Summary
providing that review of waiver issue is plenary
Summary of this case from Gib. Rock v. Pa. Dep't of Envtl. Prot.Opinion
No. 37 EAP 2018
09-26-2019
COMMONWEALTH of Pennsylvania, Appellee v. Scott BISHOP, Appellant
OPINION
Appellant argues that this Court should interpret the provision of the Pennsylvania Constitution conferring upon individuals a right against self-incrimination to provide greater protection than the Fifth Amendment to the United States Constitution, as interpreted by the Supreme Court of the United States. The Commonwealth counters that this claim has not been properly preserved.
As a preliminary matter, under the Fifth Amendment to the United States Constitution, as construed in United States v. Patane , 542 U.S. 630, 124 S. Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality), a statement made by a criminal defendant during a custodial interrogation who has not been apprised of the warnings required by Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), generally must be suppressed. See Patane , 542 U.S. at 641-42, 124 S. Ct. at 2629 (citing Chavez v. Martinez , 538 U.S. 760, 790, 123 S. Ct. 1994, 2013, 155 L.Ed.2d 984 (2003) (Kennedy, J., concurring in part and dissenting in part, joined by Stevens, J.)). However, the violation does not justify the exclusion of physical evidence recovered as a result of the statement. See id. at 634, 124 S. Ct. at 2624 ; id. at 644-45, 124 S. Ct. at 2630-31 (Kennedy, J., concurring, joined by O'Connor, J.).
The Pennsylvania Constitution's analogue to the Fifth Amendment is contained in Article I, Section 9 of the state charter. See PA. CONST. art. I, § 9. To date, Article I, Section 9 has not been interpreted by this Court to provide any greater protection than does the Fifth Amendment in the relevant regard. Cf. Commonwealth v. Cooley , 632 Pa. 119, 129 n.8, 118 A.3d 370, 375 n.8 (2015) ("We have held that Article I, § 9 of the Pennsylvania Constitution affords no greater protections against self-incrimination than the Fifth Amendment to the United States Constitution." (citing Commonwealth v. Knoble , 615 Pa. 285, 290 n.2, 42 A.3d 976, 979 n.2 (2012) )).
As Appellant relates, the statement from Cooley must be taken in the light of other decisions, such as Commonwealth v. Molina , 628 Pa. 465, 104 A.3d 430, 452 (2014) (Opinion Announcing the Judgment of the Court), in which a majority of the five participating Justices determined that Article I, Section 9 affords greater protection than its Fifth Amendment counterpart in the arena of pre-arrest silence. See id. at 502, 104 A.3d at 452 ; id. at 507-09, 104 A.3d at 455-56 (Saylor, J., concurring, joined by Todd, J.).
Appellant was a parolee. During a home visit in March 2015, a parole agent performed a drug test, which indicated that methamphetamine was present in Appellant's urine. Appellant was handcuffed and asked whether the agent would find anything in the residence that would violate parole conditions. Appellant then admitted that he had a firearm in a hallway closet. The agent proceeded to the closet, where he found a revolver, marijuana, electronic scales, and packaging materials.
Subsequently, another parole agent asked Appellant where his car was located, and Appellant indicated that the vehicle was in front of the residence. Inside the vehicle's console, the agent found bullets and prescription bottles. Throughout the encounter, neither agent apprised Appellant of his constitutional rights as is generally required by Miranda when a defendant is interrogated while in custody.
Appellant was charged with multiple criminal offenses, and he filed a suppression motion. In relevant part, the motion indicated, in broad terms, that both the statements and physical evidence had been obtained in violation of Appellant's "U.S. Constitutional rights or independently protected rights secured by the Pennsylvania Constitution[.]" Omnibus Motion dated June 9, 2015, in Commonwealth v. Bishop , CP-51-CR-0003894-2015 (C.P. Phila.), at 1. The motion also alleged that "the questioning of the defendant was not preceded by adequate warnings as to the right to counsel, the right to remain silent and be free from self-incrimination." Id.
In the ensuing hearings, Appellant's counsel initially argued that all physical evidence should be suppressed under " Amendments 4 and 14 of the U.S. Constitution, as well as Article I, Section 8 of the Pennsylvania Constitution" and that his statements should be suppressed "under Amendments 5 and 6 and 14 of the Federal Constitution and Article I, Section 9 of the Pennsylvania Constitution." N.T., Nov. 19, 2015, at 3-4. Notably, he did not initially seek suppression of the physical evidence under Article I, Section 9.
Nevertheless, in later segments of his argument, counsel made some broader statements relative to the physical evidence. For example, he argued:
[T]he search of the house, Your Honor, I'd ask you suppress any fruits of that. Granted there is a [sic] testimony of record that my client is subject to conditions that make him searchable upon a finding of reasonable suspicion or even suspicion of a parole violation. The officer testified to the drug test violation. I would still just ask the Court to consider, despite the current state of the law that maybe the statute allowing that, it should be unconstitutional under both federal and state laws.
N.T., Nov. 19, 2015, at 26-27. In another passage from his argument, counsel alluded to Patane while addressing the search of Appellant's vehicle:
I know the case law probably doesn't support me on this but in the event that something changes, they did ultimately find out that this was Mr. Bishop's car after interrogating him and eliciting statements that I believe should be suppressed. I know that under cases in the U.S. Supreme Court and in our courts, we don't apply the exclusion of physical evidence to potential Miranda violations[,] but I would nonetheless make the argument that they only found out this was Mr. Bishop's car after, A, unlawfully interrogating him or, B, a plate search after everything's already been found.
N.T., Nov. 23, 2015, at 16.
Significantly, at no time during the argument did counsel suggest that the protections provided by the state and federal constitutions differed in any way. The suppression court did not require briefs, but rather, tendered its findings and rulings on the record at the hearings.
The court held that Appellant should have received Miranda warnings and that his statement relating to the firearm was subject to exclusion. See N.T., Nov. 19, 2015, at 37-40. It determined however, that the parole agent's inquiry about the location of Appellant's vehicle did not rise to the level of interrogation, and therefore, suppression was not required. See N.T., Nov. 23, 2015, at 20-21. Regarding the physical evidence obtained from the residence, the court concluded that the inevitable discovery exception to the warrant requirement pertained, and accordingly, there was no constitutional violation.
Appellant was convicted of the charged offenses, and he lodged an appeal in the Superior Court. As in the trial court, Appellant made no attempt to distinguish between the federal and state charters in the proceedings before the intermediate court.
The Superior Court affirmed in a non-precedential opinion, reasoning, in relevant part, that physical evidence is not subject to suppression under Patane . Additionally, the court quoted its own prior decision as follows:
Currently, there is no precedent in this Commonwealth indicating that the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence obtained as a result of or during the course of an unwarned statement. We find Patane instructive here. Accordingly, until our Supreme Court has the occasion to conduct an independent analysis, we are persuaded by the reasoning in Patane .
Commonwealth v. Bishop , No. 1193 EDA 2016, slip op. at 9 (quoting Commonwealth v. Abbas , 862 A.2d 606, 609-10 (Pa. Super. 2004) (footnotes omitted)). Appellant submitted a petition for allowance of appeal to this Court, in which he framed the question presented in the following fashion:
Should not this Court conduct an independent analysis of whether the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence recovered as a result of or during the course of an unwarned statement?
Commonwealth v. Bishop , ––– Pa. ––––, 196 A.3d 129 (2018) (per curiam ).
The Commonwealth contends that the Court should not conduct an independent analysis, because Appellant never asked the common pleas court or the Superior Court to do so in the first instance. In this regard, the Commonwealth stresses that, prior to the filing of his brief in this Court, Appellant did nothing to distinguish between the federal and state constitutions. In such instances, the Commonwealth observes, this Court treats parallel federal and state constitutional provisions as coterminous. See, e.g. , Commonwealth v. Lagenella , 623 Pa. 434, 441 n.3, 83 A.3d 94, 99 n.3 (Pa. 2013). The Commonwealth urges that the intermediate and common pleas courts should be permitted to do the same for good reason.
The issue of waiver is a legal one over which our review is plenary. See, e.g. , Stapas v. Giant Eagle, Inc. , ––– Pa. ––––, ––––, 198 A.3d 1033, 1037 (2018).
Appellant, on the other hand, criticizes the Commonwealth for failing to submit an answer to his petition for allowance of appeal advancing waiver. He explains that, before the Supreme Court of the United States, when a party fails to raise a waiver claim in a response to a petition for a writ of certiorari, the Court proceeds to decide the merits of the question presented. See Reply Brief for Appellant at 7 n.7; cf. City of Oklahoma City v. Tuttle , 471 U.S. 808, 816, 105 S. Ct. 2427, 2432, 85 L.Ed.2d 791 (1985) ("Nonjurisdictional defects [such as waiver] should be brought to our attention no later than in respondent's brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived." (emphasis adjusted)).
This Court has announced no similar rule, however. And certainly we would not apply such a precept to the detriment of a litigant who has had no previous notice of it, particularly since the filing of a brief in opposition to a petition for allowance of appeal is optional. See Pa.R.A.P. 1116(a).
This Court entertains thousands of petitions for allowance of appeal in any given year, and only a small percentage of discretionary appeals are permitted. So far, we have maintained a system that does not burden putative appellees with responding, at the allocatur stage, to the wide range of petitions that are unlikely to be granted.
That said, it should be noted that the Court could certainly benefit from the filing of a brief in opposition at the allocatur stage, where pervading waiver concerns are present.
Next, Appellant observes that this Court has declined, in various instances, to entertain arguments that were not encompassed in the grant of allocatur. See Reply Brief for Appellant at 7 n.7 (citing Commonwealth v. Shabezz , 641 Pa. 92, 104, 166 A.3d 278, 284 (2017), Pocono Mountain Sch. Dist. v. Pa. Dep't of Educ. , 637 Pa. 507, 517 n.8, 151 A.3d 129, 135 n.8 (2016) (Opinion Announcing the Judgment of the Court), and Commonwealth v. Revere , 585 Pa. 262, 271 n.8, 888 A.2d 694, 700 n.8 (2005) ).
Shabezz , however, merely offers a recitation of the range of substantive matters that were in and outside the scope of the allocatur grant in that particular case. See Shabezz , 641 Pa. at 104, 166 A.3d at 284 ("It is critical first to underscore what is not at issue in this case."). The Opinion Announcing the Judgment of the Court in Pocono Mountain Sch. Dist. is non-precedential and, in any event, does not present any exposition of law concerning whether, and in what circumstances, the Court will consider matters raised by an appellee outside the four corners of an allocatur grant. See Pocono Mountain Sch. Dist., 637 Pa. at 517 n.8, 151 A.3d at 135 n.8 (stating, without further explanation, that "[w]e do not address this argument [by an appellee], as it is beyond the scope of our allocatur grant"). And it is beyond question that this Court can -- and does on occasion -- review matters that are outside the scope of an order granting a discretionary appeal. For example, in Commonwealth v. Metz , 534 Pa. 341, 633 A.2d 125 (1993), the Court explained:
We granted allocatur in this case to address the issue of whether the police had adequate reason to stop Appellant's vehicle based upon his avoidance of a systematic roadblock. However, because we find that Appellant waived this issue, we do not reach it.
Id. at 343, 633 A.2d at 126.
In this regard, this Court, in its discretion, may sustain a valid judgment for any reason appearing of as of record. See, e.g. , Ario v. Ingram Micro, Inc. , 600 Pa. 305, 315-16, 965 A.2d 1194, 1200 (2009) ; Heim v. Med. Care Availability & Reduction of Error Fund , 611 Pa. 1, 10, 23 A.3d 506, 511 (2011) (explaining that an appellee does not bear the burden of issue preservation). This right-for-any-reason principle aligns with the recognition that it is the petitioner/appellant who has the greatest control over the framing of the issues presented in appeals, including discretionary ones. It is only fair, then, that an appellee should be permitted to present the Court with other reasons why a judgment should be sustained after the matter is accepted for review. See supra note 3. And certainly such reasons may include waiver concerns. See, e.g. , Metz , 534 Pa. at 343, 633 A.2d at 126. Accordingly, Appellant's contention that waiver considerations outside the four corners of an order allowing a discretionary appeal may not be considered is meritless.
Although Metz did not specifically invoke the right-for-any-reason doctrine, the determination plainly involved application of that precept favorable to the appellee. Indeed, the Court otherwise enforced the requirement of issue preservation relative to the appellant. See id. at 347 n.4, 633 A.2d at 127 n.4 (explaining, with regard to an issue the appellant sought to raise, "we are limited to the issues as framed in the petition for allowance of appeal"). The final case cited by Appellant in this line of his argument, Revere , 585 Pa. at 271 n.8, 888 A.2d at 699, 700 n.8, is also in this vein.
Appellant additionally argues that his "state constitutional claim was broadly preserved below." Reply Brief for Appellant at 2. Appellant asserts, incorrectly, that his counsel alluded to Article I, Section 9 as a basis for suppression of physical evidence in the opening passages of his arguments during the suppression hearings. See id. (citing N.T., Nov. 19, 2015, at 3-4). Appellant also relies on counsel's entreaty that the search of his residence, "despite the current state of the law ... should be unconstitutional under both federal and state laws." Id. at 26-27.
As previously related, at such time, counsel referenced Article I, Section 9 as a basis for suppression of Appellant's statements only, and not the physical evidence. See N.T., Nov. 19, 2015, at 3-4.
Proper issue preservation facilitates an orderly system of justice. See, e.g. , Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Markets, Inc. , 617 Pa. 265, 286, 52 A.3d 1233, 1246 (2012) ("[W]e have a strong interest in the preservation of consistency and predictability in the operation of our appellate process, and issue preservation rules play an important role in that process." (citation omitted)). It enables the courts of original jurisdiction, in particular, to correct mistakes and affords opposing parties a fair opportunity to respond. See Schmidt v. Boardman Co. , 608 Pa. 327, 357, 11 A.3d 924, 942 (2011) (Majority Opinion, in the relevant respects) (enforcing issue preservation, even where the effort is necessarily futile in a court of original jurisdiction bound by a contrary ruling of an appellate court). In Schmidt , the Court explained:
[T]here are ... very good reasons supporting a requirement that potential challenges be identified early in litigation, not the least of which are to channel the appellate review and afford fair notice to opposing parties of what may be to come at later stages. Indeed, knowledge of the matters which will be available to be raised on appeal may affect decisions which shape litigation, including tactical and settlement choices. For example, in a case in which the plaintiff has the option of proceeding against the defendant on strict liability and/or negligence theories, the plaintiff may choose to proceed in negligence if she knows whether or not the foundation of the strict-liability case may be susceptible to disruption on appeal.
Id. at 355-56, 11 A.3d at 941.
The Court also related that it has taken a stricter approach to waiver than pertains in many other jurisdictions, particularly those that adhere to the plain or fundamental error doctrine. See Schmidt , 608 Pa. at 356-57, 11 A.3d at 942.
In terms of efforts by criminal defendants to raise claims for departure from federal constitutional jurisprudence on independent state grounds, the Commonwealth is correct that the precedent of this Court requires that some analysis explaining the grounds for departure is required. In this regard, our position comports with the approach of the New Mexico Supreme Court, which distinguishes between instances in which established state court precedent construes a provision of the state constitution to provide more protection than its federal counterpart and scenarios in which there is no such precedent. See State v. Gomez , 122 N.M. 777, 932 P.2d 1, 8-9 (1997).
In the former instance, i.e. , when there is controlling precedent:
the claim may be preserved by (1) asserting the constitutional principle that provides the protection sought under the [state] Constitution, and (2) showing the factual basis needed for the trial court to rule on the issue.
Id. at 8. Where there is no precedent supporting departure,
a party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision. This will enable the trial court to tailor proceedings and to effectuate an appropriate ruling on the issue.
Id. (emphasis in original; footnote omitted).
The New Mexico Supreme Court specifically reiterated:
References to the state constitution, without some discussion or argument concerning the scope of its protections, are not enough to alert the trial court to the issue of a possible difference between
the rights afforded by the state constitution and those provided by the [federal charter].
Id. at 10 ; accord Wilkins v. State , 946 N.E.2d 1144, 1147 (Ind. 2011) ("Because [the appellant] provides no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived.").
Like this Court, the New Mexico Supreme Court does not require specified criteria for departure, as do a number of other jurisdictions, see Gomez , 932 P.2d at 8 n.3, although this Court strongly favors a discussion of the factors set forth in Commonwealth v. Edmunds , 526 Pa. 374, 390, 586 A.2d 887, 895 (1991). At a minimum, however, the defendant must offer some reasonably developed, colorable analysis that would support departure.
This infrastructure serves as an apt refinement of our present jurisprudence, which already treats parallel federal and state constitutional provisions as coterminous where the appellant has done nothing to distinguish between them. See, e.g. , Lagenella , 623 Pa. at 441 n.3, 83 A.3d at 99 n.3. We therefore take this opportunity to adopt the framework.
In other words, this Court's prior decisions amply confirm that the "claim" to be preserved, in departure scenarios, is a claim that an analogue provision of the state constitution operates differently than its federal counterpart. See, e.g. , Lagenella , 623 Pa. at 441 n.3, 83 A.3d at 99 n.3. See generally In re J.M. , 556 Pa. 63, 83 n.15, 726 A.2d 1041, 1051 n.15 (1999) (explaining that issues not raised before the trial or Superior Court are not preserved for appellate review). Accordingly, although the Gomez analysis serves as a refinement of our jurisprudence, we find that it is fair for it to be applied here, since no aspect of its application should come as a surprise to the counseled appellant.
In the present case, because Appellant did not distinguish between the Fifth Amendment and Article I, Section 9 before the suppression court, his claim favoring departure is waived. Furthermore, Appellant also waived the claim for additional protection under the state constitution in the Superior Court, since he did not develop any supportive reasoning before that court either. See Wirth v. Commonwealth , 626 Pa. 124, 149-50, 95 A.3d 822, 837 (2014) ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." (quoting Commonwealth v. Johnson , 604 Pa. 176, 191, 985 A.2d 915, 924 (2009) (citations omitted))). We also deem it appropriate, in our discretion, to enforce the waiver here. The Commonwealth was never previously put on sufficient notice that Appellant would seek to pursue a departure claim, and it advanced its waiver objection at an appropriate juncture when such a claim was first presented in this Court. We find this to be a strong consideration in the decision whether to apply the right-for-any-reason doctrine, since it is the appellant who is attempting to overturn the status quo established in the prior reviewing courts during the orderly administration of justice. Here, as well, the various waivers are rather apparent, in our view. Additionally, this Court has been divided in other departure cases. It can be less productive to attempt to decide sensitive constitutional questions in cases in which there is a pervading waiver concern, since the additional issue is likely to lead to a further splintering of votes.
Appellant highlights that this Court does not require appellants to engage in a "complete analysis" on pain of waiver. Reply Brief for Appellant at 10-11 (citing Commonwealth v. Arroyo , 555 Pa. 125, 134 n.6, 723 A.2d 162, 166 n.6 (1999), and Commonwealth v. Swinehart , 541 Pa. 500, 509 n.6, 664 A.2d 957, 961 n.6 (1995) ). As previously related, however, we have required some analysis. See, e.g. , Lagenella , 623 Pa. at 441 n.3, 83 A.3d at 99 n.3. While certainly we may accept that the presentation can be truncated in futility scenarios (i.e. , where the reviewing court is bound by a contrary ruling of a higher court), we reinforce our agreement with the Supreme Court of New Mexico that mere citation to a provision of the state constitution is insufficient.
The Superior Court suggested that the departure matter relative to Patane had been previously decided in Commonwealth v. Abbas , 862 A.2d 606 (Pa. Super. 2004). The Abbas court, however, explained that:
The only privilege asserted here is the federal one; Abbas does not argue that Pennsylvania's Constitution offers greater protection than the Fifth Amendment.
Abbas , 862 A.2d at 610 n.4.
It would be untenable for a court to decide an important state constitutional question as a precedential matter in the absence of any argumentation and without any analytical treatment on its own part of the departure question beyond an expression of agreement with the analysis of the Supreme Court of the United States tethered to the federal constitution. Accordingly, the Superior Court was incorrect in its suggestion that Abbas would be dispositive relative to the intermediate court's own jurisprudence and that of the courts of common pleas.
Appellant also cites Molina , 628 Pa. 465, 104 A.3d 430, and other cases as manifesting "[t]his Court's renewed interest in Pennsylvania's right against self-incrimination." Reply Brief for Appellant at 10; see also supra note 1. According to Appellant, a defendant cannot be expected to anticipate future constitutional rulings in detail. None of the decisions cited by Appellant, however, concerns departure on independent state grounds from the federal constitutional jurisprudence embodied in Patane . Moreover, our issue preservation requirements would be very weak ones were they to turn on predictive judgments about how the Court may or may not rule in the future in some other case or cases.
Turning to the dissent, Justice Wecht depicts our decision as imposing a "brand-new issue preservation regime ... find[ing] no support whatsoever in Pennsylvania law." Dissenting Opinion at 847. This Court has long held, however, that "[i]t is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court." Kimmel v. Somerset Cty. Comm'rs , 460 Pa. 381, 384, 333 A.2d 777, 779 (1975). As we have said, given that no exclusionary remedy was available to Appellant under the Fifth Amendment to the United States Constitution relative to the physical evidence, the only theory available to him in a suppression context was that Article I, Section 9 offered greater protection. Such theory, however, was never advanced. To the degree that the dissent envisions a dichotomous waiver regime in which the pursuit of a departure claim and the concomitant necessity for meaningful development are required only in this Court -- but not in courts of original jurisdiction and/or in the intermediate courts -- that position was squarely rejected by a majority of the Court two months ago based on reasons drawn from the existing decisional law. See Commonwealth v. Bell , ––– Pa. ––––, ––––, 211 A.3d 761, 769 (2019) (finding a departure claim waived where the appellant's brief before this Court was "the first time [the appellant] has suggested that Article I, Section 8 provides an independent basis for relief").
The dissent also posits that the impetus to address the limitations on the applicability of the federal exclusionary rule "necessarily arose only after the Superior Court affirmed the suppression court on an alternative basis[.]" Dissenting Opinion at 850 (emphasis in original). Accordingly, it is Justice Wecht's position that Appellant was presented with his first available opportunity to make a departure claim when he filed a petition for allowance of appeal in this Court. See id. As previously explained, however, Appellant's counsel was specifically aware, from the outset, that the exclusionary rule did not apply to the physical evidence under the prevailing law. Furthermore, counsel was obliged under the Rules of Professional Conduct to advise the suppression court of the authority undermining his position, see Pa.R.P.C. 3.3(2), and he did so. See N.T., Nov. 23, 2015, at 16 (reflecting counsel's statement to the suppression court that, "I know that under cases in the U.S. Supreme Court and in our courts, we don't apply the exclusion of physical evidence to potential Miranda violations[.]").
But counsel utterly failed to confront the prevailing case law to which he alluded. In particular, he did not articulate anything along the lines of the rationale that he seeks to present here, namely, a claim that this Court should rely on Article I, Section 9 of the Pennsylvania Constitution to expand the application of the exclusionary rule beyond its reach under the federal constitutional jurisprudence of the Supreme Court of the United States, where it was created. See Weeks v. United States , 232 U.S. 383, 391-92, 34 S. Ct. 341, 343-44, 58 L.Ed. 652 (1914) ; see also Mapp v. Ohio , 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961) (imposing the exclusionary rule on the states, such as Pennsylvania, which had not previously recognized its application to state-level prosecutions). In the circumstances, relief could only have been even contemplated by the suppression court had it undertaken its own independent research akin to an Edmunds analysis to determine whether Article I, Section 9 should be regarded as affording broader protection than its Fifth Amendment counterpart. See supra note 7. In other words, counsel's approach of neither suggesting departure nor offering any reasons for departing was the antithesis of meaningful development. In our view, the fact that the common pleas court did not incorporate Patane into its rationale as an alternative ground for its refusal to award suppression is fortuitous and is not a basis for excusing a litigant seeking to depart from existing law, and/or to present a matter of first impression, from laying the groundwork for such effort in the court of original jurisdiction.
Certainly, there are situations in which issues should be deemed preserved on account of a truncated proffer, such as where the court of original jurisdiction declines to entertain any additional development. On this record, however, there is no evidence that the suppression court thwarted the development of Appellant's present claim. Indeed, and again, Appellant did not so much as suggest a departure theory.
In terms of the degree of development required for departure claims, our present decision is also rebuked by the dissent as a "paragon of judicial doublespeak," because we have not delineated precisely what range of particular arguments must be made in order to preserve a departure claim. Dissenting Opinion at 849. As previously noted, however, the most straightforward course for counsel is to follow the template indicated in Edmunds , see supra note 7, and counsel who do so certainly have safe haven. The affordance of latitude in terms of the presentation, see id. , serves as a recognition of the circumstance-dependent character of litigation and an acknowledgment of the fact that the Edmunds factors were adopted as a guide and not a talisman. Conceptions such as "meaningfulness" and "adequacy" of development are, of course, dependent on the circumstances, and the practice of judging quintessentially requires the application of considered judgment. For example, whereas the Court has sometimes found conclusory, single-sentence arguments to be inadequate to preserve issues, see, e.g. , Commonwealth v. Bracey , 568 Pa. 264, 274 n.4, 795 A.2d 935, 940 n.4 (2001), a single sentence presenting a citation to directly-controlling legal authority can reflect the most effective advocacy in other scenarios. Standards exist in the law precisely because many principles simply are not reducible to per se edicts, and attorneys in our system of justice are trained accordingly in furtherance of effective advocacy. See generally MindGames, Inc. v. W. Pub. Co. , 218 F.3d 652, 657 (7th Cir. 2000) (discussing the essential roles of both rules and standards in the justice system). In all events, lawyers who omit reasons, or provide only scant ones, in their efforts to secure relief for their clients should know very well that they are proceeding at the risk of waiver. Accord Kimmel , 460 Pa. at 384, 333 A.2d at 779.
For example, in Commonwealth v. White , 543 Pa. 45, 669 A.2d 896 (1995), the Court determined that the appellant:
clearly raise[d] a claim under the Pennsylvania Constitution, cite[d] cases in support of his claim, and relate[d] the cases to the claim. That is sufficient.
Id. at 50, 669 A.2d at 899.
Finally, the dissent emphasizes the uncertainty of current Pennsylvania law as concerns the protections available under Article I, Section 9. See Dissenting Opinion at 848. Unlike the dissent, however, we conclude that uncertainty in the law generally implicates a need for better development in order to provide the courts with beneficial advocacy, not as a reprieve from the obligation to present any sort of development at all.
The order of the Superior Court is affirmed.
Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.
Justice Donohue files a concurring opinion.
Justice Wecht files a dissenting opinion.
JUSTICE DONOHUE, Concurring
I join in the Majority opinion, as I have no fundamental disagreement with the issue preservation rule espoused by the Majority therein. I write separately to comment on footnote three in the Majority opinion. In my view, the matter of proper notification of potential claims of waiver should be directed to our appellate rules committee for study. Any appellee that intends to assert a waiver defense with respect to any issue presented for review in a petition for allowance of appeal, see Rule 1115(3), should be required to file an answer to said petition notifying this Court of its intention to assert such a defense. An appellee failing to comply with this requirement would then be precluded from asserting the defense in any subsequent filings with this Court in the case then at bar. Where an appellee provides the notice as required, it would remain within this Court's discretion to grant allocatur and decide the issue on its substantive merits. It is a tremendous waste of our judicial resources and those of the parties, for this Court to grant allowance of appeal, require briefing, and prepare for and participate in oral argument, only then to resort to waiver thereby precluding the decision of an issue we deemed worthy of our review on its substantive merit.
JUSTICE WECHT, Dissenting
I disagree respectfully with the learned Majority's waiver analysis. Unlike the Majority, I would address the issue that this Court granted allocatur to resolve. Reaching that issue, I would conclude that Article I, Section 9 of the Pennsylvania Constitution requires the suppression of physical evidence that is tainted by a Miranda violation. Accordingly, I dissent.
By Order dated October 17, 2018, we agreed to answer the following question:
Should not this Court conduct an independent analysis of whether the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence recovered as a result of or during the course of an unwarned statement?
Per Curiam Order, 10/17/2018, at 1.
See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
I.
In March 2015, a state parole agent, Brandon Smith, visited the home of one of his parolees, Scott Bishop. During the visit, Agent Smith subjected Bishop to a drug test, which came back positive for methamphetamine, indicating that Bishop had violated the terms of his parole. Agent Smith handcuffed Bishop and called a supervisor in order to request police backup and seek authorization to search Bishop's home.
When Agent Smith got off the phone, he asked Bishop if there was anything illegal in the home. In response, Bishop admitted that he had a gun, which he stated was in his hallway closet. Agent Smith retrieved the firearm (a .38 caliber revolver) from the closet, along with two digital scales and some marijuana.
Agent Smith continued to search the home and another parole agent, Eric Brown, showed up to help. Agent Brown found a set of car keys on a dresser and asked Bishop where his car was. Bishop replied that it was "right out front." Commonwealth v. Bishop , 2018 WL 3015333, at *1 (Pa. Super. 2018). The agents then searched Bishop's vehicle and found eleven rounds of .38 caliber ammunition inside.
Bishop was charged with persons not to possess, possession of marijuana, and possession of drug paraphernalia. Before trial, Bishop moved to suppress the statements that he made to the parole agents and the physical evidence (the gun, the ammunition, the marijuana, and the scales) that the agents discovered. Among other things, Bishop argued that the parole agents violated the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution when they questioned him without first providing him with Miranda warnings. Bishop sought suppression of both his incriminating statements and the physical evidence derived from those statements.
The suppression court agreed that Agent Smith should have given Bishop Miranda warnings before asking if he had anything illegal in his home. Thus, the court suppressed Bishop's statement admitting that he had a firearm in the hallway closet. That said, the court declined to suppress Bishop's statement to Agent Brown that his vehicle was "right out front." The court concluded that suppression was not warranted because the question that Agent Brown asked Bishop ("Where is your car?") was "not calculated to provoke or evoke an incriminating statement" and therefore "did not amount to interrogation" for Miranda purposes. Trial Court Opinion, 7/21/2017, at 5.
With regard to the physical evidence that Agent Smith found in Bishop's closet, the suppression court held that, because Bishop's parole violation gave Agent Smith a legal basis to search Bishop's property, the inevitable discovery doctrine applied. Id. at 7 (citing 61 Pa.C.S. § 6153 (authorizing searches of parolees' property when "there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision")). In other words, the court believed that suppression was unwarranted because the evidence in question inevitably would have been discovered even if Bishop had not incriminated himself.
As for the ammunition found in Bishop's vehicle, the trial court also held that, even if the "Where is your car?" question constituted "interrogation" for Miranda purposes, the inevitable discovery doctrine applied to that evidence as well. This was so, the court explained, because the parole agents simply would have consulted law enforcement databases to determine which of the vehicles parked nearby was registered to Bishop. Trial Court Opinion at 6.
Bishop proceeded to a non-jury trial, during which the Commonwealth entered into evidence the items seized from Bishop's home and car. The trial court ultimately found Bishop guilty of all of the offenses charged and sentenced him to three to eight years' incarceration. Bishop then appealed to the Superior Court.
In his 1925(b) statement, Bishop again argued that the ammunition recovered from his vehicle "was the fruit of an illegally obtained statement" and that its admission into evidence at trial therefore violated both the United States and Pennsylvania Constitutions. Statement of Errors Complained of on Appeal, 9/23/2016, at 2-3. Bishop also contended that:
The suppression court and the trial court erred in failing to suppress the physical evidence recovered from [Bishop's] residence as fruit of the poisonous tree, having been recovered as the result of a statement which was itself suppressed by the lower court, made by [Bishop] while in custodial detention without having been given Miranda warnings.
Supplemental Statement of Errors Complained of on Appeal, 3/6/2017, at 2-3.
In response to these claims, the trial court again opined that the items that the agents found in Bishop's home and vehicle were not fruits of an illegal interrogation because "the Commonwealth proved by a preponderance of the evidence that the parole agents would have inevitably discovered the contraband in [Bishop's] home without his statement to the parole agents." Trial Court Opinion at 7.
In a unanimous, unpublished decision, the Superior Court affirmed the suppression court's ruling. Unlike the suppression court, the panel found it unnecessary to decide whether Agent Brown's question concerning Bishop's car constituted an "interrogation" for Miranda purposes. The panel also declined to embrace the suppression court's inevitable discovery analysis. Instead, the panel held that neither the Fifth Amendment nor Article I, Section 9 requires the suppression of physical evidence tainted by a Miranda violation. See Superior Court Op. at 7 (citing United States v. Patane , 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality) (holding that Miranda does not require suppression of physical evidence that is discovered based upon an unwarned but voluntary statement) and Commonwealth v. Abbas , 862 A.2d 606 (Pa. Super. 2004) (adopting Patane and finding no indication that the Pennsylvania Constitution extends greater protection than the Fifth Amendment with regard to physical evidence obtained as result of an unwarned statement)). Bishop promptly filed a petition for allowance of appeal, challenging the Superior Court's conclusion that Article I, Section 9 of the Pennsylvania Constitution does not require the suppression of physical evidence obtained in violation of Miranda . More specifically, Bishop urged this Court to overturn the Superior Court's decision in Abbas , which purported to adopt the United States Supreme Court's plurality decision in Patane as a matter of Pennsylvania constitutional law. See Petition for Allowance of Appeal, 7/18/2018, at 6-7.
We granted allocatur , agreeing to consider whether Article I, Section 9 of the Pennsylvania Constitution requires the suppression of physical evidence that is tainted by a Miranda violation.
II.
Today's Majority holds that Bishop's claim is waived, for two reasons. First, the Majority finds waiver because Bishop "did not distinguish between the Fifth Amendment and Article I, Section 9 before the suppression court." Majority Opinion at 840–41. Second, the Majority holds that Bishop waived his claim because he failed to argue before the Superior Court that Article I, Section 9 of the Pennsylvania Constitution should be interpreted more expansively than the Fifth Amendment to the United States Constitution. Id. at 840–42.
The Majority's conclusion flows from its adoption of a brand-new issue-preservation regime, which it borrows from the New Mexico Supreme Court. See id. at 840 (quoting State v. Gomez , 122 N.M. 777, 932 P.2d 1, 8-9 (1997) ). Under that framework, when no precedential decision has construed the state constitutional provision at issue to provide more protection than its federal counterpart, the litigant:
must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision. This will enable the trial court to tailor proceedings and to effectuate an appropriate ruling on the issue.
Gomez , 932 P.2d at 8 (footnote omitted; emphasis in original).
In adopting this New Mexico approach, the Majority explains that "the ‘claim’ to be preserved, in departure scenarios, is a claim that an analogue provision of the state constitution operates differently than its federal counterpart." Majority Opinion at 841 n.8. In practice, this means that Pennsylvania courts will decline to enforce independent Pennsylvania constitutional rights (many of which pre-date their federal counterparts) unless the defendant offers the trial court "some analysis," Majority Opinion at 840–42 n.9, distinguishing the state constitutional provision from a related federal one. This holding, which the Majority couches creatively as "an apt refinement of our present jurisprudence," finds no support whatsoever in Pennsylvania law. The Majority does not explain what benefit it sees in adopting New Mexico's rule in order to analyze preservation of claims under Pennsylvania's Constitution. Today's decision is sure to inject even more arbitrariness and uncertainty into this Court's already erratic waiver jurisprudence. For one thing, the threshold question under the Gomez rubric—whether the state constitutional provision at issue has been interpreted differently than its federal analog—often will not have a clear-cut answer. For example, some decisions from this Court have interpreted Article I, Section 9 to provide protections that the Fifth Amendment does not. See Commonwealth v. Molina , 628 Pa. 465, 104 A.3d 430, 444 (2014) (plurality) (acknowledging that "this Court has taken inconsistent stances in determining whether the right against self-incrimination under [Article I,] Section 9 exceeds the protections of the Fifth Amendment"); accord Commonwealth v. Triplett , 462 Pa. 244, 341 A.2d 62 (1975) (holding that Article I, Section 9, unlike the Fifth Amendment, bars the use at trial of a suppressed but voluntary statement for impeachment purposes), superseded by constitutional amendment , PA CONST. art. 1, § 9. Yet there are conflicting decisions, which hold that Article I, Section 9 "affords no greater protections against self-incrimination than the Fifth Amendment to the United States Constitution." Commonwealth v. Cooley , 632 Pa. 119, 118 A.3d 370, 375 n.8 (2015).
See League of Women Voters v. Commonwealth , ––– Pa. ––––, 178 A.3d 737, 741 (2018) ("The people of this Commonwealth should never lose sight of the fact that, in its protection of essential rights, our founding document is the ancestor, not the offspring, of the federal Constitution."); Ken Gormley, The Pennsylvania Constitution: A Treatise on Rights and Liberties 2 (2004) ("Many lawyers and judges are unaware that the Pennsylvania Constitution, drafted in the midst of Revolution in 1776, is twelve years older than the federal Constitution.").
The Majority cites Commonwealth v. Lagenella , 623 Pa. 434, 83 A.3d 94, 99 n.3 (2013), in support of today's novel holding, but the Lagenella Court made no such pronouncement. Rather, it simply declined to find that Article 1, Section 8 afforded an appellant greater protection than the Fourth Amendment given that the appellant had failed to argue in his appellate brief that the two provisions differed in any way. Lagenella , 83 A.3d at 99 n.3 ("Although Appellant refers to the Fourth Amendment and Article 1, Section 8 collectively throughout his brief, he offers no argument as to how Article 1, Section 8 affords him greater protection than the Fourth Amendment. Thus, for purposes of this appeal, we find the Fourth Amendment and Article I, Section 8 to be coextensive.").
The Majority's nonresponsive retort to this critique is that "uncertainty in the law generally implicates a need for better development in order to provide the courts with beneficial advocacy[.]" Majority Opinion at 844. That ignores my point: today's decision adopting the Gomez rubric muddies, rather than clarifies, our issue preservation rules. From now on, litigants will argue about whether the constitutional claim at issue falls within Gomez ' first category of claims (which can be preserved simply by citing the relevant constitutional provision) or Gomez ' second category of claims (which require "some analysis" supporting the claim for departure). See id. at 840. In many cases, both sides will be able to cite precedent from this Court supporting their position. Compare Leonard v. Thornburgh , 507 Pa. 317, 489 A.2d 1349, 1351 (1985) ("[A]llegations of violations of the equal protection clause, and of the Uniformity Clause, are to be analyzed in the same manner."), with Hosp. & Healthsystem Ass'n of Pa. v. Commonwealth , 621 Pa. 260, 77 A.3d 587, 606 n.26 (2013) ("In some contexts the Uniformity Clause has been recognized as reflecting more stringent limitations [than the Fourteenth Amendment's Equal Protection Clause]."), and Commonwealth v. Real Property & Improvements Commonly Known As 5444 Spruce Street , 574 Pa. 423, 832 A.2d 396, 399 (2003) ("This Court has held that Article I, Section 13 of the Pennsylvania Constitution is coextensive with the Eighth Amendment." (footnote omitted)), with Commonwealth v. Batts , 620 Pa. 115, 66 A.3d 286, 298 n.5 (2013) (holding that Article I, Section 13 is coextensive with the Eighth Amendment except when it is not).
Eagle-eyed readers also will note that the Majority leaves itself plenty of wiggle room to ignore today's newly invented issue-preservation rule whenever it pleases. See Majority Opinion at 840 ("We also deem it appropriate, in our discretion , to enforce the waiver here." (emphasis added)). Indeed, today's decision—like many of this Court's waiver decisions—is a paragon of judicial doublespeak. The Majority tells us, for instance, that an appellant need not engage in a "complete analysis" of his state constitutional claim (id. at 840–41 n.9 (italics added)), but that he must engage in "some analysis" and "provide reasons for interpreting the state provision differently from the federal provision." Id. at 840, 840–42 n.9 (quoting Gomez , 932 P.2d at 8 ). Similarly abstruse is the Majority's suggestion that it would never apply a new rule "to the detriment of a litigant who has had no previous notice of it" (id. at 838), only to do exactly that a mere five pages later. Id. at 840–41 n.8 (proclaiming that today's decision adopting New Mexico law should not "come as a surprise to the counseled appellant"). In short, the Majority's implementation of the Gomez framework adds even more uncertainty for litigants wondering what exactly they must do or say to preserve a claim under the Pennsylvania Constitution to this Court's satisfaction. I suppose the takeaway here is: "It depends."
Adding an additional layer of gloss on top of today's newly manufactured issue preservation rule, the Majority accepts that its already-amorphous "some analysis" requirement "can be truncated in futility scenarios (i.e ., where the reviewing court is bound by a contrary ruling of a higher court)." Id. at 840, 840–42 n.9. But the Majority ignores the fact that Bishop himself was in a "futility scenario" when he litigated his suppression motion given that the trial court had no choice but to follow Commonwealth v. Abbas , 862 A.2d 606 (Pa. Super. 2004). In Abbas , the Superior Court explained that:
Currently, there is no precedent in this Commonwealth indicating that the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence obtained as a result of or during the course of an unwarned statement. We find Patane instructive here. Accordingly, until our Supreme Court has the occasion to conduct an independent analysis, we are persuaded by the reasoning in Patane .
Abbas , 862 A.2d at 609-610 (footnotes omitted); accord Commonwealth v. Thevenin , 948 A.2d 859, 861 (Pa. Super. 2008) (noting that, "[i]n Abbas , a panel of our Court applied the lessons of Patane to Pennsylvania law"); Commonwealth v. Jones , 193 A.3d 957, 966 (Pa. Super. 2018) (same).
The Superior Court's holding in Abbas notwithstanding, the Majority claims that Bishop, in theory, could have prevailed below if the suppression court had "undertaken its own independent research akin to an Edmunds analysis to determine whether Article I, Section 9 should be regarded as affording broader protection than its Fifth Amendment counterpart." Majority Opinion at 843. This is so, the Majority tells us, because the appellant in Abbas did not explicitly argue that Article I, Section 9 provides more protection than the Fifth Amendment, and "[i]t would be untenable for a court to decide an important state constitutional question as a precedential matter in the absence of any argumentation and without any analytical treatment on its own part of the departure question beyond an expression of agreement with the analysis of the Supreme Court of the United States tethered to the federal constitution." Id. at 841 n.10. Perhaps that is a fair criticism of the Abbas Court's decision. But the simple fact remains that the suppression court, unlike the Majority, has no authority to declare that published Superior Court precedent is "untenable." Id.
The upshot of all of this is that, even under the Majority's newfangled "infrastructure," Bishop was not required to offer the suppression court a "complete analysis," or even "some analysis," of his departure claim; instead, a "truncated presentation" would have sufficed. All of these phrases, of course, are entirely meaningless, which is why today's decision—whether by design or by accident—makes an Edmunds analysis a de facto prerequisite for preserving departure claims. See id. at 165 ("[T]he most straightforward course for counsel is to follow the template indicated in Edmunds , and counsel who do so certainly have safe haven. (internal citation omitted)); but see Commonwealth v. Arroyo , 555 Pa. 125, 723 A.2d 162, 166 n.6 (1999) ("[A]n appellant's failure to engage in an Edmunds analysis does not result in waiver of a state constitutional claim."). The Majority's message to the criminal defense bar is clear in its lack of clarity: Do what we have said you need not do or else we, in our "considered judgment," might find your analysis too "scant" or too "truncated" to warrant our attention. Majority Opinion at 840–42 n.9, 843–44, 844.
This is no rule. It is only muddle and confusion. But perhaps the greatest flaw in the Majority's decision is what it omits. The Majority concludes that, "because [Bishop] did not distinguish between the Fifth Amendment and Article I, Section 9 before the suppression court, his claim favoring departure is waived." Id. at 841. This ignores the precise nature of Bishop's "claim favoring departure" and its evolution before arriving at this Court. In the suppression court, the parties' arguments mainly concerned whether the agents were even required to provide Bishop with Miranda warnings in the first place (i.e. , whether the agents' questions constituted an "interrogation" for Miranda purposes) and, if so, whether the physical evidence inevitably would have been discovered absent the Miranda violation. Consistent with this framing, the suppression court held that the question that Agent Brown asked Bishop ("Where is your car?") "did not amount to interrogation" for Miranda purposes. Trial Court Opinion at 5. Alternatively, concluded the suppression court, if Miranda warnings were required, then the parole agents would have found the items in Bishop's vehicle "pursuant to the inevitable discovery doctrine." Id. at 838. In other words, by relying upon the inevitable discovery doctrine, the suppression court seemed to assume that physical evidence discovered as a result of a Miranda violation ordinarily must be suppressed.
To the extent that Bishop did not adequately develop his "departure claim" before the suppression court, it is important to remember why that might be. Bishop was not actually asking the suppression court to hold that Article I, Section 9 provides more protection to defendants as it relates to the inevitable discovery doctrine or as to what constitutes "interrogation" for Miranda purposes. The crux of Bishop's argument before this Court—that we should reject the Patane rule for purposes of Article I, Section 9 of the Pennsylvania Constitution —necessarily arose only after the Superior Court affirmed the suppression court on an alternative basis and held that physical evidence discovered as a result of a Miranda violation is not subject to suppression under Article I, Section 9. See Bishop , 2018 WL 3015333, at *4 (Pa. Super. 2018). Once the Superior Court made that pronouncement, Bishop challenged it at the first available opportunity. See Petition for Allowance of Appeal, 7/18/2018, at 5-11. The Gomez test that today's Majority brings to us from New Mexico does not account for this unique scenario. Bishop is forever barred from obtaining meaningful appellate review in this Court simply because the Superior Court invoked the right-for-any-reason doctrine. Bishop cannot ask this Court to review the suppression court's rationale (because the Superior Court's decision rendered it moot) nor can he seek review of the Superior Court's rationale (because he did not preemptively and clairvoyantly challenge it in the suppression court). In effect, Bishop gets no review from this Court. His claim falls between two stools.
In sum, the waiver rule that the Majority adopts today has no basis in Pennsylvania law, does not account for the unique circumstances of this case, adds nothing of value to our issue preservation jurisprudence, and is sure to be applied (or not applied) in an arbitrary and ad-hoc fashion. I would instead hold that Bishop adequately preserved his claim when he argued, at the first available opportunity after the Superior Court rendered its decision, that Article I, Section 9 of the Pennsylvania Constitution mandates the suppression of physical evidence derived from a Miranda violation.
III.
Turning to the merits of this appeal, I would conclude that Article I, Section 9 of the Pennsylvania Constitution, unlike the Fifth Amendment to the United States Constitution, requires that physical evidence tainted by a Miranda violation must be suppressed. To explain why I believe that a departure from federal constitutional standards is warranted here, I will begin with a discussion of the United States Supreme Court's relevant Fifth Amendment precedent.
In a series of decisions spanning several decades, the Supreme Court has declined to hold that Miranda violations trigger the fruit of the poisonous tree doctrine. This means that, while a defendant's unwarned statement must be suppressed per Miranda , any subsequent statements or derivative physical evidence can be admitted at trial so long as the defendant's confession was voluntary.
The first of these decisions is Michigan v. Tucker , 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). In that case, the police were investigating an assault that left the victim unable to identify her attacker. The police eventually arrested the victim's neighbor, Thomas Tucker, and took him to the police station for questioning. The officers advised Tucker that he had the right to an attorney and that any statements he made could be used against him, but they failed to inform Tucker that he would be provided with an attorney free of charge if he could not afford to retain one himself.
Tucker spoke with the police and offered an alibi. He claimed that he was with a man named Robert Henderson when the victim was attacked. The police then contacted Henderson, who confirmed that he was with Tucker on the day of the crime. But Henderson told the police that he and Tucker had parted ways well before the assault took place. Henderson also claimed that, on the day after the crime, Tucker had scratches on his face, which he told Henderson were inflicted by "some woman [who] lived the next block over." Tucker , 417 U.S. at 437, 94 S.Ct. 2357.
Before trial, Tucker moved to suppress Henderson's testimony. Tucker argued that, since he had not been advised of his full Miranda rights when he revealed Henderson's identity, his Fifth Amendment right against compulsory self-incrimination had been violated. The trial court denied the motion, Henderson testified at Tucker's trial, and Tucker was convicted.
On appeal to the Supreme Court, Tucker argued that evidence derived solely from statements that he made without full Miranda warnings should be excluded from evidence as fruit of the poisonous tree. The Supreme Court rejected this argument, holding that the testimony of a witness who has been identified through an unwarned confession is admissible. The High Court embraced this narrow view of the exclusionary rule by reasoning that a violation of Miranda is not a violation of the Fifth Amendment itself, since the Self-Incrimination Clause only prevents compelled statements from being used against the accused at trial. See Tucker , 417 U.S. at 445-46, 94 S.Ct. 2357 (explaining that "the police conduct at issue here did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege"). From there, the Court explained that, because the purpose of the exclusionary rule is to "compel respect for the constitutional guaranty" by "removing the incentive to disregard it," id. at 446, 94 S.Ct. 2357, and because Miranda is not itself a constitutional right, there is no constitutional violation that can be deterred by suppressing evidence obtained following a Miranda violation.
The most recent United States Supreme Court decision in this area, and the one upon which our Superior Court relied below, is United States v. Patane , 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). In that case, the police were investigating whether the defendant had violated a restraining order that prohibited him from contacting his ex-girlfriend. During the investigation, the police learned from the Bureau of Alcohol, Tobacco, Firearms, and Explosives that the defendant (who was a convicted felon) likely possessed a .40 Glock pistol. Two officers went to the defendant's home and arrested him for violating the restraining order. One of the officers tried to read the defendant Miranda warnings, but got no further than "you have the right to remain silent" before the defendant interjected and asserted that he knew his rights. After that, neither officer attempted to complete the warnings.
When one of the officers asked the defendant about the Glock, he initially responded "I am not sure I should tell you anything about the Glock because I don't want you to take it away from me." Patane , 542 U.S. at 635, 124 S.Ct. 2620. The officer persisted in his questioning, and the defendant eventually confessed that the firearm was in his bedroom. The officer then retrieved the firearm, which the prosecution sought to enter into evidence at the defendant's subsequent trial.
Although Tucker 's rationale—that Miranda is not the Constitution and the exclusionary rule only exists to deter constitutional violations—would seem to allow Patane's gun to be used against him at trial, the state of the law had evolved post- Tucker . Four years prior to Patane , in Dickerson v. United States , 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), the Supreme Court held that " Miranda announced a constitutional rule." Id. at 444, 120 S.Ct. 2326. So when Patane's appeal made its way to the Court of Appeals, that court, relying on Dickerson , held: (1) that the taking of unwarned statements violates a suspect's constitutional rights; and (2) that the deterrence rationale underlying the exclusionary rule thus requires the suppression of fruits of unwarned statements. United States v. Patane , 304 F.3d 1013, 1026-27 (10th Cir. 2002). The Supreme Court ultimately reversed, though in a fractured plurality opinion. Five justices agreed that the Self-Incrimination Clause of the Fifth Amendment "is not implicated by the admission into evidence of the physical fruit of a voluntary statement." Patane , 542 U.S. at 636, 124 S.Ct. 2620. Writing for a three-Justice plurality, Justice Thomas explained that Dickerson 's "re-constitutionalization" of Miranda did not change the fact that "a mere failure to give Miranda warnings does not, by itself, violate a suspect's constitutional rights or even the Miranda rule." Id. at 641, 124 S.Ct. 2620.
Justices Kennedy and O'Connor concurred in the judgment of the Court, but found it "unnecessary to decide whether the detective's failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself" or whether there is any unconstitutional conduct to deter "so long as the unwarned statements are not later introduced at trial." Patane , 542 U.S. at 645, 124 S.Ct. 2620 (Kennedy, J., concurring).
I am not persuaded by the Patane plurality's reasoning, and I would not permit it to govern our own jurisprudence under Article I, Section 9 of Pennsylvania's Constitution. Miranda 's raison d'être is to counteract certain inherently coercive methods of police interrogation. See Miranda , 384 U.S. at 455, 86 S.Ct. 1602 ("[T]he very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals."). We accomplish exactly the opposite result if we exclude only the incriminating statements that police obtain when they withhold Miranda warnings while simultaneously permitting the use of any evidence that those same statements bring to light. As Justice Souter put it in his dissent in Patane : "[t]here is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained." Patane , 542 U.S. at 647, 124 S.Ct. 2620 (Souter, J., dissenting).
Critical to the Patane plurality's conclusion was its view that an exclusionary rule should exist only when it will deter police officers from violating the Constitution. Patane , 542 U.S. at 630, 124 S.Ct. 2620 ; see United States v. Janis , 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) ("If the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted."). Critically, that narrow deterrence-focused understanding of the exclusionary rule is not one that this Court shares as a matter of Pennsylvania constitutional law. In the Article I, Section 8 context, for example, we repeatedly have explained that, unlike the Fourth Amendment's exclusionary rule, the primary purpose of our own exclusionary rule is to protect the underlying constitutional right, not simply to deter police misconduct. Commonwealth v. Arter , 637 Pa. 541, 151 A.3d 149, 167 (2016) ; Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 899 (1991) ("[W]e disagree with [the United States Supreme] Court's suggestion ... that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion.").
Given this Court's recognition that the exclusionary rule is essential to protect the individual rights enumerated in our own Pennsylvania Constitution, and because I have serious misgivings about embracing a rule that would reward police misconduct, I would hold that physical evidence tainted by a Miranda violation must be suppressed as fruit of the poisonous tree under Article I, Section 9 of the Pennsylvania Constitution. The Majority's failure to resolve this important constitutional issue today is regrettable. I remain optimistic that, in a future case, this Court will join the many jurisdictions that have rejected the Patane plurality's analysis as flawed and unpersuasive.
See Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475, 489-90 (2018) (explaining that illegally obtained evidence can be used against the defendant at trial only if it is "gained from an independent source" or if it "would inevitably have been discovered without reference to the police error or misconduct").
Swinomish Indian Tribal Cmty. v. Willup , 2008 WL 9438062, at *3 (Swinomish Tribal Ct. 2008) ("If the remedy of exclusion is to have any meaningful effect, evidence obtained following [Miranda ] violations must be excluded."); State v. Peterson , 181 Vt. 436, 923 A.2d 585, 592 (2007) ("The approach of Patane ... would create an incentive to violate Miranda. We see no justification for a such a retrenchment in these circumstances."); State v. Farris , 109 Ohio St.3d 519, 849 N.E.2d 985, 996 (2006) ("We believe that to hold otherwise would encourage law-enforcement officers to withhold Miranda warnings and would thus weaken Section 10, Article I of the Ohio Constitution."); Commonwealth v. Martin , 444 Mass. 213, 827 N.E.2d 198, 206 (2005) (calling it a "wiser course," to enforce a "bright-line rule that ensures rather than undermines the protection of the important rights and interests embodied" in the Massachusetts Constitution); State v. Knapp , 285 Wis.2d 86, 700 N.W.2d 899, 918-19 (2005) ("The rule argued for by the State would minimize the seriousness of the police misconduct producing the evidentiary fruits, breed contempt for the law, and encourage the type of conduct that Miranda was designed to prevent[.]").
I respectfully dissent.