1.4 - 1. Investigatory Lineups

• Jurisdiction: New York

1. Investigatory Lineups

No right to counsel exists at an investigatory lineup where counsel could only play a very limited role. But where counsel has learned of a pending investigatory lineup and has clearly expressed to police a desire to be present at the lineup, he must not be excluded and must be allowed a reasonable time to appear, although an adjournment of the lineup is not required. However, law enforcement has no duty to notify counsel in advance of an investigatory lineup or obtain counsel for an indigent suspect, even if he requests representation at the lineup.⁹ However, if the officials conducting an investigatory lineup are aware that the suspect is represented by counsel, and the suspect requests his presence at the lineup, an attempt must be made to contact the suspect’s attorney and afford him an opportunity to appear.¹⁰ Focus is on the temporal proximity of the lineup to the crime. Have weeks passed such that a prompt lineup outweighs the value of counsel’s presence?¹¹

The Fourth Amendment forbids law enforcement from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest¹²—absent exigent circumstances.¹³ It is a fact-specific phenomenon. A Fourth Amendment violation does not require the suppression of otherwise voluntary statements made by a suspect in custody after he and the police have left his home—according to the Supreme Court. The Court of Appeals holds that suppression of these statements is required under article I, § 12, of the New York State Constitution.¹⁴ It rejects the notion that the same state constitution requires suppression of lineup-identification evidence obtained after an arrest based upon probable cause, but without a warrant, in a suspect’s home.¹⁵

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Notes:

^[9] . People v. Hawkins, 55 N.Y.2d 474, 450 N.Y.S.2d 159 (1982); People v. Hernandez, 70 N.Y.2d 833, 835, 523 N.Y.S.2d 442 (1987); People v. Cunningham, 116 A.D.2d 585, 586, 497 N.Y.S.2d 442 (2d Dep’t 1986); People v. Robertson, 109 A.D.2d 806, 486 N.Y.S.2d 321 (2d Dep’t 1985); People v. Jones, 140 A.D.2d 372, 527 N.Y.S.2d 716 (2d Dep’t 1988); People v. Aufiero, 139 A.D.2d 656, 527 N.Y.S.2d 431 (2d Dep’t 1988); People v. LoPizzo, 151 A.D.2d 614, 543 N.Y.S.2d 88 (2d Dep’t 1989).

^[10] . People v. Coates, 74 N.Y.2d 244, 544 N.Y.S.2d 992 (1989); see also People v. LaClere, 76 N.Y.2d 670, 673, 563 N.Y.S.2d 30 (1990) (The Court of Appeals rejected the argument that Coates established a sine qua non...