PA Supreme Court: Anticipatory Invocation of Miranda Subject to Temporal Test

In Commonwealth v. Bland, 2015 Pa. Lexis 1128, the Pennsylvania Supreme Court held that to require a suspension of questioning by law enforcement officials subject to the exclusionary remedy, an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation.   In other words, a defendant may not decline to be interviewed in anticipation of police questioning, even if he is in police custody.  Here is the initial primer on an individual’s Miranda-based rights.

In the 3-1 plurality decision, which will not be binding on future courts as the Court continues to be undermanned due to the departures of Justices Castille and McCafferty, the plurality maintained that invocation of the right to silence must be closely linked to a custodial interrogation.  Although not binding, this case remains highly instructive.

The defendant allegedly shot and killed his victim before fleeing to his mother’s house in Florida.  After learning about his whereabouts, Philadelphia Police issued an arrest warrant for Bland and arranged for him to be extradited from the Sunshine State.  A day after he was arrested by Florida law enforcement, but before he was removed to Pennsylvania,  Bland’s father contacted the Defender Association of Philadelphia.  Attorneys for the Defender Association sent a form letter via fax asking that Bland sign and return the document.  According to Chief Justice Saylor, “[t]he letter reflected a very clear putative invocation of the Miranda-based right to counsel.”  The letter read in pertinent part:

PLEASE BE ADVISED THAT I … DO NOT WISH TO SPEAK WITHOUT AN ATTORNEY PRESENT.  I WISH TO BE REPRESENTED BY A LAWYER. UNTIL SUCH TIME AS I HAVE AN OPPORTUNITY  TO FULLY DISCUSS THE DETAILS OF MY CASE WITH MY LAWYER …, I STATE THE FOLLOWING TO YOU:

I DO NOT WISH TO BE QUESTIONED OR HAVE ANY DISCUSSION WITH THE POLICE.

I DO NOT WISH TO SPEAK TO YOU WITHOUT MY ATTORNEY PRESENT.

I WILL NOT WAIVE OR GIVE UP ANY OF MY RIGHTS UNDER MIRANDA V. ARIZONA, NOR WILL I GIVE UP ANY OF MY PENNSYLVANIA OR FEDERAL CONSTITUTIONAL RIGHTS EITHER ORALLY OR IN WRITING WITHOUT THE PRESENCE OF MY LAWYER.

After Bland signed and returned the document, the Defender Association sent copies to the Philadelphia Police Department and to the Philadelphia District Attorney via fax.

Once in Philadelphia Police custody and six days after signing the form, a Philadelphia police detective provided Bland with standard Miranda warnings and proceeded to question him.  At this point, Bland ultimately confessed to the killing, and provided a written statement confirming his guilt.

After Bland was charged with murder, firearms violations, and several related offenses, the Defender Association was formally appointed as his counsel and subsequently moved to suppress the written statement, claiming that police had violated his right against self-incrimination.  The trial court suppressed the written confession;  thereafter the Commonwealth filed an interlocutory appeal and a divided Superior Court panel affirmed the decision in a memorandum decision.  Pennsylvania Supreme Court Justice Stevens, who was at that time the President Judge of the Superior Court, dissented.  Because he was involved in the Superior Court’s opinion, Justice Stevens abstained from participating in the case when it reached the higher court, a standard practice.

The Pennsylvania Supreme Court accepted review to answer the question about whether an individual could anticipatorily invoke his or her rights prior to custodial interrogation. In summary, the crux of the matter was whether Miranda could be preemptorily invoked absent an attempt by law enforcement to question a suspect.

Chief Justice Saylor emphasized that the United States Supreme Court has sent “a plain signal” that the Miranda-based right to counsel is only precipitated as a counterbalance to the coercive environment of custodial interrogation. Because this is the case Chief Justice Saylor found that a valid invocation of Miranda must be made “in close temporal proximity to the circumstances giving rise to the relevant concern.”  In other words, the Fifth Amendment only prohibits compelled self-incrimination, but not self-incrimination more generally.   Despite the fact that interrogation was inevitable under these facts, the plurality justices asserted that both suspects and police are deserving of “bright-line rules” in the custodial interrogation context.  According to the plurality justices, under relevant Supreme Court precedent, “custody” was different in function and form from “custodial interrogation.”   Additionally, the plurality Justices believed that a “cost-benefit” assessment of the defendant’s burden of invoking his or her right in “close temporal proximity” to custodial interrogation–even where interrogation was inevitable–was outweighed by “legitimate law enforcement objectives.”

Justice Baer, while joining the opinion in full, concurred only to state that he was concerned about the “gamesmanship” employed by the Defender Association, alluding to the consequences of either law enforcement or the defendant attempting to “trivialize” constitutional rights.

In her dissent, Justice Todd stated that she believed that the defendant’s written request to the Philadelphia Police explicitly stating that he did not wish to be questioned by officers without the assistance of an attorney, made after he was taken into custody by Florida law enforcement pursuant to a murder charge lodged by the Philadelphia Police, to be a valid invocation of Miranda.  Unlike the plurality opinion, Justice Todd would have found that Edwards v. Arizona, 451 U.S. 477 (1981), created a bright-line rule unaffected by stray statements and a footnote in later cases that the majority found compelling.  In Edwards, the United States Supreme Court held that police may not interrogate an individual being held in custody who has requested the assistance of counsel.   Justice Todd also pointed to language in the Miranda decision itself that a request for counsel made “at any stage” of the process must be honored by police.

The Court’s decision is a blow for the rights of criminal defendants, and a step back from the broad based protective rights formerly afforded to defendants in the Miranda context.   Allowing the passage of time in a custodial environment to, in effect, “purge” a clear, express invocation of one’s Miranda-rights cuts against the grain of the most central principle of Miranda–an individual should not be compelled through manipulative police tactics to incriminate himself where he or she has asked for legal representation.  In Bland, the plurality Justices state their willingness to burden an overmatched and unwitting defendant with properly invoking their right at a specific time and through a specific method for the furtherance of unnamed, vague “legitimate law enforcement objectives.”  What Justice Baer calls “gamesmanship,” another may call “evening the odds” in anticipation of coercive police questioning that will stack the deck in favor of the Commonwealth and all but defeat the defendant’s constitutional rights.

The question of “close temporal proximity” is going to raise more questions than it does answers and will undoubtedly spur future litigation.  Will this case only be predictive of cases where a defendant must be extradited from another jurisdiction? Is the Court more concerned with the timing (6 days in advance) or with the form (via fax)?  It is likely that these matters will continue to be at the forefront for the foreseeable future, and quite possible that the United States Supreme Court takes up the matter of anticipatory invocation of Miranda for the first time.