Judges Opinions, — February 11, 2015 10:00 — 0 Comments

Commonwealth vs. Barrett No. CP-38-CR-762-2014

 

Crimes – Miranda Warnings – Custodial Interrogation – Rhetorical Questions – Independent Source Rule – Doctrine of Inevitable Discovery – Search Warrant – Motion to Suppress Evidence.

The United States Supreme Court declared that before police can conduct a custodial interrogation of a suspect, they must first apprise the suspect of certain constitutional rights. The so-called “Miranda warnings” that resulted from the Supreme Court’s decision have become a part of America’s legal lexicon, and practically every citizen is familiar with the reading of these rights simply from watching television crime dramas.

What is little recognized is that Miranda does not always apply. For example, Miranda does not preclude the admission of spontaneous utterances. Likewise, statements of a defendant made after relatively innocuous police contact are similarly exempt from Miranda.

Only statements responsive to an interrogation are subject to the precepts and penalties of Miranda. Interrogation has been defined as actions by police that are calculated to, expected to, or likely to evoke admission.

When a person’s inculpatory statement is not made in response to custodial interrogation, the statement is classified as gratuitous, and it is not subject to suppression for lack of warnings.

The test for determining whether an interrogation occurred focuses not only upon the subjective intent of the police officer, but also upon the effect of the question upon Defendant.

After a review of the case law on the issue, the Court concluded that Pennsylvania will eventually recognize that rhetorical questions made by police officers during the heat of exigent circumstances do not constitute a custodial interrogation since Pennsylvania appellate courts have already recognized that general conversation attendant with custodial relationship and non-specific general questions do not constitute custodial interrogations so as to require Miranda warnings as a predicate to admissibility. The Court further concluded that even Defendant had to have known that he was not being interrogated by Detective Mong about potential crimes he or others inside the Guilford Street residence committed. Given the above conclusions, the Court refused to suppress the statements made by Defendant in the above-referenced case.

Also known as the independent source rule, the doctrine of inevitable discovery permits a court to admit otherwise tainted evidence when its discovery was inevitable and independent of any police malfeasance.

Since the search warrant in this case was eventually awarded and it included permission for police to search occupants of the Guilford Street residence such as the Defendant, the police would have inevitably learned about the Defendant’s possession of contraband in a manner completely independent of Detective Mong’s encounter with the Defendant. For this reason also, the Court held that Defendant’s request to suppress evidence must be denied.

Defendant’s Pre-Trial Motion to Suppress Evidence. C.P. of Lebanon County, Criminal Division. No. CP-38-CR-762-2014.

Nichole Eisenhart, Esquire, for Commonwealth

Andrew Morrow, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-762-2014

COMMONWEALTH OF PENNSYLVANIA v.

CHRISTOPHER BARRETT

ORDER OF COURT

AND NOW, this 25th day of September, 2014, upon consideration of the arguments of the parties and in accordance with the attached Opinion, the Defendant’s Pre-Trial Motion to Suppress Evidence is DENIED.

Because this Jurist must preside over any further proceedings, and because this Jurist is not scheduled to preside over jury trials until the December term of Court, this case is to be listed for the December term of Court. The Defendant is directed to appear at the Criminal Call of the List scheduled for November 20, 2014 at 8:30 a.m. in the designated courtroom. He is also directed to appear for the first day of Criminal Trials scheduled to commence December 1, 2014 at 8:30 a.m. in the designated courtroom.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES:

Nichole Eisenhart, Esquire, for Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

Andrew Morrow, Esquire, for Christopher Barrett

SPITLER, KILGORE & ENCK

OPINION BY CHARLES, J., September 25, 2014

There are hundreds of Judges in the Commonwealth of Pennsylvania who annually decide tens of thousands of suppression issues. Libraries of decisional precedent exist with respect to suppression issues. Given the sheer volume of suppression-related legal precedent, it would seem unlikely that novel situations would still arise, especially in a relatively small county like our own. Yet we are today confronted with a novel fact pattern for which we have found no specific precedential guidance. We author this Opinion to explain our analysis of this case of first impression.

I. FACTS

On March 11, 2014, officers with the Lebanon City Police Department arrived at the residence of James Larnerd, Jr. located at 510 Guilford Street in the City. A confidential informant reported that crack cocaine and marijuana were trafficked from that residence and that unlawful firearms were located in the residence. In addition to the information provided by the confidential informant, police officers were aware that earlier on March 11, Mr. Larnerd was found on the streets of Lebanon in possession of marijuana.

Detective Ryan Mong was among the first to arrive at the Guilford Street residence. He was granted entry by an individual named Christopher Selby. Upon entering the residence, Det. Mong encountered the Christopher Barrett (hereafter “DEFENDANT”). Det. Mong detained both Mr. Selby and DEFENDANT while other officers traveled to the office of Magisterial District Judge Kim Wolfe in order to obtain a search warrant.

While Det. Mong was keeping DEFENDANT under surveillance, he attempted to obtain biographical information from DEFENDANT. DEFENDANT immediately ran away and proceeded up the stairs to the second floor area of the residence. Det. Mong followed DEFENDANT. A struggle ensued. Eventually, Det. Mong and another officer were able to subdue the physically larger DEFENDANT. He was then placed in handcuffs.

As DEFENDANT was subdued, Det. Mong described himself as surprised, out of breath, and feeling pain in both his hand and his ankle. He blurted out to DEFENDANT, “Why did you do that?” In response, DEFENDANT replied, “There is something in my pocket.” Det. Mong then conducted a pat-down search of DEFENDANT. Drugs were found in DEFENDANT’s pants’ pocket.

DEFENDANT was eventually charged with multiple offenses, including Possession of a Controlled Substance. Following arraignment, DEFENDANT filed a timely Suppression Motion. He claimed that Det. Mong’s question “Why did you do that?” constituted a custodial interrogation conducted at a time when Miranda warnings had not been given. We scheduled a hearing on DEFENDANT’s suppression claim and conducted that hearing on August 13, 2014.

At the suppression hearing, Det. Mong testified that his question “Why did you do that?” was rhetorical and that he never expected a response. The Commonwealth disputed DEFENDANT’s proffered premise that Det. Mong’s question was a “custodial interrogation.” As an alternative argument, the Commonwealth asserted that suppression should not be granted based upon the doctrine of inevitable discovery.

Both the Commonwealth and DEFENDANT have filed Briefs in support of their respective positions. The issue raised by DEFENDANT is now before us for disposition.

II. DISCUSSION

A. Custodial Interrogation

One of the most famous cases in the history of American jurisprudence is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court declared that before police can conduct a “custodial interrogation” of a suspect, they must first apprise the suspect of certain constitutional rights. The so-called “Miranda warnings” that resulted from the Supreme Court’s decision have become a part of America’s legal lexicon, and practically every citizen is familiar with the reading of these rights simply from watching television crime dramas.

What is little recognized is that Miranda does not always apply. For example, “Miranda does not preclude the admission of spontaneous utterances.” Commonwealth v. Johnson, 42 A.3d 1017, 1029 (Pa. 2012). Likewise, statements of a defendant made after relatively innocuous police contact are similarly exempt from Miranda. Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996). Only statements responsive to an “interrogation” are subject to the precepts and penalties of Miranda. Interrogation has been defined as actions by police that are “calculated to, expected to, or likely to evoke admission.” Commonwealth v. Dejesus, 787 A.2d 394 (Pa. 2001). “When a person’s inculpatory statement is not made in response to custodial interrogation, the statement is classified as gratuitous, and it is not subject to suppression for lack of warnings.” Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa.Super. 1999).

This case involves a rhetorical question by Det. Mong – “Why did you do that?” – that was unthinkingly uttered in the heat of the moment following a vigorous struggle during which the pain was inflicted upon the officer. Det. Mong declared that his question was rhetorical and that he did not expect a response. Given the context in which the question was uttered, we find the officer’s testimony to be credible. Stated simply, we do not believe that Det. Mong intended to question DEFENDANT or evoke any admissions from him. His rhetorical question was more of a comment on the fact that DEFENDANT really did not have to employ flight and violence in a situation where neither was likely to succeed.

Our conclusion about Det. Mong’s subjective intent does not completely answer the issue of whether his spur-of-the-moment question constituted an “interrogation.” The test for determining whether an “interrogation” occurred focuses not only upon the subjective intent of the police officer, but also upon the effect of the question upon DEFENDANT. See Commonwealth v. Gaul, 912 A.2d 252 (Pa. 2006).

We searched vigorously for decisional precedent that could guide us in determining whether a pointed but rhetorical and unthinking question articulated during stress can trigger Miranda. We found no such guidance in Pennsylvania and only limited guidance from cases in other jurisdictions. Therefore, it is necessary for us to analyze general principles and analogous precedent.

We begin our analysis with the United States Supreme Court decision of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Innis was one of the first United States Supreme Court cases to focus upon the meaning of “interrogation” as that term was coined in Miranda. In Innis, two police officers were in the process of transporting the Defendant to the police station. They engaged in a conversation between themselves about a gun that was relevant to the Defendant’s charges. One of the officers commented that handicapped children lived in the area of the crime scene. The other officer stated: “God forbid one [of these children] might find a weapon with shells and they might hurt themselves.” The Defendant then interrupted the officers’ conversation and indicated that he would disclose the location of the gun.

The United States Supreme Court began its analysis by concluding that not every custodial statement can be considered the product of interrogation. The Supreme Court defined “interrogation” as follows:

A practice that the police should know is reasonably likely to invoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

(S.Ct. at 1682). Based upon this definition, the Supreme Court refused to suppress the Defendant’s statement to police about the location of the missing gun. The Court stated:

[W]e conclude that the Respondent was not ‘interrogated’ within the meaning of Miranda. It is undisputed that the first prong of the definition of ‘interrogation’ was not satisfied, for the conversation between [police] and [the suspect] included no express questioning of the Respondent…

The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the Respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few offhand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the Respondent’s contention, that, under the circumstances, the officer’s comments were particularly ‘evocative.’ It is our view, therefore, that the Respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.

(S.Ct. at 1691).

Pennsylvania appellate courts have communicated mixed messages with respect to what constitutes an “interrogation” within this Commonwealth. In Commonwealth v. Gaul, 912 A.2d 252 (Pa. 2006), the Pennsylvania Supreme Court discussed the concept of “functional equivalent of interrogation.” The Court stated that in analyzing whether Miranda applies, the Court “must focus on a suspect’s perceptions and give relevance to the officer’s constructive knowledge…merely because a police officer intended the encounter to be informational does not mean that it could not also constitute an interrogation.” Id. at 256. On the other hand, our Commonwealth’s highest court has also recognized that “general conversation” is “routinely attendant with custodial relationship.” Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996). When a defendant provides a confession within the context of such “small talk,” it must be deemed voluntary and not the product of a custodial interrogation. Commonwealth v. Brantner, 406 A.2d 1011 (Pa. 1979).

While not directly on point, several Pennsylvania Superior Court cases are helpful in discerning what constitutes a “functional equivalent of interrogation.” In Commonwealth v. Daniels, 590 A.2d 778 (Pa.Super. 1991), a police officer advised a defendant that his car was going to be impounded. He asked: “Why don’t you just save yourself [the money], you know, unlock the car, he’s going to search it anyhow.” In response to this comment, the Defendant confessed to possessing a gun inside the car. Declaring that the officer’s comments regarding towing of the car did not constitute an “actual custodial interrogation,” the Superior Court refused to suppress the Defendant’s statement. Similarly, in Commonwealth v. Thompson, 778 A.2d 1215 (Pa.Super. 2001), an officer asked a handcuffed defendant whether he possessed any knives or anything sharp that could cut the officer during a pat-down. In response, the Defendant indicated that he had a gun in his waistband. The Superior Court declared that the officer’s questions about a knife did not create an “interrogation.” The Court stated:

Officer Killian clearly asked appellant whether he possessed any sharp objects; he did not ask appellant whether he possessed weapons in general.

Id. at 1221.

Perhaps the closest Pennsylvania case to the one at bar is Commonwealth v. Jones, 471 A.2d 879 (Pa.Super. 1984). In Jones, a police officer was shot in the leg during a melee. The Defendant was taken into custody as a result of his participation in the disturbance. While he was being forcibly transported from the scene in a “paddy wagon,” the Defendant inquired with the police about how the officer was doing. An officer flippantly responded: “What the hell do you care?” In response, the Defendant confessed. The Court declared that the officer’s emotionally motivated question “What the hell do you care?” “cannot be characterized as police interrogation by any stretch of the imagination.” Id. at 881.

Because of the lack of any Pennsylvania decisional precedent directly on point, we expanded our search for guidance beyond the borders of this Commonwealth. We found a line of cases dealing with so-called “rhetorical questions” by police.

In Commonwealth v. Foley, 833 NE2d 130 (Mass. 2005), the Defendant was in handcuffs in the rear of a police car. He was loud and obnoxious. An officer commented: “You seem pissed off…Are you having a rough day?” In response, the Defendant blurted out “I choked her out, but she deserved it.” The Defendant sought to suppress the Defendant’s responses because no Miranda warnings had been provided to him. The Massachusetts Supreme Court refused to do so and stated: “We conclude that the rhetorical question the officer asked was not the functional equivalent of interrogation nor likely to elicit an incriminating response. Therefore, Miranda warnings were not required.” Id. at 133.

In State v. Gage, 965 So.2d 592 (La.App. 2007), the Defendant was waiting to take an intoxilizer test. One of the officers rhetorically asked: “How many times have I arrested you?” The Defendant made incriminating statements thereafter. The Louisiana Appellate Court refused to suppress the Defendant’s statement and said:

Regarding Officer Devires’ question, “How many times have I arrested you,” the comment was clearly a rhetorical question, made as the officer was standing next to Gage with the intoxilizer device, and not interrogation.

Id. at 601.

In Burns v. State, 807 SW2d 878 (Tex.App. 1991), a police officer was tasked with the responsibility to supervise the Defendant after he had been taken in custody. The Defendant blurted out: “I didn’t kill that [expletive deleted] spic.” The officer then responded “Why would you want to call the boy that? He’s dead; he’s under the car.” The Defendant replied “Because that is what he is; he is an [expletive deleted] spic and so are you.” The Defendant sought to suppress his statements as the product of a non-Mirandized custodial interrogation. The Texas Court of Appeals rejected this argument, classifying the police officer’s question as “more of a rhetorical question or chastising statement than a direct question intended to elicit a response.” Id. at 882.

Based upon all of the above, we conclude that Pennsylvania will eventually recognize that “rhetorical questions” made by police officers during the heat of exigent circumstances do not constitute a custodial interrogation. Our appellate courts have already recognized that “general conversation attendant with custodial relationship” and non-specific general questions do not constitute “custodial interrogations” so as to require Miranda warnings as a predicate to admissibility. It is not a tremendous leap of logic to conclude that Pennsylvania will eventually follow Massachusetts, Louisiana and Texas by declaring that rhetorical questions should not be equated with interrogation.

In this case, the context of the interaction between DEFENDANT and Det. Mong cannot be emphasized enough. This is not a situation where a defendant was inside a police car, sitting in a police station or waiting for an intoxilizer test to be performed. The interaction in question occurred immediately after Det. Mong and another officer had subdued the physically larger DEFENDANT and at a time while Det. Mong was out of breath, physically stressed and in pain. Det. Mong’s question was unthinking. The detective’s words were a reaction to the flight and violence unexpectedly employed by DEFENDANT. They were an expression of shock of what had just occurred, not an effort to glean whether DEFENDANT was guilty of an unrelated crime. Even an individual in DEFENDANT’s position should have recognized Det. Mong’s rhetorical question for what it was, and, more important, that it was not an effort to “interrogate” about potential crimes occurring in the Guilford Street premises.

Given the circumstances, we conclude that even DEFENDANT had to have known that he was not being “interrogated” by Det. Mong about potential crimes he or others inside the Guilford Street residence committed. We also conclude as a matter of law that Pennsylvania will eventually recognize that rhetorical questions by police officers do not constitute custodial interrogations. Given the above conclusions, we refuse to suppress the statements made by DEFENDANT in the above-referenced case.

B. INDEPENDENT SOURCE/INEVITABLE DISCOVERY

Pennsylvania recognizes the so-called rule of inevitable discovery. Also known as the independent source rule, the doctrine of inevitable discovery permits a court to admit otherwise tainted evidence when its discovery was inevitable and independent of any police malfeasance. See, generally, Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) and 1 McCormick on Evidence, Section 177 (7th Ed.).

In Pennsylvania, the independent source/inevitable discovery rule has been the subject of considerable commentary and controversy. Two Pennsylvania Supreme Court cases, Commonwealth v. Mason, 637 A.2d 251 (Pa. 1993) and Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996) expanded the traditional “independent source” concept to limit admissibility when the alternative source of discovery was the same “police or investigative team which engaged in the misconduct by which the tainted evidence was discovered.” Melendez at 231; Mason at 257-258. In 2012, this Commonwealth’s highest Court decided the case of Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012). A majority of acting Justices rejected both Melendez and Mason and instead focused upon whether the proffered evidence would have been discovered through means totally independent of police malfeasance. The Court stated:

We are unwilling to enforce a “true independence” rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting appellant with his crimes.

Id. at 804.

In this case, we cannot in any way accuse Detective Mong of misconduct. When he asked his rhetorical question, “Why did you do that?”, a taxing struggle with a physically larger defendant had just ended. Det. Mong was out of breath and he was feeling pain in both his hand and his ankle. His rhetorical question, “Why did you do that?”, was not premeditated, nor was it calculated to eviscerate the Defendant’s rights by circumventing Miranda. It was an entirely human reaction to a stressful situation. We cannot and will not declare Det. Mong’s statement to be malfeasance.

In addition to the above, we cannot ignore the context of this event. When Det. Mong asked his rhetorical question, the Defendant was subject to an investigative detention and was waiting with police for the arrival of a search warrant. The search warrant that was eventually obtained by other officers included a request to search “all occupants” of the structure at 510 Guilford Street and was supported by probable cause that the Defendant has not challenged. Once the search warrant arrived, police would have been able to completely search the Defendant and would have located the contraband in his pocket that he described to Det. Mong.

We cannot think of a more classic example of where the independent source/inevitable discovery rule should be applied. The statement by the Defendant to Det. Mong was made while other officers were already in the process of obtaining a search warrant predicated upon completely independent information. The search warrant was eventually awarded and it included permission for police to search “occupants” of the Guilford Street residence such as the Defendant. Thus, police would have inevitably learned about the Defendant’s possession of contraband in a manner completely independent of Det. Mong’s encounter with the Defendant. For this reason also, the Defendant’s request to suppress evidence must be denied.

III. CONCLUSION

There are two completely separate reasons why we will be denying DEFENDANT’s request to suppress evidence. First, we do not find Det. Mong’s stress-induced and unthinking question, “Why did you do that?” to be a custodial interrogation. Second, even if Det. Mong’s question could be considered interrogation, the inevitable discovery/independent source rule applies to preclude suppression of the evidence found in DEFENDANT’s pocket. For either and both of the above reasons, we will be entering an Order today to deny DEFENDANT’s Motion to Suppress.

 

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