People v. Johnson

• Decision Date: 19 December 1979
• Citation: 48 N.Y.2d 565,399 N.E.2d 936,423 N.Y.S.2d 905
• Parties: , 399 N.E.2d 936 The PEOPLE of the State of New York, Respondent, v. Edward JOHNSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 905

423 N.Y.S.2d 905

48 N.Y.2d 565, 399 N.E.2d 936

The PEOPLE of the State of New York, Respondent, v. Edward JOHNSON, Appellant.

Court of Appeals of New York.

Dec. 19, 1979.

Noel Tepper and Robert M. Schwartz, Poughkeepsie, for appellant

John R. King, Dist. Atty. (Bridget R. Rahilly, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT

JONES, Judge.

The question posed by this appeal is whether, after a request for counsel has been made by a suspect in custody, his consent to a warrantless search of his premises may be obtained by a request immediately addressed to him in the absence of counsel. We hold that a consent so obtained is unavailing.

Acting on information from participants in an ongoing series of thefts of building materials, Deputy Sheriff Price of the Dutchess County Sheriff's Department went to defendant's premises about 6:30 in the early evening of August 26, 1975. On ascertaining defendant's identity the officer advised him that he was under arrest for grand larceny, handcuffed him and placed him in the back seat of the police car. Price read defendant his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 from a card the officer carried, each of which defendant said that he understood. Another officer present at the scene testified that after Price had advised defendant that he had the right to speak to a lawyer defendant responded: "You're damn right, I'm going to have a lawyer." About 7:00 p. m. another officer, Sergeant Fikar, who apparently was in charge of the investigation, arrived and inquired whether defendant had been given his Miranda rights. When advised that he had been, Fikar, who saw building materials on his premises, asked defendant, "where did all this stuff come from", whereupon defendant said that he wanted to talk to his attorney before making any statement. Fikar ceased questioning about the crime but asked defendant if he minded if he looked around, and defendant said "no", adding, "I have nothing to hide". The sergeant asked defendant to sign a consent to search form; when defendant agreed to do so the officer produced a form which defendant signed after having been twice told that he had the right not to do so. The form contained a statement that the signer had been informed of his constitutional right not to have a search made without a search warrant and to refuse to consent to such a search. Thereafter, at Fikar's request defendant opened various buildings on his property which, when searched by the several police officers who by then had come on the premises, produced a quantity of stolen building materials. After the initial search of the three buildings, defendant again expressed his desire for an attorney and informed the officers who his attorney was. Defendant was then permitted to telephone the attorney. Shortly thereafter the attorney arrived on the scene but voiced no objection to the search.

After a hearing on defendant's motion to suppress the materials recovered at his premises County Court denied the motion, finding that under the criteria set forth in People v. Gonzalez, 39 N.Y.2d 122, 383 N.Y.S.2d 215, 347 N.E.2d 575 a consent to the search had been freely and voluntarily given by defendant. Defendant thereupon pleaded guilty to grand larceny in the second degree. On appeal the Appellate Division affirmed the conviction, without opinion. We now reverse.

We perceive no basis for differentiation with respect to the constraint imposed on the police by a defendant's request for an attorney between their thereafter obtaining a statement from him and their thereafter obtaining his consent to a warrantless search of his premises. As we noted in People v. Grant, 45 N.Y.2d 366, 408 N.Y.S.2d 429, 380 N.E.2d 257, the Supreme Court in Miranda...