Commonwealth v. Reiland

¶1(concurring):

¶2I agree with the majority that appellant’s confession was properly obtained. I disagree, however, with the majority’s reliance on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), which I do not consider apposite. In my view we need rely only on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶3Appellant was arrested at his home at approximately 4:05 a. m. on January 25, 1971. The arresting officers first informed appellant that they had a warrant for his arrest on burglary charges. Then one of the officers read appellant his Mirandawarnings from a card and asked his usual follow-up question: “Do you understand these rights I have explained to you, and having these *117rights in mind, do you wish to talk to us now?” The officers did not interrogate appellant, nor did appellant volunteer any information. According to one officer, appellant “was sort of like he didn’t want to say anything and like he did, but not right there.” The officers immediately took appellant to the police station and at approximately 4:25 a. m. turned him over to the station officers.

¶4The station officers read appellant his rights again, and also read him a waiver form. Then they gave the form to appellant to read for himself, and after reading it appellant signed it. Immediately thereafter, at approximately 4:45 a. m., appellant gave a statement admitting his participation in the burglaries. Appellant never requested an attorney.1

¶5Appellant claims that since he initially declined to talk to the police at his home, the station police had no right to interrogate him. In support of this claim he cites Miranda.

¶6It is true that Mirandastates:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. 384 U.S. 473-474, 86 S.Ct. 1628.

¶7I do not think, however, that the initial encounter between appellant and the arresting officers constituted *118the sort of “in-custody interrogation” that Mirandacontemplates. The arresting officers’ primary responsibility was to serve the arrest warrant and take appellant to the station, where investigating officers would conduct the interrogation. The Mirandawarnings that the arresting officer gave appellant were not a preliminary to interrogation so much as a prophylactic measure to prevent later exclusion of any statements appellant might make in his excitement. Although appellant was certainly “in custody” from the moment of his arrest, the interrogation proper did not begin until he arrived at the station house.2

¶8Mirandaprovides that after the warnings have been given, “the individual may knowingly and intelligently waive these rights and agree to answer questions and make a statement.” 384 U.S. 479, 86 S.Ct. 1630. “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.” 384 U.S. 475, 86 S.Ct. 1628. The burden is upon the government, however, to demonstrate the waiver. Id.Here appellant was read a waiver form, read it himself, signed it, and gave a statement, all within minutes of his arrival at the station, and no more than approximately 40 minutes after his arrest. In my view, by proving these facts the government met its burden of demonstrating that there was no physical or psychological coercion, and that appellant understood what his rights were and voluntarily relin-guished them.

¶9There are several reasons why I disagree with the majority’s reliance on the statement in Michigan v. Mosley, supra,that “the admissibility of statements obtained after the person in custody has decided to remain silent *119depends under Mirandaon whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321.

¶10The facts of Mosleyare different from the facts of this case. In Mosleytwo distinct crimes were involved. The defendant was arrested for robbery and given his warnings. When he refused to talk, questioning ceased. More than two hours later (“a significant period of time,” 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 322), another police officer gave the defendant his warnings again, and began questioning him about a murder. The defendant then made a statement implicating himself not in the robbery but in the murder. Thus, although the language of Mosleysounds applicable to the present case, on its facts it is not; by its citation here the majority has not applied but has extended the holding of Mosley.

¶11I regard this extension as quite unnecessary. Not only is the language of Mosleybroader than required by the facts of the present case, but it is broader than required by the facts of Mosleyitself; and it is- also broader than any test used by the Pennsylvania Supreme Court in Mosley-type circumstances. See, e. g., Commonwealth v. Grandison, 449 Pa. 231, 296 A.2d 730 (1972) (substantial change in circumstances); Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971) (changed situation).

¶12The danger inherent in the majority’s opinion is that it may be applied in a manner we neither anticipate nor intend. Since a state has the power to require higher standards for police practices under state law than is required by the Federal Constitution,3Michigan v. Mosley, supra at 111, 119, 96 S.Ct. at 325, 334, 46 L.Ed.2d at 326, 331 (dissenting opinion of Brennan, J.), I think that until a more appropriate case arises we should reserve judgment on whether to adopt the broad language of Mosley.