IV. Pennsylvania Analysis
Under Pennsylvania law, the Sixth Amendment right to counsel attaches at arrest. Commonwealth v. Karash, 513 Pa. 6, 518 A.2d 537, 541 (1986); Commonwealth v. Laney, 1999 Pa 68, 729 A.2d 598, 601 (Pa 1999); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).
The Sixth Amendment guarantees the right to representation by counsel not only at trial but at earlier “critical” stages. Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct 477, 484, 88 LEd.2d 481 (1985). After the Sixth Amendment has attached, “government efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.” Michigan v. Jackson, 475 U.S. 625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). As the United States Supreme Court observed in Brewer v. Williams, 430 U.S. 387, 97 S.Ct, 1232, 51 L. Ed.2d 424 (1977), there exists a clear rule, established in Massiab v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) that “once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.” ld., 430 U.S. at 402. “If police initiate interrogation after a defendant’s assertion.. of his [Sixth Amendment] right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 U.S. at 637.
Interrogation includes when “a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-301, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980). “Functional equivalent” is defined as “any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect.” Id. at 301. Police interaction with the defendant need not amount to “interrogation.” The prohibited police-initiated contact is indeed broader, encompassing police-initiated “further discussions, ““police-initiated conversation” or “discussion,” or any statements made by the defendant “deliberately elicited” by police. Smith v. Illinois, 469 U.S. 91, 95, 105 S 490, 83 L 488 (1984); Michigan v. Harvey, 494 U.S. 344,345, 348-49, 110 S.Ct. 1176, 108 L 293 (1990).
Here, defendant Kerekes was arrested by Virginia authorities on a fugitive warrant for charges originating in Pennsylvania. See Report Exhibit 1. The Sixth Amendment right to counsel attached. Kerekes then very clearly invoked the right to counsel by telling authorities he would like to speak to his lawyer prior to questioning and identifying who his lawyer(s) were. Report Exhibit 1. Despite the attachment of his Sixth Amendment right to counsel and his clear request for counsel, law enforcement read the affidavit of probable cause and criminal complaint to the defendant which contained third party statements regarding the defendant and the crimes charged. This was the “functional equivalent” of interrogation.
In Commonwealth v. Stevenson, 2006 Pa. D&C LEXIS 80 (Dauphin) aff’d without opinion 927 A.2d 658 (Pa.Super 2007), defendant had been arrested and Mirandized and a detective read to him a search warrant and supporting affidavit of probable cause. Stevenson at 3-4. The affidavit contained statements made by third parties which incriminated the defendant. Id. Following the reading, the defendant was re-Mirandized, waived his right to an attorney and made statements. ld. The court suppressed the statements, finding that the reading by the detective of the probable cause affidavit was a police-initiated discussion designed and likely to elicit an incriminating response from the defendant since it contained a third party statement. ld. at 14.
In Commonwealth v. Gaul, 590 Pa, 175, 912 A.2d 252 (2006), the police arrested the defendant, took him to a detention center and read the defendant the affidavit of probable cause, acknowledging he should give him Miranda warnings. Gaul at 178. The Pennsylvania Supreme Court found that this was the functional equivalent of questioning because the officer should have known his behavior was likely to evoke an incriminating response. Id. at 183.
Under Pennsylvania authority, Kerekes was arrested, his Sixth Amendment right to counsel had attached and he invoked it. Pennsylvania authorities by requesting discussion of his background, employment history, military history, etc. violated Kerekes’ Sixth Amendment right. Further, Pennsylvania authorities engaged in the functional equivalent of interrogation when they read the affidavit of probable cause to him and confronted him with third party statements, setting up a situation they should have known would likely elicit a response. The geography of the interrogation does not shield Pennsylvania authorities from the consequences of their behavior when outside the Commonwealth acting under color of this state’s law. All statements and information provided by the defendant and all fruits thereof should be suppressed as they were obtained in violation of Kerekes’ Sixth Amendment rights.
Under Pennsylvania law, the Sixth Amendment right to counsel attaches at arrest. Commonwealth v. Karash, 513 Pa. 6, 518 A.2d 537, 541 (1986); Commonwealth v. Laney, 1999 Pa 68, 729 A.2d 598, 601 (Pa 1999); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).
The Sixth Amendment guarantees the right to representation by counsel not only at trial but at earlier “critical” stages. Maine v. Moulton, 474 U.S. 159, 171, 106 S.Ct 477, 484, 88 LEd.2d 481 (1985). After the Sixth Amendment has attached, “government efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.” Michigan v. Jackson, 475 U.S. 625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). As the United States Supreme Court observed in Brewer v. Williams, 430 U.S. 387, 97 S.Ct, 1232, 51 L. Ed.2d 424 (1977), there exists a clear rule, established in Massiab v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) that “once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.” ld., 430 U.S. at 402. “If police initiate interrogation after a defendant’s assertion.. of his [Sixth Amendment] right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 U.S. at 637.
Interrogation includes when “a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-301, 64 L.Ed.2d 297, 100 S.Ct. 1682 (1980). “Functional equivalent” is defined as “any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect.” Id. at 301. Police interaction with the defendant need not amount to “interrogation.” The prohibited police-initiated contact is indeed broader, encompassing police-initiated “further discussions, ““police-initiated conversation” or “discussion,” or any statements made by the defendant “deliberately elicited” by police. Smith v. Illinois, 469 U.S. 91, 95, 105 S 490, 83 L 488 (1984); Michigan v. Harvey, 494 U.S. 344,345, 348-49, 110 S.Ct. 1176, 108 L 293 (1990).
Here, defendant Kerekes was arrested by Virginia authorities on a fugitive warrant for charges originating in Pennsylvania. See Report Exhibit 1. The Sixth Amendment right to counsel attached. Kerekes then very clearly invoked the right to counsel by telling authorities he would like to speak to his lawyer prior to questioning and identifying who his lawyer(s) were. Report Exhibit 1. Despite the attachment of his Sixth Amendment right to counsel and his clear request for counsel, law enforcement read the affidavit of probable cause and criminal complaint to the defendant which contained third party statements regarding the defendant and the crimes charged. This was the “functional equivalent” of interrogation.
In Commonwealth v. Stevenson, 2006 Pa. D&C LEXIS 80 (Dauphin) aff’d without opinion 927 A.2d 658 (Pa.Super 2007), defendant had been arrested and Mirandized and a detective read to him a search warrant and supporting affidavit of probable cause. Stevenson at 3-4. The affidavit contained statements made by third parties which incriminated the defendant. Id. Following the reading, the defendant was re-Mirandized, waived his right to an attorney and made statements. ld. The court suppressed the statements, finding that the reading by the detective of the probable cause affidavit was a police-initiated discussion designed and likely to elicit an incriminating response from the defendant since it contained a third party statement. ld. at 14.
In Commonwealth v. Gaul, 590 Pa, 175, 912 A.2d 252 (2006), the police arrested the defendant, took him to a detention center and read the defendant the affidavit of probable cause, acknowledging he should give him Miranda warnings. Gaul at 178. The Pennsylvania Supreme Court found that this was the functional equivalent of questioning because the officer should have known his behavior was likely to evoke an incriminating response. Id. at 183.
Under Pennsylvania authority, Kerekes was arrested, his Sixth Amendment right to counsel had attached and he invoked it. Pennsylvania authorities by requesting discussion of his background, employment history, military history, etc. violated Kerekes’ Sixth Amendment right. Further, Pennsylvania authorities engaged in the functional equivalent of interrogation when they read the affidavit of probable cause to him and confronted him with third party statements, setting up a situation they should have known would likely elicit a response. The geography of the interrogation does not shield Pennsylvania authorities from the consequences of their behavior when outside the Commonwealth acting under color of this state’s law. All statements and information provided by the defendant and all fruits thereof should be suppressed as they were obtained in violation of Kerekes’ Sixth Amendment rights.
