Petition for Writ of Certiorari — Keith Lamar Foster, Petitioner v. Pennsylvania

Supreme Court briefJun 18, 2025

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APPENDIX A

Commonwealth v. Foster, 332 A.3d 1187 (2025)

332 A.3d 1187

Supreme Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee

Keith Lamar FOSTER, Appellant

No. 34 WAP 2023

Argued: October 10, 2024

Decided: March 20, 2025

Synopsis

Background: In prosecution for rape of unconscious person

and sexual assault, the Court of Common Pleas, Allegheny

County, Criminal Division, No. CP-02-CR-006450-2021,

Anthony M. Mariani, J., 2022 WL 20303482, granted

defendant's motion to suppress, and Commonwealth

appealed. The Superior Court, No. 519 WDA 2022, Bender,

P.J.E., 301 A.3d 923, 2023 WL 4118645, reversed and

remanded. Defendant's petition for allowance of appeal was

granted.

The Supreme Court, No. 34 WAP 2023, McCaffery, J., held

that police detective's misrepresentation to defendant that he

was not suspect in sexual assault did not render his statements

involuntary.

Affirmed.

Wecht, J., concurred and filed opinion in which Donohue, J.,

joined and Dougherty, J., joined in part.

Procedural Posture(s): Appellate Review; Pre-Trial Hearing

Motion.

*1189 Appeal from the Order of the Superior Court entered

June 22, 2023, at No. 519 WDA 2022, Reversing the

Order of the Court of Common Pleas of Allegheny County

entered April 18, 2022, at No. CP-02-CR-006450-2021, and

remanding. Anthony M. Mariani, Judge

Attorneys and Law Firms

Kevin Francis McCarthy, Esq., Ronald Michael Wabby

Jr., Esq., Allegheny County District Attorney's Office, for

Appellee.

Brandon Paul Ging, Esq., Steven Anthony Tehovnik, Esq.,

Allegheny County Public Defender's Office, for Appellant.

Spencer Hamilton Bradley, Esq., Dauphin County Public

Defender's Office, Patrick Aloysius Casey, Esq., Donna Ann

Walsh, Esq., Myers, Brier & Kelly, LLP, Brian McNeil, Esq.,

York County Court of Common Pleas - Public Defender's

Office, for Amicus Curiae Pennsylvania Association of

Criminal Defense Lawyers.

TODD, C.J., DONOHUE, DOUGHERTY,

MUNDY, BROBSON, McCAFFERY, JJ.

WECHT,

OPINION

JUSTICE McCAFFERY

Our criminal justice system tolerates some degree of police

subterfuge during investigative interviews. This typically

involves telling a suspect that a co-defendant implicated them

in the crime when no such statement was made, or that police

recovered evidence implicating the suspect, when, in fact,

they have not. 1 Regardless of the specific misrepresentation,

both this Court and the United States Supreme Court have

long held that a suspect's ensuing inculpatory statement is

admissible at trial so long as it was made voluntarily under the

totality of the circumstances — that is, it was the product of

the defendant's “free and unconstrained choice.” Schneckloth

v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973); Commonwealth v. Nester, 551 Pa. 157, 709 A.2d

879, 882 (1998).

In this appeal by permission, we consider whether the

investigating detective's opening statement to appellant Keith

Lamar Foster (Foster) that he was not a suspect, when in

fact the detective had already obtained a search warrant for

his DNA, so misrepresented the nature of their interaction

as to render Foster's subsequent statement involuntary under

the totality of the circumstances test prescribed by the Fifth

Amendment of the United States Constitution. 2 We agree

with the Superior Court that, under the circumstances present

here, the misrepresentation, itself, did not outweigh the non-

Commonwealth v. Foster, 332 A.3d 1187 (2025)

coercive, voluntary nature of the interview. In other words,

we hold that a misrepresentation to an interviewee that he

is not a *1190 suspect, when in fact police consider him

a suspect, does not, per se, transform a voluntary statement

into an involuntary one under the Fifth Amendment. Thus, we

affirm the order of the Superior Court.

The relevant facts underlying Foster's suppression claim are

as follows. 3 At approximately 10:00 p.m. on the evening

of January 25, 2019, K.C. (Victim) drove to Preeti's Pit, a

bar in the Strip District of Pittsburgh, where she met two

friends. Over the next few hours, she had three mixed drinks,

which she claimed made her feel more intoxicated than

usual. Although she recalled leaving the bar, Victim did not

remember driving her car and had no recollection of how she

got home.

Victim woke up the next morning in her bed with her

boyfriend. After realizing her car was missing, she contacted

the staff at Preeti's and learned that she had crashed her

car about two blocks from the bar. Because she “didn't feel

right,” had vaginal pain, and her boyfriend told her they did

not have sex the night before, Victim went to the hospital

and requested a sexual assault examination. N.T., 8/26/2021,

at 8. Although the incident was reported to the police, the

investigation stalled because Victim was unsure whether she

had been sexually assaulted.

However, in May of 2020, when Victim's lab results revealed

the presence of unknown male DNA, Pittsburgh Police

Detective Bryan Sellers was assigned to investigate the case.

After interviewing Victim's friends and other people who

were at the bar on the night in question, Detective Sellers

learned that Foster worked at Preeti's and after leaving work,

he was the person who found Victim in her crashed car. Foster

claimed Victim was visibly intoxicated; therefore, he drove

her back to Preeti's, and left her with staff members, who

ordered a Lyft to take her home.

Detective Sellers arranged to interview Foster. When Foster

did not show up on the scheduled date, the detective made

several unsuccessful attempts to contact him. Recognizing

that Foster was purportedly alone with Victim during some

part of the evening in question, Detective Sellers applied for a

search warrant for Foster's DNA. Meanwhile, Foster learned

the police wanted to talk to him, so he contacted the detective

to arrange a meeting.

On November 2, 2020, Foster voluntarily traveled to the

Pittsburgh Police Headquarters to meet with Detective

Sellers. Earlier that same day, the detective had applied for a

second search warrant, since the first one had expired.

Once Foster arrived, Detective Sellers escorted him into an

interview room before leaving for a few minutes. 4 Foster

was not handcuffed or restrained and was in possession of a

water bottle and his cell phone. In fact, he talked to someone

on his cell phone while he waited for the detective to return.

After exchanging a few pleasantries, Detective Sellers told

Foster: “I appreciate you coming in. ... Like I told you over

the phone, like right now you're not a suspect. ... I'm just

trying to talk to everybody that [Victim] encountered.” Video

Interview, 11/2/2020, at 12:44:18-12:44:39 (emphasis added).

At that point, Foster asked for a tissue. Detective Sellers

briefly left the room, returned shortly thereafter with a tissue,

and then left again to answer a phone call. During that time,

the interview room door remained open. Detective Sellers

returned *1191 approximately three minutes later, and again

told Foster he was not a suspect:

Like I explained, I mean, you're, right

now you're not a suspect. Okay. ... I'm

just trying to track down everybody

[Victim] ... came in contact with and,

... just talk to them, okay. Um. I

talked to ... seven people, I still have

you, ... and there's like two or three

more people. ... If at any time though,

you know based on how this goes,

if, if it does come down to ... there

might be something there, we'll stop

the interview and then I'll read you

your rights. And then you can make

that decision.

Id. at 12:47:59-12:48:39 (emphasis added).

The interview proceeded with some background information

before Detective Sellers asked Foster about his recollection

of the night in question. At all times, the tone of the interview

was conversational, and Detective Sellers never acted in an

accusatory manner. Foster told the detective that he had been

working at Preeti's that night, and, after he left, he encountered

Victim in her crashed car. Foster described her as intoxicated

and argumentative. He stated he was able to coax Victim out

Commonwealth v. Foster, 332 A.3d 1187 (2025)

of her car, and drove her back to the bar, where he left her

with other staff before going home. Towards the end of the

interview, Detective Sellers asked Foster if he had “ever been

physical” or “had sex before” with Victim. Video Interview at

12:59:22-12:59:31. Foster responded “No” to both questions.

Id. Detective Sellers then asked Foster to provide a DNA

sample. He stated:

So what I've been doing is ... I've been

getting DNA samples. Cause she went

to the hospital and had a rape kit done.

And what I need is from her boyfriend,

um, from the Lyft driver and from you.

Is it okay if I would get your DNA?

Id. at 12:59:56-13:00:25. Foster replied, “Yes.” Id. at

13:00:25.

Detective Sellers explained the process of obtaining a buccal

swab and assured Foster that his DNA sample would only

be used for the present case; if it came back negative, it

would be destroyed. At that point, Detective Sellers admitted

to Foster that he “actually [had] a search warrant” for him.

Video Interview at 13:01:04. The detective clarified that

he applied for the initial warrant while he was trying to

locate Foster, and since that warrant had expired, he applied

for a second warrant earlier that day. Detective Sellers told

Foster he could wait until the new warrant was signed by a

judge, or he could simply agree to proceed with the buccal

swab based on the expired warrant. Foster elected to proceed

immediately. The entire interview, including the buccal swab,

lasted approximately 25 minutes.

After the lab results indicated Foster's DNA matched the

unknown male DNA from the rape kit, Foster was arrested

and charged with one count each of rape of an unconscious

person and sexual assault. 5 On November 1, 2021, Foster

filed an omnibus pretrial motion seeking suppression of

his statements to Detective Sellers, which he claimed were

obtained during the course of a custodial interrogation absent

the requisite Miranda 6 warnings. He asserted generally that

the statements were “obtained in violation of [his] rights

under the Fourth, Fifth and Fourteenth Amendments to the

United States Constitution, as well as Article One, Sections

Eight and Nine of the Pennsylvania Constitution.” Omnibus

Pre-Trial Motion, 11/1/2021, at 3. The Commonwealth filed

a brief in opposition, arguing that Foster was not in police

custody at the time of the interview (thus, no Miranda

warnings were required), and, in any event, his statements

were voluntary. *1192 Foster responded in a reply brief that

his statement was not the product of a free and unconstrained

choice to speak to Detective Sellers because the detective

“misrepresented the fundamental nature of the interaction” by

telling Foster he was not a suspect. Reply Brief in Support of

Motion to Suppress, 3/29/2022, at 9.

The suppression court conducted a bifurcated hearing. On

February 15, 2022, the court heard testimony from Detective

Sellers and viewed the videotaped interview. Although the

court indicated it was inclined to grant Foster's motion,

it permitted the parties to brief the issue, and scheduled

additional oral argument for April 19th. Following that

argument, the suppression court entered an order granting

Foster's motion to suppress any statement he made prior to

being issued Miranda warnings.

The

court

determined

that

Detective

Sellers’

misrepresentation to Foster that he was not a suspect, when

in fact the detective had already obtained a search warrant

for his DNA, deprived Foster of his ability to make a “free

and unconstrained choice to undergo an interview relative to

the [alleged] sexual assault of” Victim. Suppression Court

Opinion at 2. In response to the Commonwealth's claim that

Foster was simply one of a few men who were known to have

been alone with Victim on the night of the alleged assault, the

suppression court emphasized that Detective Sellers attested

Foster was a “viable suspect” in the probable cause affidavit

accompanying the warrant application. N.T., 4/18/2022, at

14; see also N.T., 2/15/2022, at 19. Nevertheless, the court

stated it did not believe Detective Sellers was “trying to be a

wise guy,” but instead “misunderstood what he was doing.”

N.T., 4/18/2022, at 14-15; see also, N.T., 2/15/2022, at 30-31

(“I do not challenge the detective's good faith. I believe he

was acting in good faith based on his understanding of what

was happening.”). In the suppression court's view, Detective

Sellers’ statement to Foster that he was “not a suspect,” before

expecting him to “make a valid decision on asserting [his]

rights or not,” was “a different kind of misrepresentation that

goes to the voluntariness of the statement.” N.T., 4/18/2022,

at 15.

Consequently, the suppression court found Foster's “decision

to speak with Detective Sellers was borne solely from [the

detective's] affirmative misrepresentation that [Foster] was

not a suspect in [the] sexual assault[,]” and not the “product

Commonwealth v. Foster, 332 A.3d 1187 (2025)

of an informed and conscious choice.” Suppression Court

Opinion at 3. Additionally, without explicitly addressing

Foster's Miranda claim, the court indicated that it did not

believe Foster was in custody at the time of the interview.

See id. at 2 (“[Foster] was not restrained or informed that he

was not permitted to leave and the interview did not appear

coercive.”).

The Commonwealth filed a timely, interlocutory appeal to

the Superior Court, which reversed the suppression ruling

and remanded for further proceedings. See Commonwealth

v. Foster, 301 A.3d 923 (Pa. Super. 2023) (unpub. memo. at

*8). The Superior Court first recited its standard of review

— noting it defers to the suppression court's findings of fact

and credibility determinations but not to the court's legal

conclusions. Id. at *2 (citation omitted). Relying primarily

upon a prior Superior Court decision, Commonwealth v.

Roberts, 969 A.2d 594 (Pa. Super. 2009), 7 the panel observed

that the proper test for determining whether a statement is

voluntary *1193 is the totality of the circumstances. See

Foster, 301 A.3d at *4-*7. The Court noted that this test

involves consideration of factors such as the duration and

conditions attendant to the interview, and the attitude of the

interviewer, as well as any other factors “that could drain

a person's ability to withstand coercion.” Id. at *5 (citing

Roberts, 969 A.2d at 599).

The Superior Court first refuted the Commonwealth's

assertion that the suppression court did not consider any

of the pertinent circumstances surrounding the interview.

See Foster, 301 A.3d at *7. Rather, the panel observed the

court “recognized that Foster was not restrained or informed

that he was not permitted to leave, and the interview did

not appear coercive.” Id. (citation and some punctuation

omitted). Nevertheless, the suppression court did not refer

to the duration or conditions of the interview, or “Foster's

psychological state[.]” Id. Upon its consideration of all the

relevant factors, the Superior Court opined:

In sum, it is apparent that Foster

willingly came to the police station for

the interview. He was not handcuffed

or locked in the room, he was

permitted to use his cell phone

during the five minutes he waited for

the interview to commence, and the

duration of the interview was brief.

The [suppression] court expressly

found that Detective Sellers’ manner

and demeanor during the interview

was not coercive. The totality of these

circumstances establish that Foster's

statements were voluntary.

Id. (citation omitted).

The panel further disputed the suppression court's conclusion

that Detective Sellers’ misrepresentation to Foster that he

was not a suspect, itself, rendered his statement involuntary.

See Foster, 301 A.3d at *8. Indeed, the panel referred to

its prior decision in Roberts, and this Court's ruling in

Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264

(1989) — asserting that in both cases, the defendant's

statement was deemed voluntary despite much more coercive

circumstances than those present here. See Foster, 301

A.3d at *8; see also Hughes, 555 A.2d at 1268-1269,

1273-1274 (confession admissible despite the fact that minor

suspect's interview lasted for hours, involved two crimes,

and police told suspect he failed polygraph test when result

was inconclusive); Roberts, 969 A.2d at 595-597, 599-601

(confession admissible even though officers mistakenly

informed defendant that he could not be prosecuted because

statute of limitations expired). Accordingly, under the totality

of the circumstances surrounding Foster's interview with

Detective Sellers, the Superior Court concluded the statement

was voluntary and the suppression court erred by granting

Foster's motion to suppress. 8 Foster, 301 A.3d at *8.

*1194 Foster petitioned this Court for allowance of appeal,

which we granted, rephrasing the issue as follows:

Whether, under the applicable

totality of the circumstances test,

the detective's representation to

[Foster] that he was not a

suspect rendered [Foster's] subsequent

statement involuntary?

Commonwealth v. Foster, 310 A.3d 718 (Pa. 2023) (per

curiam). 9

When reviewing a challenge to a suppression court ruling,

we are “limited to determining whether the factual findings

Commonwealth v. Foster, 332 A.3d 1187 (2025)

are supported by the record and whether the legal conclusions

drawn from those facts are correct.” Commonwealth v.

Yandamuri, 639 Pa. 100, 159 A.3d 503, 516 (2017) (citation

omitted). We review questions of law de novo but defer to

the *1195 suppression court's factual findings when they are

supported by the record. See id.

A defendant's confession or inculpatory statement is not

admissible at trial unless it was made voluntarily. This

mandate is grounded in both the Fifth Amendment's

right against self-incrimination 10

and the Fourteenth

Amendment's Due Process Clause.

See Dickerson v.

United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147

L.Ed.2d 405 (2000). These substantial protections led the

United States Supreme Court to issue its seminal decision in

Miranda, which requires police officers to provide defendants

with a clear recitation of their constitutional right to remain

silent and their right to an attorney — and obtain a knowing

and intelligent waiver of those rights — before conducting

a custodial interrogation. See Miranda, 384 U.S. at 478-479,

86 S.Ct. 1602. The Miranda directive was necessary because

“the coercion inherent in custodial interrogation blurs the line

between voluntary and involuntary statements[.]” Dickerson,

530 U.S. at 435, 120 S.Ct. 2326. Miranda, however, is not

at issue here. The suppression court found Foster was not in

custody at the time of his interview — and thus not subject to

a custodial interrogation — and Foster has not challenged that

ruling. 12 Accordingly, our focus is on the voluntariness of

Foster's statement to Detective Sellers. “The determination of

whether a confession [or inculpatory statement] is voluntary

is a conclusion of law and, as such, is subject to plenary

review.” Commonwealth v. Templin, 568 Pa. 306, 795 A.2d

959, 961 (2002) (citation omitted).

The United States Supreme Court has recognized that “[a]ny

police interview of an individual suspected of a crime has

coercive aspects to it.” J.D.B. v. North Carolina, 564 U.S.

261, 268, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (citation

and quotation marks omitted). However, not “every element

which influences a criminal suspect to make incriminating

admissions” is prohibited under the Constitution. United

States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 52

L.Ed.2d 238 (1977). The touchstone is whether the statement

was voluntary under the totality of the circumstances. See

Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 882

(1998). In making this determination, courts do not consider

“whether the defendant *1196 would have confessed

without interrogation, but whether the interrogation was so

manipulative or coercive that it deprived the defendant of his

ability to make a free and unconstrained decision to confess.”

Id. This Court has compiled a list of relevant factors for

assessing the voluntariness of a statement or confession:

the duration and means of the

interrogation; the defendant's physical

and psychological state; the conditions

attendant to the detention; the attitude

exhibited by the police during the

interrogation; ... the accused's age and

level of education and experience; his

extent of previous experience with

the police; whether the accused was

advised of his constitutional rights;

whether he was injured, ill, drugged,

or intoxicated when he confessed;

whether he was deprived of food, sleep

or medical attention, and whether he

was abused or threatened with abuse.

Yandamuri, 159 A.3d at 525 (citation omitted). Significantly,

courts also may consider any “other factors that could drain

a person's ability to resist suggestion and coercion.” Id.

(citation omitted). The United States Supreme Court has

cautioned, however, that neither the presence nor absence

of any one factor is controlling — rather these factors

collectively shape the court's “careful scrutiny of all the

surrounding circumstances.” Schneckloth, 412 U.S. at 226, 93

S.Ct. 2041. The burden is on the Commonwealth to prove by

a preponderance of the evidence that a defendant's statement

was voluntarily made. See Nester, 709 A.2d at 882. With

this background in mind, we consider Foster's argument on

appeal.

Foster insists that his statement to Detective Sellers was

involuntary under the totality of the circumstances. In his

view, Detective Sellers’ misrepresentation — at the outset

of the interview — that he was not a suspect, changed

the dynamic of the interview and “shaped the police

manipulation.” Foster's Brief at 22.

Once Detective Sellers “misrepresented the nature of [their]

interaction[,]” Foster continues that his decision to give a

statement “was not a free and unconstrained” choice. Foster's

Brief at 15. He highlights that while Detective Sellers told him

that he was not a suspect “at that time[, but] could become

a suspect depending on what he said during the interview[,]”

Commonwealth v. Foster, 332 A.3d 1187 (2025)

the detective had already applied for two search warrants (and

obtained one) seeking Foster's DNA in relation to the sexual

assault that was the subject of the interview. Id. at 12, 16

(citation & emphases omitted).

Distinguishing the facts of his case from other decisions

involving police misrepresentations during an interview,

Foster maintains that Detective Sellers’ misrepresentation

is “fundamentally different” from those in which police lie

about having evidence that implicates the defendant in the

crime. Foster's Brief at 16. This misrepresentation — which

painted Foster as a non-suspect — “necessarily influenced his

decision to speak with police[.]” Id. at 18. Foster explains

he was “put in a Catch-22 situation” because any statement

he made would be incriminating and used against him —

whether he told the detective that he did not know Victim, but

it was later proven he had sex with her, or whether he admitted

he had sex with Victim. Id. at 17-18.

Foster insists his “status as a suspect shaped the

police manipulation” and Detective Sellers’ “intentional

misrepresentation ... went to the core dynamic” between

them. Foster's Brief at 22. Because he did not comprehend

the nature of his interaction with the detective, Foster

contends his “capacity for self-determination was critically

impaired[,]” and he was unable to make a “free and

unconstrained *1197 choice” whether to continue with the

interview. Id. at 22-23 (citation omitted).

Foster frames the totality of the circumstances surrounding

his interview as follows. He concedes he travelled to the

station voluntarily, believed he was free to leave, was

not restrained, and was allowed to use his cell phone

while waiting for the interview to commence. See Foster's

Brief at 23. Foster also acknowledges the interview lasted

approximately 20 minutes and concedes Detective Sellers

was “not coercive.” Id. Nonetheless, he highlights that:

Detective Sellers contacted him “multiple” times to “secure

his presence[;]” and “intentionally misrepresented ... that

he was not a suspect, despite the two warrants making out

probable cause to take [his] DNA.” Id. at 23-24 (emphasis

omitted). Foster concludes that under the totality of the

circumstances — and particularly the catch-all provision

referring to “all other conditions present which may serve to

drain one's powers of resistance to suggestion and undermine

[one's] self-determination”— it is evident his statement was

not voluntarily given. Id. at 24; see also Yandamuri, 159 A.3d

at 525.

Foster further declares that we should “create a ‘bright line

rule’ prohibiting such deceit in police interrogations.” Foster's

Brief at 44. He maintains that such a rule would “greatly

reduc[e] the risk of false confessions while leaving intact ...

accurate confessions[,]” as well as improve the integrity of

the legal system. Id. at 44-45.

The Commonwealth retorts that, while the suppression court

referenced the proper totality of the circumstances test,

it “actually used the disavowed ‘but for’ test, focusing

only on the incorrect statement that [Foster] was not a

suspect.” Commonwealth's Brief at 14. It emphasizes that

while the suppression court detected “nothing coercive in the

detective's manner, demeanor, or anything like that[,]” the

court relied solely on “the fact that [Foster] had been misled

about being a ‘suspect’ ” in granting the suppression motion.

Id. at 14-15 (citation omitted). Notably, the Commonwealth

suggests that this type of misrepresentation is not likely

to produce an involuntary statement — instead, it “puts

the [defendant] in the driver's seat, as they have absolute

control over what information they choose to disclose and

are not under pressure to address any specific issue regarding

their involvement, because no involvement has been implied

by authorities.” Id. at 21-22. Further, the Commonwealth

emphasizes the suppression court found Detective Sellers did

not act maliciously, but rather “misunderstood what he was

doing.” Id. at 22 (citation omitted).

Applying the totality of the circumstances test, the

Commonwealth summarizes: Detective Sellers was not

aggressive or demeaning during the interview, and acted

in “good faith, albeit under some confusion as to the role

of a search warrant.” Commonwealth's Brief at 27. Foster

appeared for the interview voluntarily, was not restrained in

any way, and was informed that if he made an incriminating

statement, “he would be advised of his constitutional rights.”

Id. The Commonwealth emphasizes Detective Sellers did not

lead or coerce Foster into making a statement — rather, Foster

“lied to avoid becoming a suspect.” Id. at 28. Moreover, it

maintains “[i]t is absolutely certain that [Foster] was not the

victim of coercive police tactics designed to produce a false

confession” because Foster never confessed, and DNA testing

proved he lied to police. Id. at 29.

Amicus PACDL filed a brief in support of Foster, focusing

on recent scientific studies which “demonstrate that the use

of deception in interrogation increases the risk of eliciting

false confessions[,]” and highlighting that “such deception

is at the core of a large class of wrongful convictions.”

Commonwealth v. Foster, 332 A.3d 1187 (2025)

*1198 PACDL's Amicus Brief at 5, 13. PACDL asserts that

eliminating police deception in interrogations will “not reduce

the number of confessions, but rather [will] reduce[ ] the

risk of false confessions[,]” and enhance “police legitimacy.”

Id. at 10, 12. Moreover, PACDL directs our attention to

several states which have enacted legislation to prevent the

use of deception in juvenile interrogations. See id. at 20-22.

Although recognizing that this Court has tolerated some

police deception in its prior decisions, PACDL encourages us

to end all deception in interrogations “to conform the law to

[the] realities that [can] no longer be ignored.” 13 Id. at 23.

Turning to the issue before us, there is no dispute that the

voluntariness of a defendant's statement is determined by

analyzing the totality of the circumstances. See Templin, 795

A.2d at 963-964. Moreover, some degree of police deception

during an interview is tolerated, so long as it does not “offend

basic societal notions of fairness” or “deprive[ ] the defendant

of his ability to make a free and unconstrained decision to

confess.” See Jones, 322 A.2d at 126; Nester, 709 A.2d at 882.

Foster's argument, instead, focuses on the type of deception

the detective employed.

In Foster's view, when a law enforcement officer assures an

interviewee that he is not a suspect, it reframes the entire

nature of the interaction. Foster maintains the interviewee

has no reason to be on guard or question what information

he provides to police. Moreover, he avers that without

comprehending the true purpose of the interview, the

interviewee is unable to make a “free and unconstrained

decision” whether to confess or make an inculpatory

statement. See Nester, 709 A.2d at 882.

However, although Foster purports to apply a totality of the

circumstances analysis, his argument sounds in the “but for”

test that we explicitly rejected in Nester. See Nester, 709

A.2d at 882 (“The question ... is not whether the defendant

would have confessed without the interrogation, but whether

the interrogation was so manipulative or coercive that it

deprived the defendant of his ability to make a free and

unconstrained decision to confess.”); Yandamuri, 159 A.3d

at 525 (same); see also Arizona v. Fulminante, 499 U.S.

279, 285-286, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (state

supreme court properly applied totality of circumstances test

to conclude confession was coerced and did not simply find

that “but for the promise [of safety] given by [jailhouse

informant, defendant] would not have confessed”). Foster

focuses primarily on Detective Sellers’ statement to him that

he was not a suspect, which, he maintains, “influenced his

decision to speak to police[.]” Foster's Brief at 18. While he

pays lip service to the non-coercive aspects of the interview,

Foster insists that his statement was involuntary because

Detective Sellers explicitly told him he was not a suspect,

when, in fact, the detective had applied for two warrants for

his DNA. See id. at 23-24.

Reflecting upon the voluntariness factors, 14 we observe that

even Foster concedes most of the factors weigh in favor

of determining his statement was voluntary — he came

to the police station willfully, *1199 was not restrained,

and was permitted to leave. In addition, Foster had access

to his cell phone throughout the duration of the interview,

Detective Sellers was “not coercive” in his questioning, and

the interview lasted only about 20 minutes. Foster's Brief at

23. Further, our review of the videotaped interview reveals

nothing unusual about Foster's “physical [or] psychological

state” that would have impacted his decision to speak with

Detective Sellers, nor does Foster direct us to any such

factors. Yandamuri, 159 A.3d at 525. Indeed, Foster was

37 years old at the time of the interview and appeared to

have no difficulty understanding Detective Sellers. While the

detective did not provide Foster with Miranda warnings, we

emphasize that none were required since Foster was not in

custody. See Foster, 301 A.3d at *7 n.3; Yandamuri, 159

A.3d at 519-521 (statements made while suspect was not “in

custody” were “gratuitous and not subject to suppression for

lack of Miranda warnings”).

As noted above, Foster's argument primarily rests upon three

factors: (1) Detective Sellers contacted him “multiple” times

“to secure his presence[;]” (2) Detective Sellers applied for

two search warrants for his DNA prior to the interview; and

(3) after attesting in the warrant applications that he had

probable cause to test Foster's DNA, Detective Sellers lied

to Foster and told him he was not a suspect. Foster's Brief

at 23. We conclude that these factors, neither individually

nor collectively, influenced the voluntariness of Foster's

statement.

Foster knew he was a witness in the sexual assault

investigation. Nonetheless, Foster initially agreed to meet

with Detective Sellers before failing to show up for the

interview. As Detective Sellers explained at the suppression

hearing, when Foster failed to call to tell the detective he

was not going to appear, the detective “decided to get a

search warrant for [Foster's] DNA and go out and look

for him.” N.T., 2/15/2022, at 8. The first search warrant

application was dated October 28, 2020, and expired two

Commonwealth v. Foster, 332 A.3d 1187 (2025)

days later on October 30th. Detective Sellers testified that

he went to “four of [Foster's] known addresses” to try to

locate him. Id. He left a message with one person, who

apparently got in contact with Foster. Foster then arranged to

come in for an interview on November 2nd. Thus, Foster's

characterization of Detective Sellers’ “multiple contacts ...

to secure his presence[,]” is misleading since the detective's

multiple attempts to contact Foster were necessitated by

Foster's evasive efforts themselves. Foster's Brief at 23. He

also focuses on the fact that Detective Sellers applied for two

search warrants for his DNA. However, the second warrant

was necessary only because the first warrant expired, and

the probable cause affidavits supporting both warrants are

identical. 15

This brings us to the crux of Foster's claim — Detective

Sellers’ misrepresentation that Foster was not a suspect in

the sexual assault investigation, when, in fact, the detective

had applied for a search warrant to obtain Foster's DNA.

To the extent Foster declares the misrepresentation was an

intentional manipulation designed to extract a confession,

the record supports the suppression court's explicit finding

to the contrary. 16 See Foster's Brief at 22. The *1200

Commonwealth argued to the suppression court that the

detective was not confident Foster's DNA would match the

sample recovered from Victim; rather it was necessary to rule

him in or out as a suspect. See N.T., 2/15/2022, at 13-16.

Although the court did not agree with that characterization, 17

it stated several times that it did not believe Detective Sellers

acted in bad faith or intended to mislead Foster. See id. at

22 (“I'm not suggesting the officer was acting in bad faith, I

don't believe that. I believe in his mind [he] still didn't know”

if Foster was the assailant); 30-31 (“I do not challenge the

detective's good faith. I believe he was acting in good faith

based on his understanding of what was happening.”); N.T.,

4/18/2022, at 9 (“I didn't think the detective was conniving

or maneuvering, but he was wrong. He was flat-out wrong.”);

14-15 (“I don't think Detective Sellers was trying to be a wise

guy, but he misunderstood what he was doing.”).

Thus, we are left with a detective's non-intentional

misrepresentation to an interviewee that he is not a suspect,

when, in fact, the detective obtained a warrant for a sample

of the interviewee's DNA to rule him in — or out — as a

suspect. 18 Foster and Amicus PACDL ask this Court to adopt

a blanket prohibition against any type of misrepresentation,

and, in particular, that which disguises the true nature of the

interview.

In other words, they assert Detective Sellers’

misrepresentation to Foster that he was not a suspect rendered

Foster's statement involuntary per se. While Foster professes

to apply the totality of the circumstances, he insists this one

factor — the misrepresentation — trumps all the others. We

disagree.

The totality of the circumstances test remains the proper test

for determining whether a defendant's statement was *1201

given voluntarily under the federal constitution. As the United

States Supreme Court has explained, this analysis requires “a

careful scrutiny of all the surrounding circumstances” — none

of its decisions applying this test “turned on the presence or

absence of a single controlling criterion[.]” Schneckloth, 412

U.S. at 226, 93 S.Ct. 2041.

Here, when Foster agreed to meet with Detective Sellers at

the police station, he was fully aware of the criminal subject

of the interview. See Video Interview at 12:44:30-12:44:39

(“Like I told you over the phone, like right now you're

not a suspect. ... I'm just trying to talk to everybody that

[Victim] encountered.”). As Foster concedes (and our review

of the video recording confirms), he was not restrained in

any way, and the detective was accommodating and nonconfrontational. During the interview, Foster placed himself

alone with Victim for, at least, a short period of time on

the night in question. Significantly, after learning Detective

Sellers intended to obtain DNA samples from certain males

with whom Victim had been in contact with that evening,

Foster voluntarily consented to provide his DNA. He did so

before Detective Sellers revealed a judge had approved a

search warrant to obtain his DNA sample.

Despite the numerous non-coercive factors surrounding his

statement to Detective Sellers, Foster insists the detective's

comment at the beginning of the interview that he was not

a suspect at that time tainted the entire conversation. We

do not agree. Foster understood the purpose of the interview,

and therefore, arguably understood — or should have —

at the outset of the interview that he was a suspect. We

should never disregard common sense in our application

of the law. Indeed, Foster does not claim that he was

unaware of Victim's allegation that she had been sexually

assaulted. Rather, he agreed to speak with Detective Sellers,

and, in fact, agreed to provide a sample of his DNA.

There is simply no support for Foster's assertion that his

“capacity for self-determination was critically impaired” 20

by Detective Sellers’ misrepresentation of his status as a

potential suspect. 21 Nor do we find the misrepresentation “so

reprehensible as to offend basic societal notions of fairness[.]”

Commonwealth v. Foster, 332 A.3d 1187 (2025)

Jones, 322 A.2d at 126 (citations omitted). Accordingly,

we agree with the determination of the Superior Court that,

under the totality of the circumstances, Foster's statement to

Detective Sellers was voluntarily given, and the suppression

court erred in granting Foster's motion to suppress.

The United States Supreme Court has not adopted a brightline rule regarding Fifth Amendment violations, and we, too,

decline to do so. Under the Fifth Amendment, inculpatory

statements made by an interviewee, not subject to a custodial

interrogation, are admissible so long as they were voluntarily

given. The test for voluntariness remains consideration of the

totality of the circumstances surrounding the interview. See

Fulminante, 499 U.S. at 285-286, 111 S.Ct. 1246; *1202

Yandamuri, 159 A.3d at 525. As applied to the present matter,

an officer's misrepresentation to an interviewee that he is not

a suspect, when, in fact, the officer believes the interviewee

may be responsible for a crime, does not so taint the interview

as to render it involuntary per se.

Accordingly, we affirm the order of the Superior Court.

Chief Justice Todd and Justices Donohue, Dougherty, Wecht,

Mundy and Brobson join the opinion.

Justice Wecht files a concurring opinion in which Justice

Donohue joins and Justice Dougherty joins, except for

footnote 4.

CONCURRING OPINION

JUSTICE WECHT

I agree that Keith Foster's statement was not made

involuntarily for purposes of the Fifth Amendment to the

United States Constitution. 1 The Supreme Court of the

United States has ruled that, while lies and deceptive

tactics are “relevant” factors within a “totality of the

circumstances” test, they are “insufficient” standing alone to

render an “otherwise voluntary confession inadmissible.” 2

Foster's proposed rule—that a statement is given involuntarily

whenever the suspect is “stripped of [an] understanding of

his status as a suspect” 3 —is therefore foreclosed by United

States Supreme Court precedent.

I write separately to underscore the narrowness of today's

decision. Foster did not preserve a distinct claim that his

statement to Detective Sellers was involuntary under Article

I, Section 9 of the Pennsylvania Constitution. 4 Our ruling

today does not address whether a circumstance in which a

law enforcement officer falsely tells a suspect that he is not

a suspect would render a subsequent confession involuntary

under the Pennsylvania Constitution. As Foster notes,

some state courts interpreting their own state constitutions

have held that police deception regarding whether the

interviewee is a suspect may—even standing alone—render

any subsequent confession involuntary. 5 I agree with the

Majority here that the question of whether the Pennsylvania

Constitution imposes similar limits “appears worthy of our

review in another case.” 6

*1203 I also emphasize that today's decision does not

purport to answer the question of whether law enforcement

officers ought to be permitted to deceive suspects. Although

Detective Sellers’ false assurances in this case did not render

Foster's statement involuntary under the Fifth Amendment,

allowing officers to deceive interviewees may well be unwise.

The Pennsylvania Association of Criminal Defense Lawyers

argues that the use of deception in interrogations “threatens

police legitimacy” and “is at the core of a significant number

of wrongful convictions.” 7 PACDL further contends that,

given the “growing scientific understanding” of the link

between police deception and false confessions, “it no longer

makes sense to excuse deception.” 8 PACDL notes that, in

recognition of this link between police deception and false

confessions, several states have enacted statutes prohibiting

police officers from lying to minors during interrogations. 9

Given these concerns, today's decision should not be

interpreted as endorsing the practice of deceiving or tricking

suspects during interrogations. Today, we apply the United

States Supreme Court's Fifth Amendment jurisprudence.

That the United States Constitution tolerates a practice

does not necessarily mean that the practice is wise. The

federal constitutional floor could always be raised. Our sister

branches would be well within their ambit of authority

to enact legislation prohibiting interrogation tactics (even

constitutionally permissible ones) that risk generation of

false confessions. Today's decision does not foreclose the

possibility of such reforms.

These additional points aside, I agree with today's Majority

that falsely telling a suspect that he is not a suspect, by itself,

does not render the suspect's resulting statements involuntary

under the Fifth Amendment. Thus, I join the Majority opinion.

Commonwealth v. Foster, 332 A.3d 1187 (2025)

All Citations

Justice Donohue joins this concurring opinion. Justice

Dougherty joins this concurring opinion except for footnote 4.

332 A.3d 1187

Footnotes

See Frazier v. Cupp, 394 U.S. 731, 737-738, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Commonwealth v. Jones,

457 Pa. 423, 322 A.2d 119, 126 (1974); Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1259 (1994).

As explained infra, we review this matter only under the federal constitution since Foster waived a separate

challenge to the voluntariness of his statement under Article I, Section 9 of the Pennsylvania Constitution.

As this case was appealed by the Commonwealth following the grant of Foster's suppression motion, we

glean the relevant facts from the preliminary hearing, the suppression hearing, and the parties’ motions.

Foster's interview with the detective was videotaped and is included in the certified record.

See 18 Pa.C.S. §§ 3121(a)(3), 3124.1.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In Roberts, police obtained a confession from a defendant after informing him, in good faith, that he could

not be prosecuted for the crime because the statute of limitations had expired. See Roberts, 969 A.2d

at 596. However, when it was later determined that the limitations period was tolled, the Commonwealth

filed charges against him and the defendant moved to suppress his statement. See id. at 597. The trial

court suppressed the statement and the Commonwealth appealed to the Superior Court, which reversed the

suppression order and remanded the matter for trial. The Superior Court concluded that, under the totality of

the circumstances — which included a non-coercive interview in the defendant's home, and the officers’ “good

faith reliance on information that later proved to be incorrect” — the defendant's confession was voluntary.

Id. at 599-600. Ultimately, the panel determined the circumstances were not “so inherently coercive as to

deprive [the defendant] of his free will” and the officers’ mistaken statement “was more likely to cause a

trustworthy confession rather than an untrustworthy confession[.]” Id. at 600-601 (emphases omitted). The

decision was not appealed to this Court.

In a footnote, the Court acknowledged that Foster also sought suppression of his statement on the basis that

he was subject to a custodial interrogation and was not advised of his Miranda warnings. See Foster, 301

A.3d at *7 n.3. The panel determined that Foster did not develop that argument in his appellate brief, and,

even if he had, it would conclude he was not subject to a custodial interrogation. See id.

While this claim arises from Foster's federal constitutional protection against self-incrimination, Foster

presents a second issue in his brief, arguing that, if we conclude he is not entitled to relief under the federal

constitution, we should find Article I, Section 9 of the Pennsylvania Constitution provides “greater protection

than its federal counterpart” and “proscribe[s] police from lying about the nature of [their] interaction” with a

potential suspect. Foster's Brief at 25. He and Amicus Pennsylvania Association of Criminal Defense Lawyers

(PACDL) present a compelling argument that we should consider providing greater protection against police

manipulation during interrogations under the Pennsylvania Constitution.

Commonwealth v. Foster, 332 A.3d 1187 (2025)

Recognizing that to date, this Court has not interpreted Article I, Section 9 as providing “any greater protection

than” the Fifth Amendment with regard to a defendant's inculpatory statement, Foster engages in an Edmunds

analysis. See Foster's Brief at 25 n.4; Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). He

argues: (1) this Court has previously held that, despite similar language, “Section 9 can provide greater

protection than the Fifth Amendment[;]” (2) other states have determined that police misrepresentations about

the nature of an interview may lead to an involuntary statement; and (3) the “risk of false confessions, and

relatedly, wrongful convictions will necessarily decline” if we limit police manipulation in interviews. Foster's

Brief at 32-43. Moreover, Amicus PACDL cites several scholarly articles which advocate that “the use of

deception in interrogation increases the risk of eliciting false confessions.” PACDL's Brief at 5, 8, 10-12,

14-15 (citing Richard A. Leo, Interrogation and False Confessions in Rape Cases (2024) (forthcoming in

Ann Burgess, Ed., Practical Aspects of Rape Investigation: A Multidisciplinary Approach (6th ed. 2024)));

Margareth Etienne & Richard McAdams, Police Deception in Interrogation as a Problem of Procedural

Legitimacy, 54 Tex. Tech. L. Rev. 21 (2021); Julia Simon-Kerr, Public Trust and Police Deception, 11 Ne.

U.L. Rev. 625 (2019); Miriam S. Gohara, A Lie for a Lie: False Confessions and the Case for Reconsidering

the Legality of Deceptive Interrogation Techniques, 33 Fordham Urb. L.J. 791, 835 (2006) (recommending

that states pass laws prohibiting police from, inter alia, “outrightly misleading a suspect about the purpose of

the interrogation; for example, indicating that he is a witness instead of a suspect.”).

The Commonwealth, however, insists that Foster has waived this claim, and we agree. See Commonwealth's

Brief at 30-31. Although Foster cited Article I, Section 9 in his suppression motion, and repeated the citation

in his appellee brief before the Superior Court, he did not develop any argument (before either lower court)

that the Pennsylvania Constitution provides greater protection against self-incrimination than its federal

counterpart. And, significantly, he did not raise a departure claim in his petition for allowance of appeal.

Thus, while this issue appears worthy of our review in another case, Foster has waived the claim here. See

Commonwealth v. Bishop, 655 Pa. 270, 217 A.3d 833, 841-842 (2019) (concluding that, while appellant raised

departure claim under Pennsylvania Constitution in petition for allowance of appeal, appellant nevertheless

waived claim when appellant did not argue issue before suppression court nor develop any reasoning before

appellate court).

U.S. Const. amend. V (“No person shall ... be compelled in any criminal case to be a witness against

himself[.]”). The Pennsylvania Constitution's corollary, enshrined in Article I, Section 9, similarly provides: “In

all criminal prosecutions the accused ... cannot be compelled to give evidence against himself[.]” Pa. Const.

art. I, § 9.

U.S. Const. amend. XIV (“No state shall ... deprive any person of life, liberty, or property, without due process

of law[.]”).

Nor do we find any basis for a challenge. “An individual is in custody if he is physically denied his freedom

of action in any significant way or is placed in a situation in which he reasonably believes that his freedom

of action or movement is restricted by the interrogation.” Commonwealth v. Cooley, 632 Pa. 119, 118 A.3d

370, 376 (2015) (citation and quotation marks omitted). In making this objective determination, we focus on

“the totality of the circumstances with due consideration given to the reasonable impression conveyed to

the individual being questioned.” Id. (citation omitted). Here, the evidence presented during the suppression

hearing, including the videotaped interview, establishes that Foster traveled to the police station voluntarily,

and was led into an unlocked interview room where he was permitted to keep his phone. He was never

restrained nor informed he was not free to leave. In fact, when Detective Sellers left the room to take a phone

call, the door was open. Foster could have easily left the room or even the premises. Therefore, under the

totality of the circumstances, we would agree Foster was not in custody at the time of the interview.

PACDL refers to our decision in Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766 (2014). In that case,

we reconsidered our prior decisions excluding expert testimony concerning eyewitness identification “in light

Commonwealth v. Foster, 332 A.3d 1187 (2025)

of the magnitude of scientific understanding of eyewitness identification and marked developments in case

law during the last 30 years[.]” Id. at 791. Abandoning our “absolute prohibition of such expert testimony[,]”

we, instead, adopted a more flexible approach to give trial courts the authority to admit such testimony if it is

scientifically based and relevant to the identification at issue. Id. at 791-792.

See Yandamuri, 159 A.3d at 525.

It is not uncommon for police to obtain a second search warrant after a first warrant has expired. Nor is it

indicative of coercive behavior on the part of the police.

This is not to say that the intent of the detective is germane to the question of voluntariness. In Moran v.

Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the United States Supreme Court considered

whether a defendant's confession, made after waiving his Miranda rights, was nevertheless involuntary

because police failed to inform him that his sister retained an attorney, who called to speak with him, but was

told by police that he would not be questioned until the next day. See id. at 415, 106 S.Ct. 1135. Recognizing

the conduct of the police was “highly inappropriate,” the Court concluded, however, that their “deliberate

deception of an attorney could not possibly affect [the defendant's] decision to waive his Miranda rights unless

he were at least aware of the incident.” Id. at 423, 106 S.Ct. 1135. The Supreme Court opined: “[W]hether

intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and

voluntariness of [a suspect's] election to abandon his rights.” Id.

Specifically, the suppression court remarked: “You do not use search warrants to rule out people. You

use search warrants on the representation that there is a probability that you are going to acquire useable

evidence in a criminal prosecution.” N,T., 2/15/2022, at 16-17.

Detective Sellers’ misunderstanding regarding Foster's status as a suspect is understandable considering the

meager facts he provided in the warrant's probable cause affidavit. Detective Sellers averred: (1) unknown

male DNA was located “in and on” Victim; (2) after interviewing Victim's friends and bar employees, he

“positively identified a restaurant employee[, Foster,] that was alone with [Victim] for a period of time after she

left the bar and before being found by other bar employees[;]” and (3) “because a male known to be alone

with [Victim] that night has been identified, [there is a] probability that the male's DNA profile is present on

swabbings of” Victim. Affidavit of Probable Cause, 10/28/2020, at 1 (unpaginated). Thus, the search warrant

at issue was granted based (solely) on the fact that Foster was alone with Victim at some point during the

evening when she was assaulted. Whether these facts are sufficient to support probable cause for a search

warrant is not before us. Moreover, Foster ultimately consented to the buccal swab.

While the studies cited by Amicus PACDL in its brief are noteworthy, they might be more persuasive here

had Foster actually confessed to the crime — justifying their concern regarding false confessions — rather

than denying that he had sexual intercourse with Victim.

Foster's Brief at 15-16.

Compare Spano v. New York, 360 U.S. 315, 323-324, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) (holding

defendant's confession was involuntary under the totality of the circumstances, which included the fact that

police had obtained grand jury indictment before interrogation; “[t]he police were not therefore merely trying

to solve a crime, or even to absolve a suspect[, but] rather concerned primarily with securing a statement

from defendant on which they could convict him”).

U.S. CONST. amend. V (“No person shall ... be compelled in any criminal case to be a witness against

himself[.]”).

Commonwealth v. Foster, 332 A.3d 1187 (2025)

Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

Brief for Foster at 21.

See PA. CONST. art. I, § 9 (“In all criminal prosecutions the accused ... cannot be compelled to give

evidence against himself[.]”). As the Majority details, Foster waived his state constitutional claim because

he did not comply with Commonwealth v. Bishop, 655 Pa. 270, 217 A.3d 833 (2019), which held that

litigants in this situation must “assert in the trial court that the state constitutional provision at issue should

be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state

provision differently from the federal provision.” Id. at 840 (quoting the New Mexico Supreme Court's decision

in State v. Gomez, 122 N.M. 777, 932 P.2d 1 (1997), for reasons that still elude me). As I explained in Bishop,

this issue-preservation regime “makes an Edmunds analysis a de facto prerequisite for preserving departure

claims,” even though our Court has held that an Edmunds analysis is not required. Id. at 850 (Wecht, J.,

dissenting). I continue to believe that the Bishop rule serves no legitimate purpose.

Brief for Foster at 39 n.18 (citing decisions from Colorado, Hawaii, Indiana, Kansas, Montana, and Oregon).

Majority Opinion at 1194 n.9.

Amicus Curiae Brief for PACDL at 12, 3.

Id. at 18.

Id. at 20-22; see, e.g., CAL. WELF. & INST. CODE § 625.7(a) (“During a custodial interrogation of a person

17 years of age or younger relating to the commission of a misdemeanor or felony, a law enforcement officer

shall not employ threats, physical harm, deception, or psychologically manipulative interrogation tactics.”);

DEL. CODE tit. 11 § 2022(b)(1) (“[A] statement of a person, who at the time of the interrogation was under 18

years of age, is inadmissible in any criminal or delinquency court proceeding if it was made during a custodial

interrogation in which deceptive tactics were used.”); OR. REV. STAT. § 133.403(1) (“A statement made by a

person during a custodial interview conducted by a peace officer is presumed to be involuntary if the person

is under 18 years of age and ... the court determines that the peace officer intentionally used information

known by the officer to be false to elicit the statement.”).

End of Document

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