Supreme Decisions (October)

Comm. v. Valdivia, ___ A.3d ___ (Pa. 2018)

Out of Centre County.  This case was about a consent search of a vehicle by a canine. The facts, briefly, were these. Valdivia was driving along I-80—a known drug corridor between Detroit and New Jersey—in a rented vehicle with out-of-state plates, and he was pulled over by two state troopers for a minor traffic offense (changing lanes without signaling).  Fast forward: because Valdivia provided the troopers differing details of his travel plans, the troopers requested Valdivia’s consent to search his car after giving him a warning for the traffic offense.  Interestingly, Valdivia provided the troopers oral and written consent to search his car, and they had him wait in the back of their cruiser during the search.  What Valdivia didn’t know—or what, at least, the Majority Opinion found was a fact—was that the search was going to be conducted by a canine, not the two troopers.  Accordingly, Valdivia waited in the back of the cruiser for 40 minutes before the canine arrived on scene.  The troopers waited with him.  At no time did he withdraw his consent or object to the canine conducting the search.

The issue before the Pennsylvania Supreme Court boiled down to this: “whether a reasonable person under the circumstances would have understood Valdivia’s general consent given to two human officers to include a search conducted by a later-produced narcotics detection dog”? The Court held that a reasonable person would not have understood Valdivia’s consent to include a canine search.  The Court said this:

Here, Valdivia gave his consent for two human officers to conduct a search of his vehicle. . . . Under these circumstances, we cannot conclude that a reasonable person in Valdivia’s position would have understood that his consent to allow two human officers to search his vehicle would somehow operate to permit the search to be conducted by a canine trained in drug detection.

Further, based on the facts of the case and the exchange between Valdivia and the troopers, the length of time that passed between Valdivia’s consent to search and the occurrence of the search was beyond that which a reasonable person would have expected and understood.

*       *       *

While an individual may place limits on the scope of any consent given, or revoke consent altogether, the failure to do so does not modify the consent to search that was given, nor does it give police carte blanche to conduct a search of limitless scope and duration.

The scope of a search is controlled by the scope of the consent given, which, in turn is determined pursuant to a reasonable person standard under the circumstances at the time the exchange between the officer and the suspect occurs.

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Valdivia gave a general consent to two human police officers to search his car.  The [canine] search that occurred exceed the scope of that consent.  Therefore, the evidence obtained [20lbs. of marijuana worth $160,000] should have been suppressed.

***Personal note: This was a 4-3 decision.  I think that the Majority Opinion is bold, and it’s a win for expanding privacy rights in an era where search-and-seizure law is giving law enforcement more end-arounds the warrant.  However, I found the dissent by Justice Todd to be more persuasive because of the litany of authorities she cites to.  This opinion seemingly puts Pennsylvania in the minority of jurisdictions on this particular issue.  

Comm. v. Lukach, ___ A.3d ___ (Pa. 2018).

Out of Schuylkill County. This was the Pennsylvania Supreme Court’s latest crack at addressing the issue of invoking the right to remain silent, under Miranda, and whether the invocation was clear and free of ambiguity.  The relatively recent case of Berhuis v. Thomkins, 560 U.S. 370 (2010), held that, after being advised of Miranda rights (i.e. the right to counsel; the right to remain silent), if the person to be interrogated wants to remain silent he must invoke that right unambiguously. The very act of remaining silent doesn’t invoke the right.

In this case, Lukach was being questioned in relation to a homicide investigation.  The interrogation wasn’t a lengthy one, but it was one where Lukach was consistently denying involvement in the matter.  There was an interchange, however, in the interrogation where Lukach says to the police officer the following:

“Yeah.  I don’t know just, I’m done talking.  I don’t have nothing to talk about.”

Following this statement, there were several other statements by the interrogator, and to each statement/question Lukach would say either “ok,” “yeah,” or “uh huh”—not providing anything of substance.  Eventually, of course, he agrees to talk and he makes a confession, which leads to “derivative” evidence of the crime. 

At trial Lukach sought suppression of his statements and the resulting evidence, and the trial court granted that request.  The Superior Court affirmed the trial court’s order.  On further review to the supreme court, the Commonwealth argued that Lukach’s statement was ambiguous because of his statement, “I don’t know,” immediately preceding “I’m done talking.”  The Court held that that didn’t render the invocation ambiguous.  It reasoned as follows:

Additionally, just like the prefatory phrase “I think,” the prefatory phrase “I don’t know” does not automatically render any statement that follows ambiguous.  The phrase “I don’t know” can also “be colloquially used to express one’s beliefs and not to suggest that one is pondering or contemplating an action.”  Further, even if we were to believe that the use of the phrase “I don’t know” suggested [Lukach] was “contemplating an action,” it is logical to concluding the ensuing statement of “I’m done talking” meant [Lukach] had finishing “contemplating” and had definitively made up his mind. [Lukach] further evidenced his desire to end the interrogation by telling Chief Wojciechowsky that he had “nothing to talk about.”

The supreme court was unanimous in its holding with Chief Justice Saylor concurring in the result.  Accordingly, Lukach was held to have invoked his right to remain silent, and consequently the police were to scrupulously honor that request and to immediately stop questioning.  Where they did not and they obtained derivative evidence as a result, that evidence too was suppressed.

*** Personal note: I’ve litigated an issue similar to this but related to the invocation of the right to counsel, which also needs to be clear and free of ambiguity.  The caselaw surrounding  ambiguous invocations under Miranda is, in my humble opinion, out of control.  Essentially, if a person wants to invoke their right to remain silent or to counsel they better say something to the tune of this and nothing more: “I want an attorney” and “I want to remain silent.”  Anything short of that such as, “Can you get me an attorney?” or “I don’t want to talk to you” (as in a particular officer), are not sufficiently clear statements as to whether a person is invoking their rights. The examples go on and they are ludicrous.  That aside, however, this case was also important because I believe it corrected an earlier misstatement of the law by the Superior Court back in July in the case of  Comm. v. Jones, 2018 PA Super 208 (July 17, 2018). I blogged about Jones back then and its take that derivative evidence couldn’t be suppressed based upon a Miranda violation.  I believed that holding was wrong, and this case vindicates that position, seemingly righting the ship, although it didn’t expressly overrule Jones. In that regard, Jones is out there mudding the waters.