified him as her assailant and testified aboutthe details of the assault, medical evidence establishedthe nature and extent of her injuries and the jurors

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    were shown Lloyd-Douglas's videotaped interview. Lloyd-Douglas testified on his own behalf and claimed,consistent with his videotaped statement, that hefought with P.D., but that she attacked him with thehammer and her injuries were self-inflicted; the trialjudge gave a justification instruction. The juryconvicted Lloyd-Douglas of all the crimes submitted tothe jury except robbery, and on April 7, 2010, SupremeCourt sentenced him to prison for 15 years, to befollowed by 5 years of postrelease supervision. Heappealed.

    On January 30, 2013, the Appellate Divisionunanimously reversed (102 AD2d 986 [2d Dept 2013]),ordering suppression of the statement for the reasonsstated in the companion case of People v Dunbar,supra. The court further concluded that the error wasnot harmless beyond a reasonable doubt in light of thefacts and circumstances of the case, and so ordered anew trial. A Judge of this Court granted the People'sapplication for leave to appeal (21 NY3d 944 [2013]),and we now affirm.

    II.

    An individual taken into custody by lawenforcement authorities for questioning "must beadequately and effectively apprised of his rights"safeguarded by the Fifth Amendment privilege againstself-incrimination (Miranda, 384 US at 467; US ConstAmend V). First, the authorities must inform asuspect in "clear and unequivocal terms" of the right toremain silent (id. at 467-468). Second, they must makea suspect "aware not only of the privilege, but also of

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    the consequences of forgoing it" by explaining that"anything" he says during the interrogation "can andwill be used against [him] in court" (id. at 469). "[T]oassure that [this] right to choose between silence andspeech remains unfettered throughout theinterrogation process," the authorities must alsoexplain to the suspect that he has a right to thepresence of an attorney (id.). And finally, so that theright to an attorney is not "hollow," the authoritiesmust also advise the suspect "that if he is indigent alawyer will be appointed to represent him." (id. at 473).

    These four warnings are an "absoluteprerequisite to interrogation" (id. at 471). Further,"[t]he Fifth Amendment privilege is so fundamental toour system of constitutional rule and the expedient ofgiving an adequate warning as to the availability of theprivilege so simple, [a court does] not pause to inquirein individual cases whether the defendant was awareof his rights without a warning being given" (id. at 468[emphasis added]). In sum, absent a "full and effectivewarning of [these] rights" and a knowing, intelligentand voluntary waiver, statements made by a suspectduring custodial interrogation must be suppressed (id.at 445, 475-476).

    Although Miranda's bright-line rule wascontroversial at first, it "has become embedded inroutine police practice to the point where the warningshave become part of our national culture" (Dickersonv United States, 530 US 428, 443 [2000]). Prior to theMiranda decision, courts looked at every confessionindividually for voluntariness, using a totality-of-the-circumstances test grounded in notions of due process

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    (id. at 432-433). This due process test took intoconsideration "the totality of all the surroundingcircumstances -- both the characteristics of the accusedand the details of the interrogation" (id. at 434[internal quotation marks omitted]). W h i l e t h eprosecution still must prove voluntariness of aconfession, "Miranda changed the focus of much of theinquiry" (id.). Indeed, "giving the warnings and gettinga waiver has generally produced a virtual ticket ofadmissibility; maintaining that a statement isinvoluntary even though given after warnings andvoluntary waiver of rights requires unusual stamina,and litigation over voluntariness tends to end with thefinding of a valid waiver" (Seibert, 542 US at 608-609).

    Since Miranda was handed down, the SupremeCourt has declined to return to the totality-of-the-circumstances test of voluntariness, or to allow thegovernment to meet its burden without demonstratingcompliance with the Miranda procedure. In Dickerson,the Court rejected a congressional attempt to revivethe former totality-of-the-circumstances test, holdingthat Miranda is "constitutionally based" andreaffirming that it governs the admissibility ofstatements in federal and state courts (Dickerson, 530US at 432). And in Seibert, the Court rebuffed acreative attempt to end run Miranda. Seibertaddressed the question-first-and-warn-later policeprotocol that called for giving a suspect no warnings ofthe rights to silence and counsel until afterinterrogation had produced a confession. At that point,the interrogator would deliver the Miranda warningsand, assuming the suspect waived Miranda rights,repeat the questioning to elicit the information already

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    provided in the prewarning statement. Writing for theplurality, Justice Breyer explained that, under thesecircumstances, the warnings could not function"effectively" as Miranda requires (Seibert, 542 US at611).

    Here, the People acknowledge that a statementmade in the absence of Miranda warnings must besuppressed without regard to the individualcircumstances of the suspect. But they argue thatwhere no interrogation precedes a suspect's Mirandawaiver (unlike Seibert) and Miranda rights are fullyadministered, acknowledged and waived, lawenforcement's statements or conduct prior to thewaiver bear only on the question of whether the waiverwas knowing, voluntary and intelligent under thetotality of the circumstances -- a factual inquiry to bemade on a case-by-case basis.

    But just as no "talismanic incantation [is]required to satisfy [Miranda's] strictures" (Californiav Prysock, 453 US 355, 359 [1981]), "it would be absurdto think that mere recitation of the litany suffices tosatisfy Miranda in every conceivable circumstance"(Seibert, 542 US at 611). "The inquiry is . . . whetherthe warnings reasonably 'convey to [a suspect] hisrights as required by Miranda'" (Duckworth v Eagan,492 US 195, 203 [1989] quoting Prysock, 453 US at361). Thus in Seibert, the issue was whether, in lightof the protocol employed by the police in that case, "thewarnings [could] effectively advise the suspect that hehad a real choice about giving an admissiblestatement" (Seibert, 542 US at 612).

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    Here, there is no claim that the Mirandawarnings themselves failed to apprise Dunbar andLloyd-Douglas of their rights. The issue, as in Seibert,is whether a standardized procedure -- there, thequestion-first-and-warn-later protocol; here, thepreamble -- effectively vitiated or at least neutralizedthe effect of the subsequently-delivered Mirandawarnings. We agree with the Appellate Division thatthe preamble, which is at best confusing and at worstmisleading, rendered the subsequent Mirandawarnings inadequate and ineffective in advisingDunbar and Lloyd-Douglas of their rights.

    Before they were read their Miranda rights,Dunbar and Lloyd-Douglas were warned, for all intentsand purposes, that remaining silent or invoking theright to counsel would come at a price -- they would begiving up a valuable opportunity to speak with anassistant district attorney, to have their casesinvestigated or to assert alibi defenses. Thestatements to "give me as much information as youcan," that "this is your opportunity to tell us yourstory" and that you "have to tell us now" directlycontradicted the later warning that they had the rightto remain silent. By advising them that speakingwould facilitate an investigation, the interrogatorsimplied that these defendants' words would be used tohelp them, thus undoing the heart of the warning thatanything they said could and would be used againstthem. And the statement that the prearraignmentinterrogation was their "only opportunity" to speakfalsely suggested that requesting counsel would causethem to lose the chance to talk to an assistant districtattorney.

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    In sum, the issue in these cases is not whether,under the totality of the circumstances, thesedefendants' waivers were valid, but rather whether ornot they were ever "clearly informed" of their Mirandarights in the first place, as is constitutionally required. We agree with the Appellate Division that they werenot: the preamble undercut the meaning of all fourMiranda warnings, depriving Dunbar and Lloyd-Douglas of an effective explanation of their rights. Certainly, if the Miranda warnings were preceded bystatements that were directly contrary to thosewarnings (e.g., you are required to answer ourquestions; your statements will be used to help you;you are not entitled to a lawyer) there would be noneed to examine the totality of the circumstances todetermine if a Miranda waiver was knowing, voluntaryand intelligent. The preamble did the same thing,albeit in an indirect, more subtle way. While a lawyerwould not be fooled, a reasonable person in thesedefendants' shoes might well have concluded, afterhaving listened to the preamble, that it was in his bestinterest to get out his side of the story -- fast.

    Finally, the People did not ask us to review theAppellate Division's rulings that the improperadmission of the videotaped interviews were notharmless beyond a reasonable doubt. We therefore donot reach and express no opinion about this issue. Accordingly, the orders of the Appellate Divisionshould be affirmed.

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    People v Jermaine Dunbar, People v Collin Lloyd-Douglas

    No. 169 and 170

    SMITH, J.(dissenting):

    The purpose of Miranda is to be sure thatsuspects are informed of their rights and understandthem. That purpose is not undermined when police orprosecutors persuade a properly-informed suspect towaive his or her rights. I think that is all thathappened here, and I would hold that defendants'statements need not be suppressed.

    The central holding of Miranda is that, before asuspect in custody is questioned, "[T]he followingmeasures are required":

    "He must be warned prior to anyquestioning that he has the right toremain silent, that anything he says canbe used against him in a court of law,that he has the right to the presence of anattorney, and that if he cannot afford anattorney one will be appointed for himprior to any questioning if he so desires"

    (Miranda v Arizona, 384 US 436, 479 [1966]).

    The Supreme Court also said in Miranda:

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    "The defendant may waive effectuation ofthese rights, provided the waiver is madevoluntarily, knowingly and intelligently"

    (id. at 444).

    It is undisputed that both these defendantsreceived proper Miranda warnings and agreed toanswer questions. I do not argue that that ends thematter. Of course Miranda would be violated if theState had, as in Missouri v Seibert (542 US 600[2004]), trapped defendants into telling their storybefore they heard their rights. And I agree with themajority that it would also be violated if the warningswere accompanied by statements that were directly orindirectly contrary to the warnings (majority op at 15). But no such statements were made here. There isnothing in the preamble that the Queens DistrictAttorney's office affixed to the warnings that expresslyor impliedly contradicts the warnings themselves. Noreasonable person in the position of either of thesedefendants would conclude from the preamble that hedid not have a right to remain silent; that anything hesaid could not be used against him; that he was notentitled to a lawyer; or that the State would notprovide him a lawyer free of charge.

    I admit that the wording of the preamble is notperfect. Its third sentence -- "If there is something youneed us to investigate about this case, you have to tellus now so that we can look into it" -- is unhappilyphrased; I wish the word "please" had replaced thewords "you have to." But that change would notsignificantly alter the substance o


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