United States vs Burke case - Essay Example

Essay While walking a foot patrol, PO Charles Brown and his partner, PO Schroeder are approached by a woman, d Peppermint Patty, who tells them that her boyfriend, Linus Van Pelt, just beat her up and threatened to kill her. She then tells the police that he has drugs and guns in the apartment. The police asked her where her boyfriend was and she told them, "He's home, come with me." Patty takes the officers to a building three blocks away and brings them to an apartment. The police officers knock on the door and another woman answer the door. The police ask if Linus is home and the woman says that he just went to the store to get a pack of cigarettes. The police ask if they can come in and the woman says yes. While they are in, Patty tells the police officers that the woman is Linus's sister. Lucy. PO Brown asks Lucy if Linus keeps drugs and guns in the house. Lucy says, "I never saw any guns or drugs." PO Schroeder says, "So if I looked around I wouldn't find anything illegal here" Lucy tells him that would be true. The police officers then remove the cushions from the couch and find two .38 caliber revolvers. They open a hallway closet and find three bags of cocaine hidden under some sheets and towels. Linus returns home and he and his sister are arrested. The defendants make a motion to suppress the evidence recovered from the apartment. Discuss the search and seizure issues involved and decide the motion. In United States v Burke (1963, DC Mass) 215 F Supp 508, affd (CA1 Mass) 328 F2d 399, cert den 379 US 849, 13 L Ed 2d 52, 85 S Ct 91, reh den 380 US 927, 13 L Ed 2d 815, 85 S Ct 902, a prosecution for mail robbery and conspiracy to rob the mails, it was held that the consent of the accused's landlady did not justify the warrantless search of the accused's apartment. The evidence disclosed that in response to persistent ringing of the doorbell of the accused's apartment, the landlady opened her door, advised the officers that the accused was not at home, and offered to let the officers inspect his room. The evidence further disclosed that the officers searched the room, ascertained that the accused was not present, and observed a postal uniform jacket, but left the room without seizing it. The court held that the search was illegal since the officers had neither a search warrant nor probable cause to arrest the accused. Denying the accused's motion to suppress various items of evidence, however, the court stated that since the officers at the time of the search already knew that the accused had recently acquired a letter carrier's uniform, no new evidence was discovered during this illegal search, so that the "fruit of the poison tree" doctrine had no application to the search. In United States v Paroutian (1962, CA2 NY) 299 F2d 486, the warrantless search of the accused's apartment was held to be invalid, and a subsequent seizure of narcotics and a letter based upon information discovered in the search, were held to be inadmissible against the accused, where the only authority the officers had for conducting the search was the apparent consent of the agent of the owner of the apartment building. The evidence disclosed that the agent accompanied the officers while they conducted the search, and that the accused was not in the residence at the time. Noting that it was unclear whether the accused had paid the rent for the month in which the search was conducted, the court stated that at the time of the search there was no indication that the accused did not intend to return to the apartment. Noting that the landlord made no efforts to evict the accused until several weeks after the search, the court stated that the accused was legitimately on the premises and was entitled to invoke the right of privacy guaranteed by the Fourth Amendment. Here, neither Peppermint Patty nor Lucy had the authority (at least on these facts) to allow the police into Linus' apartment to search the premises. Any evidence found as a result of the illegal search in the apartment must be suppressed. Essay #2 At a party celebrating his release from prison after serving 7 years for grand larceny, Barney Rubble sees the lawyer who represented him at his trial, Fred Flintstone. After greeting each other, Fred tells Barney that he wishes he could have done a better job for him. Barney tells Fred that he was a good lawyer and "I would definitely use you again." Fred asks Barney how he is managing and if he has a job. Barney tells Fred "Well, I'm working on something now that should take care of all my money problems, but I can't tell you what it is right now. Three weeks later, Barney is arrested for counterfeiting. At Barney's trial, the DA wants to use the conversation between Barney and Fred against Barney. Barney is now represented by another attorney who objects to the evidence on attorney-client privilege. Discuss the issues involved in ruling on the objection. How should the court rule on the objection A privileged communication between attorney and client can take any form-conversation, writing or gesture. Matter of Vanderbilt, 57 N.Y.2d 66 (1982). The privilege, however, generally does not encompass an attorney's observations about the client such as the client's demeanor and mental capacity that would be ascertainable by anyone. People v. Kinder, 126 A.D.2d 60 (4th Dep't 1987). Furthermore, the privilege does not immunize the underlying factual information that the client may have communicated to the attorney. Spectrum Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371, 377 (1991). In other words, a client need not reveal what he told his lawyer in confidence about an event, but he can be compelled to testify to his knowledge of the event. Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981). Similarly, facts learned by the attorney from independent sources ordinarily are not within the attorney-client privilege, even if the attorney communicates the facts to the client. Kenford Co. v. County of Erie, 55 A.D.2d 466, 469 (4th Dep't 1977). In New York, the privilege encompasses not only confidential communications from client to attorney but also from attorney to client, provided they are made "for the purpose of facilitating the rendition of legal advice or services." Rossi v. Blue Cross and Blue Shield of Greater New York, 73 N.Y.2d 588, 593 (1989). Furthermore, an attorney's legal advice to the client can qualify for privileged treatment even if it incorporates or recites facts that were obtained from third parties or other non-privileged sources. Spectrum Systems International Corp. v. Chemical Bank, 78 N.Y.2d 371, 379 (1991). Facts relating to the client's engagement of counsel usually fall outside the scope of the privilege for the reason that they do not constitute confidential communications. Hoopes v. Carota, 74 N.Y.2d 716 (1989). Thus, the fact that an attorney was consulted (DiBella v. Hopkins, 403 F.3d 102, 120-21, 66 Fed. R. Evid. Serv. 1104 (2d Cir. 2005) (under New York law, attorney's time sheet showing method of attorney-client communication (e.g., phone or in person) is not within privilege), and the amount of the fee are not protected. Priest v. Hennessy, 51 N.Y.2d 62, 69, (1980). Similarly, various considerations have produced a general rule that the identity of the client is not privileged: identity ordinarily is neither a confidential communication nor relevant to the obtaining of legal advice; knowledge of identity is necessary to ensure the existence of a bona fide attorney-client relationship; and litigants have a right to know who their opponents are. In re Jacqueline F., 47 N.Y.2d 215, 219-20 (1979). Applying the conclusions from the foregoing cases to the facts presented concludes that there is no attachment of privilege between Fred and Barney and therefore defense counsel's motion will be denied. Essay #3 While walking home from the grocery store, Max Klinger is accosted by an individual at the corner of Elm Street and Pine Avenue. The individual asks Max for the time. As Max looks at his watch, the individual grabs Max's wrist and thrusts a sharp object into Max's side. "Don't say anything and you won't get hurt," the individual says. Max struggles and pushes the individual away from him causing the individual to fall. Max sees two policemen having lunch in a local pizza shop and runs in to tell the policeman what happened. As he enters the pizza shop, he slips and hits his head against the counter falling unconscious. The individual gets away. The policemen, PO Ben Pierce and his partner, PO John McIntyre, call for an ambulance which arrives within 10 minutes. Max gains consciousness on the way to the hospital and grabs the EMS technician and says in a worried voice, "He tried to take my watch. He had me at knifepoint. He wore a Black Sabbath t shirt. I pushed him away. He fell on his knife." Max then went unconscious again. Meanwhile, at the hospital emergency room, an individual wearing a Black Sabbath T shirt shows up with a stab wound to his side. The T shirt has blood stains on it. The individual tells the triage nurse, Margaret Houlihan that his name is Frank Burns and that he was in a fight at the corner of Elm Street and Pine Avenue, and got stabbed. Ms. Houlihan admits him right away and a surgeon is called to tend to the wound. He repeats what he told the nurse to the surgeon, Dr. Winchester. While Frank is recuperating in the ER after his wound is closed by Dr. Winchester, the ambulance with Max arrives and Max is placed on a bed down the row from Frank. PO Pierce is present, ready to interview Max when he gains consciousness. Dr. Winchester comes over to Max and asks the EMS technician, BJ Hunnicut, what the situation is. "Guy says a man tried to rob him. When he went for help he fell and hit his head against a pizza counter. He was unconscious when we got there but gained consciousness a few minutes ago and then went unconscious again." After an examination which includes a CAT scan, Dr. Winchester tells PO Pierce and Mr. Hunnicut that Max is bleeding into his brain and he must perform an emergency procedure to relieve the pressure, if Max is going to have any chance to survive. As Dr. Winchester is performing the procedure, PO Pierce asks Ms. Houlihan who is in the bed down the row. She tells him, "Oh, just someone who was in a fight on Elm and Pine. Got stabbed. But he's OK." PO Pierce asks Houlihan if the stabbing patient came in with a Black Sabbath T Shirt. When she says yes, he goes over to the bed and sees the chart says, "Frank Burns." PO Pierce gets a hospital smock and face mask and walks over to Burns. Burns wakes up and sees Pierce but does not recognize him as a police officer because of how he is now dressed. Pierce picks up Burn's chart and says, "Wow, that was pretty touch and go there for a while. How are you feeling" Burns says he feels OK but tired. Pierce asks Burns about the incident telling him that he needs to know. Burns thinks Pierce's inquiries have to do with his continued treatment so he tells him everything, including the attempted robbery. Later that evening, Max gains consciousness and tells PO Pierce everything about the incident. "I thought I was going to die." he said. Burns is indicted and tried for attempted robbery. The DA seeks to introduce all the above statements into evidence. Discuss the admissibility or inadmissibility of the statements. The statements made by complainant to the hospital doctor are admissible under the "business records" exception to the hearsay rule (CPLR 4518) since such statements were made for the purposes of complainant's treatment. The New York "business records" exception to the hearsay rule, codified in CPLR 4518 (a), is applicable to both criminal and civil cases. (See, People v Howard, 79 AD2d 1064 (3d Dept 1981)". CPLR 4518 (a) provides that: "any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter ... The term business includes a business, profession, occupation and calling of any kind." A statement contained in a hospital record is admissible under the "business records" exception, if that statement is germane to the medical diagnosis or treatment of the patient. In Williams v Alexander (309 NY 283, 287), the Court held that since the "business of a hospital ... is to diagnose and treat its patients' ailments ... the only [statements that may fall within this exception" are those reflecting acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of [the particular patient's" hospitalization". Consequently, an entry in a hospital record containing a witness' statement of the details of the accident which produced his or her injury, but which has no bearing upon diagnosis or treatment, is not admissible under CPLR 4518 as it is not considered as having been made in the regular course of the hospital's business. Williams v Alexander, 309 NY 283, 287 (1955). Courts have held that the statements regarding the manner in which an injury was inflicted may come within the "business records" exception to the hearsay rule. In Williams v Alexander, 309 NY 283, 288 the court found that "(I)n some instances, (the witness') explanation as to how he was hurt may be helpful to an understanding of the medical aspects of his case; it might, for instance, assist the doctors if they were to know that the injured man had been struck by an automobile. In Taragan v Abbott Labs. (NYLJ, Mar. 27, 1992, at 22, col 1, supra), the court distinguished between the patient's statement that "his leg was injured when he was hit by a car", which would be admissible if necessary and useful for treatment, and the patient's additional statement that "the car was a red BMW that had gone through a light", which would be excludable. The court wrote (at 22, col 2) that "[w"hen a doctor asks a patient for a history, he or she does not do so to pry or to strike up a friendship. The purpose is to make the doctor aware of the patient's past medical problems and medically relevant experience and thus guard against any risks the patient may be running in light of the history1. Here, because "PO Pierce gets a hospital smock and face mask and walks over to Burns. Burns wakes up and sees Pierce but does not recognize him as a police officer because of how he is now dressed", it cannot be said that the statements made by the patient constitute an exception to the hearsay rule due to the deception portrayed by Pierce. Accordingly, the evidence will be suppressed. Essay #4 Jack and his brother, Bobby, are in the Dew Drop Inn, a local tavern, celebrating Jack's promotion at work. With them is Jack's best friend, Martin. After eating and drinking at the tavern for five hours, Jack says to Bobby and Martin, "Let's have a night cap and call it quits." Bobby yells over to the bartender, "Hey, Abe, three more beers over here." The bartender serves the three men their drinks. Jack throws a bill on the bar to pay for the last round. Abe takes the and puts .00 on the bar as change. Martin excuses himself to go to the bathroom. While Jack and Bobby are waiting for Martin, a large guy named Nicky comes over to the bar and takes the .00 that was Jack's change. Jack tells Nicky, "Hey buddy, that's my change." Nicky tells Jack he's mistaken. He states that the money is actually his change. Bobby tells Nicky, "Hey, just put the money down, pal. It's my brother's." Nicky ignores them and begins to walk away. Jack runs after him and with his hand on Nicky's shoulder, spins Nicky around and grabs the money which is still in Nicky's hand. Nicky pushes Jack away and Jack falls to the floor. Bobby then grabs Nicky and pushes him. Jack then takes an umbrella which is leaning against the bar and hits Nicky on the head with it while Bobby grabs the .00. Just Jack and Bobby run out the door, Martin comes out of the bathroom and, not seeing his friends, asks what happened. Nicky says, "Those two guys are your friends They just robbed me of .00." The next day, Jack and Bobby are arrested for assault in the second degree and robbery in the first degree. At the police station, Det. Jones brings Jack into a room alone and tells him, "You know, your brother just told us that you clocked the guy. You might as well tell us what happened." Jack tells the Detective that Nicky took his money from the bar and he tried to get it back. At no time did the detective give Jack his Miranda warnings and at no time had Bobby told the police anything.. At the same time, Det. Smith brings Bobby into another room with three other detectives all wearing shoulder holsters with snub nosed .38 caliber pistols in them. Smith says, "OK Bobby, your brother told us you clocked the guy and took the money. You might as well come clean." Bobby tells the cops that he does not wish to speak with them. Det. Smith tells Bobby, "Listen kid, you see these detectives They didn't come in here to waste time. And you don't want to see a detective who thinks you're wasting his time. Now tells us what we want to know and we'll take care of you. Bobby says, "Alright" and Det. Smith reads him his Miranda rights. After stating he understands them, Bobby tells Det. Smith, "Look, I'll talk to you but I want a lawyer first." Smith says, "Well, you already told us you'd talk to us, so what do you need a lawyer for You're a smart guy. You know your rights. Come on. It'll take hours to get a lawyer here." Bobby thinks for a moment and says, "OK, Let's talk." Bobby then states that Nicky took the money from the bar and that he and Jack thought it was their money so they went to take it back but Jack didn't hit Nicky with the umbrella until Nicky pushed Jack first. At the trial of Jack and Bobby, Bobby testifies that Jack never touched Nicky and never hit him with an umbrella. The DA seeks to use his statement to Det. Smith as a prior inconsistent statement to impeach Bobby. Additionally, the DA calls Martin as a witness and asks him, "Did Nicky say anything to you when you asked where your friends were" Both Jack's and Bobby's lawyers object to this question on hearsay grounds. The objection is overruled and the testimony is allowed as well as the statements of Jack and Bobby to the police. Jack and Bobby are convicted and appeal on the grounds that the statements were illegally obtained and Martin's testimony was inadmissible hearsay. Although the police cannot be expected to prevent an uncontrollably talkative person from making an incriminating statement. People v Rivers, 56 NY2d 476, 479 [1982]), a statement will not be classified as spontaneous merely because it was not made in response to direct or formal interrogation (People v Lucas, 53 NY2d 678, 680 [1981]). It must also not be the product of what is essentially an interrogation or its "'functional equivalent"' (People v Stoesser, 53 NY2d 648, 650 [1981]). Miranda v Arizona (384 U.S. 436) requires that before interrogating a suspect in a custodial setting, the police must advise him of his right to remain silent and of his right to counsel, and then must ask whether he wishes to waive these rights. However, a "waiver of a constitutional right will not be deemed 'voluntary' unless the police have 'scrupulously honored' the suspect's prior assertion of his rights" (People v Cunningham, 49 NY2d 203, 207 [1980]). Initially, it is to be noted that the right to counsel warning given under Miranda is not the equivalent of the Sixth Amendment right to counsel. Rather, the warning is a procedural safeguard derived from the Fifth Amendment. Failure to give that warning or failure to voluntarily and knowingly waive that right after the warning has been given is a per se violation of Miranda and the Fifth Amendment, not the Sixth. Michigan v Tucker, 417 U.S. 433 [1974]). As one commentator noted, "Suppression under the Sixth Amendment, then, arises out of a concern entirely different from that expressed in the Miranda decision. Failure to abide by the right to counsel is not a test of a confession's voluntariness, as it is under the Fifth Amendment; instead the failure is a constitutional violation apart from the confession's voluntariness" (Ringel, Searches & Seizures, Arrests & Confessions 24.4, at 24-11 [2d ed 1987]). "Since the right to counsel standard has nothing to do with voluntariness, it is completely independent of the usual line of inquiry. While the Miranda and voluntariness standards are required to determine the admissibility of every statement submitted for use at trial, the right to counsel standard arises only when the proper set of circumstances is present: attachment of the right to counsel followed by the taking of a statement from the defendant without his waiver of that right, or contrary to the instructions of counsel ... The Miranda 'right' represents a presumption by the Court that confessions are coerced when made in the absence of the advice of counsel. The right to counsel standard under the Sixth Amendment, in contrast, has nothing to do with voluntariness, but is meant to preserve from outside interference the relationship between a defendant and his attorney." (Id., 24.5, at 24-14.). Specific examples will serve to highlight other differences. First the right to counsel attaches by operation of law when an accusatory instrument is filed (People v Samuels, 49 NY2d 218 [1980]); when a suspect requests an attorney (People v Cunningham, 49 NY2d 203 [1980]); when an attorney has entered the proceedings (People v Arthur, 22 NY2d 325 [1968]); and when a suspect has counsel on a pending unrelated matter of which the police are aware or should have become aware (People v Bartolomeo, 53 NY2d 225; People v Bertolo, 65 NY2d 111, supra), to name a few. In each situation, the right to counsel cannot be waived without the attorney's presence, no matter how many times nor how knowingly and voluntarily a suspect waives this right. Thus, a statement taken from a suspect after a full and knowing waiver of Miranda will be suppressed if an attorney had already notified the police that he represents the defendant, even though the statement is as a matter of fact voluntary. However, it is inadmissible by operation of law -- as a violation of the defendant's right to counsel. Moreover, if a defendant, upon being given Miranda warnings, expresses his desire to remain silent, while such right must be respected, the police may attempt to elicit a statement from the defendant after giving fresh warnings. Michigan v Mosley, 423 U.S. 96, 102, 104 [1975]). On the other hand, if that same defendant states that he wishes counsel, then all questioning must stop and any further statements, unless spontaneous, will be suppressed even if the defendant, upon receiving new warnings, talks to the police a few hours later. People v Ferro, 63 NY2d 316, 324 [1984]. Furthermore, for the Miranda or Fifth Amendment safeguards to arise, the defendant must be in custody and be subject to interrogation. Under New York's right to counsel, however, if the defendant has an attorney on the matter for which he is under investigation then even noncustodial interrogation is barred. People v Skinner, 52 NY2d 24 [1980]. Thus the right to counsel operates even in the absence of Miranda, and in no manner hinges on "voluntariness". The Supreme Court has also noted these differences. Rhode Is. v Innis, 446 U.S. 291, 300, n 4 [1980]. Even procedurally there is a distinction recognized by the New York courts. Whereas under the People v Huntley holding (15 NY2d 72 [1965]), which was codified in CPL 710.70, the burden of proving voluntariness beyond a reasonable doubt at both the hearing and trial rests with the People; under People v Rosa (65 NY2d 380 [1985]) it is defendant's burden at the hearing to show he was, in fact, represented by counsel on an earlier charge at the time of interrogation. Here, Bobby's confession took place under circumstances that required the police to read him his Miranda rights as soon as he began talking and therefore they win the appeal. Read More