holding that, despite Miranda violation, discovery of evidence was inevitable where officers already had obtained a valid search warrant
How later courts described this case
- holding that, despite Miranda violation, discovery of evidence was inevitable where officers already had obtained a valid search warrant
- evidence regarding discovery of marijuana in defendant’s residence properly admitted under inevitable discovery rule
- evidence regarding discovery of marijuana in *891 defendant’s residence properly admitted under inevitable discovery rule
Written by the judges who cited it.
The opinion
JOHNSON, Judge,
dissenting:
I agree with the majority that Appellant waived his Miranda rights. However, I believe that this waiver was implicit, and not explicit, as is required by the Pennsylvania Supreme Court in Commonwealth v. Bussey, 486 Pa. 221 , 404 A.2d 1309 (1979). Accordingly, I dissent and I would reverse the judgment of sentence and remand for a new trial.
The Bussey court defined explicit waiver as “an outward manifestation of a waiver such as an oral, written or physical manifestation” Id., 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Bussey discussed the United States Supreme Court case of North Carolina v. Butler, 441 U.S. 369 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979), saying that:
the United States Supreme Court held an implicit waiver of rights could be found where an accused expresses understanding of his rights and gives a statement without expressly waiving his rights. We could distinguish the instant case on the basis that Bussey never expressed an understanding of his rights prior to incriminating himself at 1:45 a.m., but we decline to do so and we decline to follow North Carolina v. Butler, supra.
Bussey, 486 Pa. at 230 , 404 A.2d at 1314 . Thus, our supreme court made it clear that a waiver, which consists of an expression of understanding of rights plus an inculpatory statement, does not qualify as an explicit waiver. Id. It may be enough to constitute an implicit waiver, but is insufficient to effectively waive appellant’s Miranda rights applying Pennsylvania state law.
The explicit waiver requirement is discussed in Commonwealth v. Nixon, 288 Pa.Super. 78 , 431 A.2d 296 (1981). In Nixon , a panel of our Court stated:
As mentioned previously, appellant was read his Miranda rights and was then asked if he understood them and if, keeping them in mind, he wished to talk. Since appellant did not answer this question, and instead mere *161 ly proceeded to respond to general background inquiries, we cannot say that an explicit waiver has occurred. Indeed, this particular set of facts is strongly indicative of an implicit waiver, rather than an explicit one. Certainly, there was no “outward manifestation of a waiver,” such as an affirmative response to the question regarding appellant’s desire to speak despite his right not to (i.e. an oral “yes” or a physical nod). And, as already noted, the available forms for a written waiver were not used. Hence, we are unable to say that an explicit, Bussey- type waiver took place during the subject interrogation.
Id., 288 Pa.Superior Ct. at 82, 431 A.2d at 298 . The Bussey decision was reached after appellant Nixon had filed his appeal. The Nixon court refused to apply Bussey retroactively, and affirmed the judgment of sentence. However, the reasoning of the Nixon court and the interpretation the Nixon court gives to Bussey is in keeping with the mandate of our supreme court in Bussey . A different interpretation, in my view, renders the requirement of an explicit waiver meaningless.
As noted by the court in Nixon , a physical manifestation of waiver would exist where an appellant nods his head in answer to a question regarding appellant’s desire to speak. Nixon, supra. It is not a physical manifestation of explicit waiver for an appellant to merely respond to the substantive police question and thereby incriminate himself. An immediate inculpatory response may indicate an implicit waiver, but certainly not an explicit one. The fact that appellant acknowledged that he understood his rights does not mean that he also waived them. It is a logical inference to say that when an appellant responds to substantive police questions he is waiving his right to remain silent, etc. However, the thrust of Bussey is that Pennsylvania courts are not to draw inferences that a waiver exists; rather, they are to look for an explicit waiver. To equate an inculpatory response by an appellant with an explicit waiver is to render the word “explicit” meaningless surplusage.
*162 The majority distinguishes Bussey , in part, based on the fact that in Bussey there was a delay of a quarter of an hour between the reading of the Miranda warnings and the accused’s statement. The majority notes that appellant Speaks’ expression of understanding and his giving of a statement occurred almost simultaneously. I find this to be all the more indicative of a lack of explicit waiver. Our supreme court stated in Bussey that “by our ruling, we seek to promote a deliberate and conscious decision before any statement is given. Common sense teaches persons often speak before they think.” Bussey, supra, 486 Pa. at 231 n. 14, 404 A.2d at 1314 n. 14 (emphasis in original). Such was the case sub judice. To find that an explicit waiver exists under the facts before us ignores the purpose and express language of Bussey . Given my position on this issue, I would not reach the other issues raised by appellant.