Right against Self-incrimination; Physical Evidence Recovered as a Result of an Unwarned Statement
Commonwealth v. Bishop, 2018 WL 3121801 (Pa. Super. 2018) (unpublished), allocatur granted Oct. 17, 2018, appeal docket 37 EAP 2018
Scott Bishop, a parolee, tested positive for drugs during a visit from his parole officer at his home in Philadelphia and was handcuffed and taken into custody, but received no Miranda warning. While in custody at his home, while his parole officer conducted a search of his home, Bishop answered questions asked by the parole officer, admitting there was a gun in the house and where it was located. The trial court suppressed the unwarned statements Bishop made to the parole officer, but not the incriminating physical evidence the parole officer found based on Bishop’s answers. Bishop was convicted of possession of a firearm, possession of marijuana, and possession of paraphernalia. On appeal, he challenged the admission of the physical evidence under the fruit of the poisonous tree doctrine, relying on the right against self-incrimination under both the state and federal constitutions.
Superior Court affirmed, noting that the Pennsylvania Supreme Court has not addressed the issue under the Pennsylvania Constitution, but that the United States Supreme Court has addressed the issue under the Fifth Amendment. The United States Supreme Court’s ruling on the issue in United States v. Patane, 542 U.S. 630 (2004) (plurality), adopted by the Superior Court in Commonwealth v. Abbas, 862 A.2d 606, 610 n.3 (Pa. Super. 2004), provides that “introduction of nontestimonial derivative evidence does not implicate the Self–Incrimination Clause of the Fifth Amendment.” Slip Op. at 9. Quoting and relying on its previous holding in Abbas, the Superior Court held:
In Abbas, we adopted the Patane approach.
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. Id. at 609–10 (footnotes omitted).
We therefore agree with the Commonwealth that the physical evidence was not subject to suppression, even if Appellant is correct that the statement was subject to suppression. Therefore, the court did not err in admitting the evidence.
Slip Op. at 9-10.
Bishop sought allocatur on the issue of whether the Pennsylvania Constitution affords greater protection than the United States Constitution, and the Supreme Court granted it.
The issue on appeal, as stated by Bishop, is:
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?
For more information, contact Kevin McKeon or Dennis Whitaker.