People v. Pounds

• Decision Date: 11 May 1970
• Citation: 64 Misc.2d 634,315 N.Y.S.2d 672
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Donald POUNDS and Charles Shuman, Defendants.
• Court: New York Supreme Court

Page 672

315 N.Y.S.2d 672

64 Misc.2d 634

The PEOPLE of the State of New York, Plaintiff, v. Donald POUNDS and Charles Shuman, Defendants.

Supreme Court, Criminal Term, Kings County, Part II.

May 11, 1970.

Eugene Gold, Dist. Atty., Angelo Barra, C. Joseph Hynes, Asst. Dist. Attys., for the People.

William Kerwick, Jamaica, for defendant Pounds.

Arnold Roseman, New York City, for defendant Shuman.

MEMORANDUM DECISION

THOMAS R. JONES, Justice.

This Court conducted a Morales type (396 U.S. 102, 90 S.Ct. 102, 24 L.Ed.2d 299) or Huntley type (15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179) hearing beginning February 17th, 1970, for a period of about ten days to determine whether the confessions of both these defendants were the inadmissible fruit of an illegal detention, and whether with respect to both of the defendants their confessions were voluntarily made to the police.

Alex Chefetz was bound, gagged and died in his apartment at 275 Kosciusko Street, in Brooklyn, on May 5th, 1969. He had apparently been robbed. The police began their investigation, and on May 22nd, 1969, two detectives went to the apartment of Mrs. Bernice Banks at 272 Tompkins Avenue and gained admission. They asked Mrs. Banks for the defendant Donald Pounds under the name of 'Smokey', and for the defendant, Charles Shuman, under the name of 'Charles'. Although Shuman was present in the apartment at the time he did not respond to the name of 'Charles' or 'Charlie', by which he was known.

The defendant Pounds was asleep in the bedroom and emerged when called into the room where the police were. Then the police entered Pounds's bedroom, watched him dress, and took him to the main squad room of the precinct for interrogation.

From the time the police entered Pounds' bedroom until he confessed his part in the robbery of Alex Chefetz, Pounds was in their custody and under their control.

The defendant, Shuman, went to the precinct station voluntarily after telling his hostess, Mrs. Bernice Banks, something to the effect that 'I can't be running all my lefe. I'm too young for that.'--(Pounds at Page 202 of the record.) When Shuman arrived at the precinct station, he also confessed his role in the robbery of Alex Chefetz after being warned in accordance with Miranda. There was some testimony about Mrs. Banks' effort to talk with Shuman at the precinct station without success, and the defendant's attorney argues that Shuman had been held incognito by the police. A brief comment will be made concerning these events in short order. I find, however, that Shuman was given the Miranda warnings, understood them and voluntarily confessed the crimes. I find, however, that the police obtained the preliminary incriminating information about Shuman from the tainted source which was their illegal custodial interrogation of Pounds; that their interrogation of Shuman was guided and confirmed by the statements which they had elicited from the defendant Pounds.

These criminal proceedings began with what this Court characterizes as a lawless seizure of the person of the defendant Pounds from his bed in the house of his friend, Mrs. Banks, on May 22nd, 1969. The police detectives were then investigating the murder of an old man in the neighborhood. They did not know nor had they any cause to believe that Pounds was implicated in the slaying when they confronted him in the apartment of his benefactor. The record supports the finding in this regard. On more than one occasion the police said they did not know that Pounds or Shuman were involved in the slaying of the unfortunate victim, Chefetz, when they confronted them in the Bank's apartment.

At the time of his detention Pounds was 18 years of age, of dull normal intellect, with only a third grade reading ability. This intellectually limited youth was ordered by the police officers to get dressed and accompany them to the precinct station. They watched him dress, and then removed him in close confinement to their headquarters where he confessed his involvement in the crime, an hour or two later.

The testimony of Pounds' school grade adviser, Mrs. Kimper, and of the psychiatrist, Dr. Glozek, reveals that Pounds was below average intelligence. While Dr. Glozek believed that he was able to comprehend most of the words which were said to him in respect of the socalled Miranda warnings, some of them, she indicated, he could not have understood. This Court finds that the police had no right or authority to remove Pounds from his bed and home and to keep him in close custody and to question him as they did, lacking probable cause to believe that he had committed a crime.

It would be idle fantasy to assume that such an ignorant youth, a product of a lowly environment, could understand, even when told, that he possessed the privilege against self-incrimination. As Mr. Justice Douglas observed in his concurring opinion in Culombe v. Connecticut, 367 U.S. 568, at page 641, 81 S.Ct. 1860, at page 1899, 6 L.Ed.2d 1037: 'The system of police interrogation under secret detention falls heaviest on the weak and the illiterate--the least articulate segment of our society.' The Supreme Court of the United States in Morales v. State of New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299, rejected the view that the Fourth Amendment to the Constitution permits custodial interrogation or arrest on less than probable cause, as was suggested by Mr. Justice Sobel in People v. Estrialgo, 37 Misc.2d 264 at page 274, 233 N.Y.S.2d 558 at page 569, and returned that case to the New York Trial Court to adduce evidence on probable cause. Even though the defendant belatedly raised the Fourth Amendment argument for the first time at the level of the Court of Appeals in Brinegar v. United States, 338 U.S. 160 at pages 175--176, 69 S.Ct. 1302, at pages 1310--1311, 93 L.Ed. 1879, the Court declared, "The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' And this 'means less than evidence which would justify condemnation' or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Since Marshall's time, at any rate, it has come to mean more than a bare suspicion: Probable cause exists where 'the facts and circumstances, within the officers' knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790.

'These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.'

What circumstances justify detention for questioning? 'Detention for questioning has its manifest evils and dangers,' said the Court in People v. Morales, 22 N.Y.2d 55 at pages 64, 65, 290 N.Y.S.2d 898 at page 907, 238 N.E.2d 307 at page 316. 'A suspect may be detained upon reasonable suspicion for a reasonable and brief period of time for questioning under carefully controlled conditions protecting his Fifth and Sixth Amendment rights. * * * The scope of the authority to question is limited to those persons Reasonably suspected possessing knowledge of the crime under investigation in circumstances involving crimes presenting a high degree of public concern affecting the public safety.' (Emphasis supplied.)

When is detention allowed for questioning? In Miranda v. Arizona, 384 U.S. 436, at page 477, 86 S.Ct. 1602, at page 1629, 16 L.Ed.2d 694, the Court said: 'General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.' In other words, the police are expected to seek witnesses and ask questions, and that pertains basically to on-the-scene interrogation. The scene changes, of course, when they take a person into custody. A person is in custody when 'the situation' confronting him (that is, the person taken into custody) 'is instinct with coercion, said the Court in Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. To satisfy the Federal and State constitutional requirements, to meet the standards of the Fourth Amendment, the seizure of the person can only be, on probable cause. Just as search warrants issued in the absence of probable cause have been voided and the article seized suppressed, so should the unwarranted seizure of a human being be disallowed, and any statements made or information elicited from him thereafter must be suppressed, in order that we may comply with the United States Constitution and maintain a decent respect for the law. Before the police may take a person into custody or arrest him, it must be shown that a crime has been committed and they have reasonable cause to believe that the person under their control committed it. The police have the authority to stop a person and demand an explanation of his actions, if they reasonably suspect he was committing, had committed or was about to commit a felony. This is in accordance with Section 180 of the Code of Criminal Procedure. But, they may not...