An arrestee’s anticipatory invocation of his Fifth Amendment right to counsel did not require suppression of statements he made during a subsequent uncounseled interrogation, the Pennsylvania Supreme Court ruled in Commonwealth v. Bland, __ A.3d __ (No. 33 EAP 2013, filed May 26, 2015). Dennis Bland, Jr., was arrested in Florida for a homicide in Philadelphia. A lawyer with the Defender Association of Philadelphia sent Bland a form letter via facsimile that recited an invocation of the Miranda-based right to counsel. Bland signed the form and returned it to the Association, which forwarded copies to the Philadelphia Police Department’s homicide unit and the District Attorney’s office. Bland waived extradition and was transported to Philadelphia, where he remained in police custody. Six days after Bland had signed the form in Florida, a detective provided him with Miranda warnings. During ensuing questioning, Bland confessed to murder and provided a written confession. Prior to trial, he sought to suppress his written statement, claiming that the police had violated his rights under Miranda and against self-incrimination. The suppression court granted Bland’s motion and excluded his confessions from evidence.
The Commonwealth lodged an interlocutory appeal to the Superior Court, which affirmed via memorandum decision. The majority acknowledged prior Pennsylvania court decisions recognizing that Miranda-based rights cannot be invoked anticipatorily, but held that custody, rather than custodial interrogation, serves as the appropriate litmus test for a valid invocation. In a dissenting opinion, then-President Judge, now-Justice, Stevens cited a line of decisions from other jurisdictions holding that custody is not, in and of itself, a sufficient condition, since actual or imminent interrogation is also required.
Upon further review, the Supreme Court agreed with the Stevens dissent, holding that an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of custodial interrogation. Writing for the majority, Chief Justice Saylor observed that a valid invocation of the right to counsel should be made in close temporal proximity to the circumstances giving rise to the relevant concern, which in Miranda was the coercive environment of custodial interrogation. On that point the Court noted that the Fifth Amendment prohibits only compelled, not voluntary, self-incrimination. The majority also posited that its ruling is aligned with federal court decisions that have refined Miranda to reflect an appropriate balance between the rights of the accused and the state’s compelling interest in effective police investigations. Finally, the Court rejected Bland’s claim for approval of anticipatory invocations of a right to counsel under Article I, Section 9 of the Pennsylvania Constitution since that provision is coextensive with the Fifth Amendment and affords no greater protection.
Justice Baer wrote a short concurring opinion to express his “distaste” for Bland’s invocation of the right to counsel via facsimile, and the transmission of the document from an unknown lawyer to a police department with more than 7,000 employees and a District Attorney’s office with more than 600.
Justice Todd authored a dissenting opinion. In her view, the polestar principle established by Miranda – which bars questioning when an arrestee indicates “at any stage of the process” that he wishes to consult with an attorney – and its progeny is that any invocation of the Fifth Amendment right to counsel by an individual while he or she is in custody must be honored before police can question that person. This is because, as these cases consistently recognize, “an individual who is in custody is subject to the inherently coercive pressures attendant to that situation and its concomitant deleterious effect on the individual’s ability to exercise free will and to make truly voluntary decisions.”