Petition for Writ of Certiorari — Fowlin v. Pennsylvania

OCT 20 1993

he FF HV

No.

—

In the Supreme Court of the

United States

October Term, 1993

RICHARD FOWLIN,

Petitioner

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

Petition for Writ of Certiorari to the Supreme Court

of the Commonwealth of Pennsylvania

GARY NEIL ASTEAK

Attorney for Petitioner

726 Walnut Street

Easton, PA 18042

(215) 258-2901

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—{717) 888-2244

Statement of Question Presented for Review

STATEMENT OF QUESTION PRESENTED FOR

REVIEW

Whether it is constitutionally impermissible to seek the

consent of a suspect in police custody to a warrantless search

of his premises after he has requested an attorney in the course

of interrogation and before he has been permitted to consult

with counsel?

TABLE OF CONTENTS

Statement of Question Presented for Review... . . .

Tete oh Ceateelt 24 6h 6 a Se 8

Table fClniet 2.000 FU POPS Aa ee

Petition for Writ of Certiorari Directed to the Supreme

Court of Ponneyivania ... 6. ce ee

Reference to Opinions Delivered in the Courts Below .

Statement of Jurisdiction ................

Constitutional Provisions Involved ...........

Statement of the Case .. 0. 0c cc tee

Reasons for Allowance ofthe Writ ...........

Camis 6 co de Oe ee eee

APPENDIX:

A. Opinion of the Court of Common Pleas of North-

ampton County Pennsylvania entered on Janu-

aty 16, FUE. io as Oa ee eee 8

B. Opinion of the Court of Common Pleas of North-

ampton County Pennsylvania entered on March

BS, OE ss 6 cs a ee ee

C. Opinion of the Superior Court of the Common-

wealth of Pennsylvania entered on July 28, 1992

D. Order of the Supreme Court of the Common-

wealth of Pennsylvania “Petition Denied per cu-

riam July 22,1993”... .........005.

Certificate of Service. ..........ccccccees

ow fk WON

la

5a

TABLE OF CITATIONS

CASES:

Arizona v. Roberson, 486 U.S. 675, 100 L.Ed. 2d 704,

BOS S.Ct. BOSS (CIGSS). wt tt tc ct 9,10

Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378,

101 S.Ct. 1880 (1981). ........... 8,9, 10, 11

Michigan v. Harvey, 494 U.S. 344, 108 L.Ed. 2d 293,

110 S.Ct. LETS CIGSO). . wt tt cc ce 9

Minnick v. Mississippi, 498 U.S. 146, 112 L.Ed. 2d 489,

ig oo 0 Ea a 9,10

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86

S.Ct. 1602, 10 ALR 3d 974 (1966) . . . 5,6,7,8,9,10

People v. Johnson, 48 N.Y. 2d 565, 423 M.Y.S. 2d 905,

re ll

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct.

2041, 36 L.Ed. 2d 854 (1973) ........... ll

United States v. D’Antoni, 856 F.2d 975 (7 Cir. 1988) . 11

United States v. Rojas, 655 F. Supp. 1156 (E.D. N.Y.

Ne EN ote e ele ee ss ll

United States v. Taft, 769 F. Supp. 1295 (D. Ct. 1991). 10

United States v. Yan, 704 F. Supp. 1207 (S.D.N.Y.

NET ER e a so oe o's Gb ss Oke ba ke 1]

STATUTES:

United States Constitution:

rue I ES. www tt twee es 3

Fourth Amendment ............. 4,6, 7,11, 12

Fifth Amendment ........... 4,5, 6, 7, 10, 11, 12

Petition

PETITION

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

RICHARD FOWLIN,

Petitioner

Vv

COMMONWEALTH OF PENNSYLVANIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

To the Honorable, the Chief Justice

and the Associate Justices of the Supreme Court

of the United States:

Richard Fowlin, the Petitioner herein, respectfully prays

that a Writ of Certiorari issue to review the Judgment of the

Supreme Court of the Commonwealth of Pennsylvania en-

tered in the above-entitled case on July 22, 1993.

2

Reference to Opinions Delivered Below

REFERENCE TO OPINIONS DELIVERED IN THE

COURTS BELOW

The July 22, 1993, Order of the Supreme Court of the

Commonwealth of Pennsylvania denying Petitioner's Petition

For Allowance Of Appeal at No. 344 M.D. Allocatur 1992 is

unpublished and reprinted in Appendix D to this Petition at

Page No. 16a. The prior Opinion of the Superior Court of the

Commonwealth of Pennsylvania entered July 28, 1992, is

unpublished and reprinted in Appendix C to this Petition at

Page No. 10a. The prior Opinions of the Court of Common

Pleas of Northampton County, Pennsylvania, entered on Janu-

ary 13, 1989, and on March 12, 1991, are unpublished and

reprinted in Appendices A and B to this Petition at Page No.

la and Page No. 5a respectively.

aerate eens

3

Statement of Jurisdiction

STATEMENT OF JURISDICTION

The Order of the Supreme Court of the Commonwealth

of Pennsylvania entered on July 22, 1993. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. Section 1257(a).

4

Constitutional Provisions Involved

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourth Amendment to the Consti-

tution of the United States, which provides as follows:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no war-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.”

This case also involves the Fifth Amendment to the

Constitution of the United States, which provides as follows:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service and time of War or public dangers; nor shall any

person be subject to the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.”

5

Statement of the Case

STATEMENT OF THE CASE

This case involves the effect an in-custody suspect's invo-

cation of his right to counsel has upon a subsequent request

by police to conduct a premises search. When a suspect is

arrested pursuant to a duly executed Arrest Warrant and

invokes his Fifth Amendment right to counsel, may the police

subsequently inquire whether he would agree to consent to a

search of his home, or does that request, a form of interroga-

tion, violate the “cone of silence” created by the invocation of

a right to counsel?

It is submitted that the Courts of the Commonwealth of

Pennsylvania have decided this question of substance not in

accord with applicable guiding decisions of the Supreme Court

of the United States.

On August 4, 1988, an Agent for the Pennsylvania Bureau

of Drug Control obtained a valid Warrant for Petitioner's

arrest. When applying for the Arrest Warrant the Agent was

unable to secure a Search Warrant for Petitioner's residence,

having insufficient probable cause necessary to secure a valid

Search Warrant. The following morning, the Agent, accompa-

nied by eight other law enforcement officers, executed the

Arrest Warrant. After arriving at Petitioner's residence shortly

before 8:00 A.M., the Agent arrested Petitioner, handcuffed

him, and read him proper Miranda warnings. The Agent then

gave Petitioner a form to sign acknowledging that he was aware

of these rights. Petitioner refused to sign the form and stated

that he would not speak to the police without an attorney

present. Once in custody, Petitioner was placed on a sofa in his

living room. The Agent read him another form entitled “Con-

sent to Search and Seize.” The Agent then asked Petitioner to

6

Statement of the Case

read the Consent Form himself; he read it aloud. The Agent

then asked if he would sign the Form. Petitioner immediately

did so stating that the officers were welcome to search because

there were no drugs in his house. The officers then conducted

a thorough search of Petitioner's dwelling, seizing numerous

plastic bags, a set of pocket scales, a personal letter, and cash.

The applicability of the Fourth and Fifth Amendments

to the Constitution of the United States was raised by Peti-

tioner in the first instance by way of a pre-trial motion to

suppress evidence. The Court of Common Pleas of Northamp-

ton County denied the motion to suppress evidence (see

Appendix A). At trial the above-referenced items were intro-

duced into evidence over Petitioner's objections and thereafter

Petitioner was convicted by a Jury of Possession of a Controlled

Substance (Cocaine), Possession With Intent To Deliver a

Controlled Substance (Cocaine), and Delivery of a Controlled

Substance (Cocaine). Post-Trial Motions raising the issue

herein preserved were similarly denied by the Court of Com-

mon Pleas of Northampton County (see Appendix B). On

Appeal to the Superior Court of the Commonwealth of Penn-

sylvania the issue herein preserved was raised and denied (see

Appendix C). A Petition for Allocatur to the Supreme Court

of the Commonwealth of Pennsylvania was also denied (see

Appendix D).

The Superior Court of the Commonwealth of Pennsylva-

nia in its learned Opinion contends that Petitioner confuses

the protections afforded by the various Amendments to the

United States Constitution. The Court correctly recited that

the Fifth Amendment protects the right to be free from

self-incrimination, while the Fourth Amendment guarantees

the right to be free from unreasonable searches and seizures.

Miranda protections stem from the Fifth Amendment and

7

Statement of the Case

require that an accused in custody be informed of his right to

refuse to speak to police without an attorney present. Peti-

tioner does not confuse the protections afforded by the Fourth

and Fifth Amendments but rather asserts that the respective

constitutional protections must be read together in a symbiotic

fashion and are not mutually exclusive. Petitioner contends

that a consent to search secured as a result of a Miranda

violation violates the fundamental tenants of the Constitution

of the United States.

8

Reasons for Allowance of the Writ

REASONS FOR ALLOWANCE OF THE WRIT

Whether it is constitutionally impermissible to seek the

consent of a suspect in police custody to a warrantless search

of his premises after he has requested an attorney in the course

of interrogation and before he has been permitted to consult

with counsel is an issue not yet directly addressed by the

Supreme Court of the United States. The Appellate Courts of

the Commonwealth of Pennsylvania have decided this impor-

tant question of Federal law in an area in which decisions by

both the State Courts and Federal Courts are in conflict.

In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694,

86 S.Ct. 1602, 10 ALR 3d 974 (1966) the Supreme Court of

the United States held that once an individual in custody

invokes his right to counsel, interrogation “must cease until an

attomey is present”; at that point, “the individual must have

an opportunity to confer with the attorney and to have him

present during any subsequent questioning.”

In Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378,

101 S.Ct. 1880 (1981) the Supreme Court gave force to these

admonitions finding it “inconsistent with Miranda and its

progeny for the authorities, at their instance, to reinterrogate

an accused in custody if he has clearly asserted his right to

counsel.” When an accused has invoked his right to have

counsel present during custodial interrogation, a valid waiver

of that right cannot be established by showing only that he

responded to further police initiated custodial interrogation

even if he has been advised of his rights. An accused who

requests an attorney, “having expressed his desire to deal with

the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

9

Reasons for Allowance of the Writ

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.”

Edwards, supra.

Edwards is “designed to prevent police from badgering a

Defendant into waiving his previously asserted Miranda

rights.” Michigan v. Harvey, 494 U.S. 344, 108 L.Ed. 2d 293,

110 S.Ct. 1176 (1990). This rule ensures that any statement

made in subsequent interrogation is not the result of coercive

pressures. Edwards conserves judicial resources which would

otherwise be expended in making difficult determinations of

voluntariness, and implements the protections of Miranda in

practical and straightforward terms. Minnick v. Mississippi,

498 U.S. 146, 112 L.Ed. 2d 489, 111 S.Ct. 486 (1990).

The merit of the Edwards Decision lies in the clarity of

its command and the certainty of its application. The Supreme

Court has held that the Edwards rule provides “clear and

unequivocal” guidelines to the law enforcement profession.

Arizona v. Roberson, 486 U.S. 675, 100 L.Ed. 2d 704, 108 S.Ct.

2093 (1988).

The United States Supreme Court in Minnick, supra,

stated clearly as follows:

“Whatever the ambiguities of our earlier cases on

this point, we now hold that when counsel is requested,

interrogation must cease, and officials may not reinitiate

interrogation without counsel present, whether or not the

accused has consulted with his attorney.” (112 L.Ed. 2d

489, 498)

Both waiver of rights and admission of guilt are consistent

with the affirmation of individual responsibility that is a prin-

ciple of the criminal justice system. It does not detract from

this principle, however, to insist that neither admissions nor

waivers are effective unless there are both particular and

10

Reasons for Allowance of the Writ

systematic assurances that the coercive pressures of custody

were not the inducing cause. The Edwards rule sets forth a

specific standard to fulfill these purposes. Minnick, supra.

It is true that Miranda and Edwards are concerned with

the admissibility of a suspect’s statements, rather than the

validity of a consent to search. It is also true that a consent to

search is not a statement of the Defendant. Nevertheless, it is

well settled that when a person requests counsel during cus-

todial interrogation, all questioning must cease until counsel

has been made available unless the person in custody initiates

further conversation with the police. The “bright line rule”:

“[S]erves the purpose of providing ‘clear and un-

equivocal’ guidelines to the law enforcement profession.

Surely there is nothing ambiguous about the requirement

that after a person in custody has expressed his desire to

deal with the police only through counsel, he ‘is not

subject to further interrogation by the authorities until

counsel has been made available to him, unless the ac-

cused himself initiates further communication, ex-

changes, or conversations with the police.’ ”

Arizona v. Roberson, 486 U.S. 675, 682, 108 S.Ct. 2093, 2098,

100 L.Ed. 2d 704 (1988) (quoting Edwards, 451 U.S. at

484-85, 101 S.Ct. at 1884-85).

Edwards requires that the police make counsel available

to a Defendant who so requests; simply giving a Defendant

the opportunity to contact counsel does not satisfy Edwards.

All of the evidence obtained from the consent search gained

through the exploitation of a Fifth Amendment violation

should be suppressed. United States v. Taft, 769 F. Supp. 1295

(D.Ct. 1991). The District Court in Taft found under remark-

ably similar circumstances that the consent to search after a

suspect in police custody invoked his right against self-incrimi-

11

Reasons for Allowance of the Writ

nation without the presence of counsel was not voluntary

under the Fourth Amendment. The Court found that the

rationale of Edwards supports the conclusion that failure to

honor Defendant's request for counsel in and of itself creates

a coercive situation. Exploitation of a Fifth Amendment viola-

tion undermines the Fourth Amendment protections. See also

United States v. Yan, 704 F. Supp. 1207, 1211-12 (S.D.N.Y.

1988) (rationale of Edwards broad enough to include “inter-

rogation” about whether the accused will consent to a warrant-

less search); United States v. Rojas, 655 F. Supp. 1156, 1168

(E.D.N.Y. 1987) (evidence found as a result of oral consent to

search suppressed because consent was the product of ques-

tioning in violation of Defendant's exercising his rights under

Miranda to remain silent); United States v. D’Antoni, 856 F.2d

975 (7th Cir. 1988) (obtaining Defendant's consent to search

after he invoked right to counsel arguably violated Edwards

“bright line rule”); People v. Johnson, 48 N.Y. 2d 565, 423

M.Y.S. 2d 905, 399 N.E. 2d 936 (1979) (consent to search held

legally ineffective, even though found to be voluntarily given,

because it was unconstitutionally obtained after request for

attorney was not granted).

The State Courts have focused solely on evaluating vol-

untariness of the consent to search using the “totality of the

circumstances” test as set forth in Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973). What has

been referred to as a “bright line rule” as set forth in Edwards

is the very reason for avoiding the analysis undertaken by the

State Court. One may be arrested at 7:00 A.M., handcuffed

wearing only underwear with a house full of policemen and

your children running around screaming and still be capable

of giving knowing, voluntary, conscious, and intelligent con-

sent; however, when the police admit that you “refused to

speak without an attorney,” it cannot be disputed that you were

12

Reasons for Allowance of the Writ

reaching out for help, assistance of counsel, and that no further

interrogation, initiatives, requests for waiver, or demands be

placed upon you under those circumstances. It is a difficult

concept to accept which would permit an individual protec-

tions of Fifth Amendment rights when request for counsel is

made but strip him of Fourth Amendment protection.

Petitioner respectfully submits that whether it be a waiver

or a confession, the use of the results of police interrogation,

i.e., request to consent to search, subsequent to invocation of

one’s right to counsel and against self-incrimination is inimical

to the fundamental standards as guaranteed by the Fifth

Amendment of the United States Constitution.

CONCLUSION

WHEREFORE, Petitioner respectfully prays that a Writ

of Certiorari be granted.

Respectfully submitted,

GARY NEIL ASTEAK

Attorney for Petitioner

726 Walnut Street

Easton, Pennsylvania 18042

215-258-2901

eT I RE ee Ce

la

Appendix A

APPENDIXA

IN THE COURT OF COMMON PLEAS OF

NORTHAMPTON COUNTY, PENNSYLVANIA

CRIMINAL

No. 1867 - 1988

COMMONWEALTH OF PENNSYLVANIA

vs.

RICHARD FOWLIN, Defendant

OPINION OF THE COURT

This matter is presently before the court on defendant's

motion to suppress physical evidence seized by the Common-

wealth. Defendant's motion under Pa. R.Crim.P. 323 is predi-

cated on the claim that his consent to search was not given

voluntarily and therefore obtained in violation of the defen-

dant's rights as guaranteed by the fourth amendment to the

Constitution, and Article I, Section 8 of this Commonwealth's

constitution. A hearing was held December 14, 1988.

After consideration of the evidence before us, we make

the following:

FINDINGS OF FACT

1. On August 4, 1988, Agent Susan B. Koneski obtained

a warrant for the arrest of Richard B. Fowlin.

2. At that time Agent Koneski did not have sufficient

probable cause for a search warrant.

3. The arrest warrant was executed the following morning

at approximately 7:00 a.m. on Mr. Fowlin at his residence.

4. Accompanying Agent Koneski were eight law enforce-

ment officers and a drug-sniffing dog.

2a

Appendix A

5. Upon answering the door, Mr. Fowlin was informed by

Agent Koneski that she had a warrant for his arrest and she

formally placed him under arrest.

6. Fowlin was handcuffed and led back into his living

room where he was read his Miranda warnings. He refused to

sign an acknowledgement of these rights.

7. The other officers dispersed to different areas of the

house in order to secure it.

8. At the request of Agent Koneski, defendant then signed

a consent-to-search form.

9. Incriminating evidence was found during the sub-

sequent search of the premises.

DISCUSSION

First we note that “[i]t is incontrovertible that, here, in

Pennsylvania, the Commonwealth and not defendant, has the

initial burden of going forward with the evidence and of

establishing that the challenged evidence was not obtained in

violation of defendant's rights.” Commonwealth v. Ryan, 296

Pa. Super. 222, 228, 442 A.2d 739, 742 (1982); Pa. R.Crim.P.

323(h). The Commonwealth's burden is by a preponderance

of the evidence in a suppression hearing. Commonwealth v.

Bonasorte, 337 Pa. Super. 332, 486 A.2d 1361 (1984) (citations

omitted).

In the instant case the Commonwealth established

through the testimony of Agent Koneski that a valid consent-

to-search form was signed by the defendant. Even though

defendant testified that he was threatened physically and not

given the opportunity to read the consent-to-search form

before signing it, this testimony directly contradicts Agent

Koneski’s testimony. When faced with conflicting testimony,

the suppression court, as factfinder, may pass on credibility.

3a

Appendix A

Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986).

Credibility is a matter within the province of the suppression

court. Commonwealth v. Rodriguez, 316 Pa. Super. 203, 462

A.2d 1310 (1983). We find the agent’s testimony believable,

and accordingly accept her recollection of the events as cred-

ible. Agent Koneski’s testimony amply supports our conclusion

that defendant freely, specifically, and voluntarily consented

to a search of his residence by signing the consent-to-search

form. See Commonwealth v. Stapinski, 449 Pa. 283, 431 A.2d

260 (1981).

For these reasons, we make the following:

CONCLUSIONS OF LAW

That the consent-to-search form signed by the defendant

was voluntary.

2. That the defendant's rights were not disregarded; his

consent validated the Commonwealth’s warrantless search of

his residence.

3. That the evidence seized by the Commonwealth on

August 5, 1988, from defendant’s residence is admissible at

trial.

4a

Appendix A

IN THE COURT OF COMMON PLEAS OF

NORTHAMPTON COUNTY, PENNSYLVANIA

CRIMINAL

No. 1867 - 1988

COMMONWEALTH OF PENNSYLVANIA

VS.

RICHARD FOWLIN, Defendant

ORDER OF COURT

AND NOW, This 13 day of January, 1989, after a hearing,

it is ORDERED and DECREED that the pretrial motion to

suppress physical evidence seized August 5, 1988, from defen-

dant’s residence, is denied.

BY THE COURT,

//MICHAEL V. FRANCIOSA, JUDCE

5a

Appendix B

APPENDIX B

IN THE COURT OF COMMON PLEAS OF

NORTHAMPTON COUNTY, PENNSYLVANIA

CRIMINAL

No. 1867-1988

COMMONWEALTH OF PENNSYLVANIA

vs

RICHARD BANKROFT FOWLIN, Defendant

OPINION OF THE COURT

Before the court are the post-trial motions of defendant,

Richard Bankroft Fowlin. Following a trial on January 16, 17,

1990, a jury found Fowlin guilty of delivery of cocaine, posses-

sion with intent to deliver cocaine, and possession of 5.8 grarns

of cocaine. In his motion for new trial, defendant contends this

court erred in denying his pretrial motion to suppress physical

evidence (Opinion and Order, January 13, 1989, Franciosa, J.).

Defendant argues that he was denied his constitutional

right to be free from unreasonable searches. Defendant con-

tends that as a result of the conduct of the police officers who

arrested him and searched his residence on August 5, 1988,

and the totality of the circumstances of the search, defendant

never gave informed consent to search his home. In the

alternative, defendant argues that he was forced to sign the

written consent to search under duress, because the police

officers never informed him of the document's contents.

Therefore, defendant alleges he did not give his informed

consent to the search.

6a

Appendix B

In reviewing the denial of a defendant’s motion to sup-

press evidence, the reviewing court must

determine whether the factual findings of the [suppres-

sion] court are supported by the record. In making this

determination, we consider only the evidence of the

prosecution's witnesses and so much of the evidence for

the defense, as, fairly read in the context of the record as

a whole, remains uncontradicted. If, when so viewed, the

evidence supports the factual findings, we are bound by

such findings and may only reverse if the legal conclu-

sions drawn therefrom are in error. Commonwealth v.

Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Lewis, 394 Pa.Super. 403, 576 A.2d 63

(1990). It is for the suppression court as trier of fact to

determine the credibility of witnesses. Commonwealth v.

Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984).

In evaluating voluntariness of the consent to search, the

reviewing court examines the totality of the circumstances

surrounding the consent. Commonwealth v. Hubbard, 472 Pa.

259, 372 A.2d 687 (1977). The United States Supreme Court,

in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973), explained that the totality of the circum-

stances is judged by an examination of all the surrounding

circumstances in the case. This includes the environment

surrounding the confrontation between the consenter and the

licemen, the words and conduct of the consenter, the nature

of custody, whether the consenter was aware of his rights, and

the character, experience, training and emotional state of the

consenter. Further, the Supreme Court emphasized that the

prosecution’s burden could not be met only by showing acqui-

escence to a claim of lawful authority. Id.

Ta

Appendix B

In reviewing the facts of this case within these standards,

we find that this court committed no error in denying defen-

dant’s motion to suppress. The facts as found by the suppres-

sion court are fully supported by the record.

The Findings of Fact of the January 13, 1989 opinion are

essentially as follows. On August 4, 1988, Agent Susan B.

Koneski obtained a warrant for the arrest of Richard B. Fowlin.

However, at this time, Koneski did not have sufficient prob-

able cause to obtain a search warrant for Fowlin’s residence.

On August 5, 1988, at approximately 7:00 a.m., the arrest

warrant was executed, and Mr. Fowlin was arrested at his

residence. Eight law enforcement officers and a drug-sniffing

dog accompanied Agent Koneski to Fowlin’s residence. Upon

answering the door Fowlin was informed by Agent Koneski

that she had a warrant for his arrest and Fowlin was formally

placed under arrest. Fowlin was handcuffed and led back into

his living room where he was read the Miranda warnings.

Fowlin refused to sign an acknowledgement of these rights.

The officers then dispersed to different areas of the house in

order to secure it. At the request of Agent Koneski, Fowlin

signed a consent to search form at approximately 7:55 a.m.

incriminating evidence was found during the subsequent

search of the Fowlin home.

In the opinion denying defendant’s suppression motion,

this court specifically found believable Agent Koneski’s testi-

mony regarding the circumstances of defendant'’s arrest and

the subsequent search of Fowlin’s residence. The court ac-

cepted Agent Koneski’s recollection of the events as credible.

The court did not accept as credible defendant's recollection

of events. The defendant's account directly conflicted with the

agent's.

8a

Appendix B

Defendant argues that the facts presented militate a

conclusion that in this custodial environment, defendant’s

consent to the search was not effective, knowing, voluntary, or

without actual or implied duress or coercion. Defendant

claims to have been under duress due to the arrest in his home

in the early morning hours; in the presence of defendant's wife

and children; in the presence of eight officers plus a drug

sniffing dog; and in view of his post-Miranda warning refusal

to speak further without an attorney.

The court disagrees with defendant’s conclusions. The

court’s conclusion that the consent to search form signed by

the defendant was voluntary is supported by the record. The

form, which is dated 8/5/88, bears defendant's signature, and

was signed at 7:55 a.m. There is no evidence that defendant

did not understand his Miranda rights. Defendant knew that

he did not have to waive these rights. That is evident from his

refusal upon presentation to sign the waiver of rights form.

After defendant refused to sign the waiver of rights form,

neither Agent Koneski nor any of the other police officers

interrogated or questioned defendant. Defendant was then

requested to consent to a search of his home. Agent Koneski,

whom the suppression court found to be credible, testified

that she read the consent to search form to defendant. Defen-

dant then consented to the search and signed the form. There

is no evidence that defendant signed the form under any form

of duress or coercion. His written consent to the search of his

home was voluntarily and knowingly signed, just as his re-

quested prior acknowledgement of receipt of oral Miranda

warnings was voluntarily and knowingly withheld. He made

two critical choices that evening. The first was to decline to

acknowledge the officers properly warned of the Miranda

rights. The second was to allow a search of his home. The

9a

Appendix B

hearing judge was satisfied each reflected a knowledgeable,

free choice.

This case is unlike the case where police officers designed

post-Miranda warning questions to elicit incriminating admis-

sions from a custodial defendant who has asked for a lawyer.

Here, the consent to search the home was procured by the

police officers without regard to any request by defendant for

representation. Mere reluctance by a defendant to acknowl-

edge in writing that a police officer has properly warned a

defendant of his right to silence and right to counsel, and

refusal to waive rights, does not support an inference of a

request for counsel. It speaks rather to the defendant's choice

to personally test his wits against an accusatory custodian. He

failed the test.

helio stcelaa

IN THE COURT OF COMMON PLEAS OF

NORTHAMPTON COUNTY, PENNSYLVANIA

CRIMINAL

No. 1867 - 1988

COMMONWEALTH OF PENNSYLVANIA

VS.

RICHARD BANKROFT FOWLIN, Defendant

ORDER OF COURT

AND NOW, This 12th day of March, 1991, it is hereby

ORDERED, ADJUDGED and DECREED That defen-

dant's post-trial motions are denied; the Northampton County

Adult Probation Office is directed to conduct a presentence

investigation with report to the court within sixty (60) days.

BY THE COURT,

/sJAMES C. HOGAN, JUDGE

10a

Appendix C

APPENDIX C

J. A22001/92

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 02882 Philadelphia 1991

COMMONWEALTH OF PENNSYLVANIA

VS

RICHARD BANKROFT FOWLIN Appellant

Appeal from the Judgment of Sentence September 13,

1991 in the Court of Common Pleas of Northampton County,

Criminal No. 1867-1988

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment of the

Court of Common Pleas of NORTHAMPTON County be, and

the same is hereby AFFIRMED.

BY THE COURT:

/s/David A. George

PROTHONOTARY

Dated: July 28, 1992

lla

Appendix C

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 02882 Philadelphia 1991

COMMONWEALTH OF PENNSYLVANIA

VS

RICHARD BANKROFT FOWLIN Appellant

Appeal from the Judgment of Sentence September 13, 1991

in the Court of Common Pleas of Northampton County,

Criminal No. 1867-1988

BEFORE: CAVANAUGH, CIRILLO and POPOVICH, JJ.

FILED JUL 2 8 1992

MEMORANDUM:

This is an appeal from a judgment of sentence entered in

the Court of Common Pleas of Northampton County. We

affirm.

Richard B. Fowlin was convicted by a jury of possession

of a controlled substance (cocaine), possession with intent to

deliver a controlled substance (cocaine), and delivery of a

controlled substance (cocaine). Fowlin was sentenced to serve

a term of imprisonment of not less than eighteen months nor

more than forty-eight months and to pay a $5,000 fine. After

his post-trial motions were denied, Fowlin filed this timely

appeal.

On August 4, 1988, Susan B. Koneski, an agent for the

Pennsylvania Bureau of Drug Control, obtained a valid war-

rant for Fowlin’s arrest.’ The_following morning, Koneski,

accompanied by eight other officers, executed the arrest war-

rant. After arriving at Fowlin’s residence shortly before 8:00

re

. When Koneski applied for the arrest warrant, she was unable to secure a

search warrant for Fowlin’s residence. The police investigation had not produced

the probable cause necessary to issue a valid search warrant.

12a

Appendix C

a.m., Koneski arrested Fowlin, handcuffed him, and read him

the proper Miranda warnings. Koneski then gave Fowlin a

form to sign acknowledging that he was aware of these rights.

Fowlin refused to sign the form. In addition, he stated that he

would not speak to the police without an attorney present.®

Once Fowlin was in custody, he was placed on a sofa in

his living room. Koneski read him another form entitled “Con-

sent to Search and Seize.” Koneski asked Fowlin to read the

consent form himself; he read it aloud. She then asked if he

would sign the form. Fowlin immediately did so, stating that

the officers were welcome to search because there were no

drugs in his house. The consent to search form clearly indi-

cated that Fowlin could “refuse to consent to such a search.”

The officers conducted a thorough search of Fowlin’s

dwelling, seizing numerous plastic bags, a set of pocket scales,

a personal letter, and cash.* At trial, these items were intro-

duced into evidence over Fowlin’s objections.

Fowlin now presents the following issue for our review:

Did the trial court err in denying suppression of

evidence seized in the home of appellant as violative of

the Fifth Amendment to the United States Constitution

and Article I of Section 8 and 9 of the Pennsylvania

Constitution where appellant invoked his right to counsel

subsequent to Miranda warnings and notwithstanding

2 In its opinion the trial court stated that Fowiin did not request an attorney.

However, Koneski’s testimony at trial, as well as notations she had made on the

Miranda acknowledgement form, indicate that Fowlin did request an attorney.

3 Some of the cash found was marked money that had been used by a police

informant to purchase drugs from Fowlin. The drug sale, referred to as a “controlled

buy,” occurred on August 4, 1988 and constituted the probable cause for Fowlin’s

arrest warrant.

13a

Appendix C

thereafter police requested and secured consent to

search.‘

Our standard of review in an appeal from a denial of a

motion to suppress is a narrow one. We must examine the

evidence and find support for the trial court’s factual findings

within the record. In doing so, we must focus solely on the

evidence of the prosecution’s witnesses and the uncontra-

dicted evidence of the defense. If this evidence supports the

trial court's factual findings, we may reverse only if the legal

conclusions reached by the trial court are in error. Common-

wealth v. Reed, 400 Pa. Super. 207, 583 A.2d 459 (1990). The

credibility of witnesses is to be determined by the trier of fact,

and therefore we will accept the facts as determined by the

trial court if they are supported by the record. Commonwealth

v. Smith, 396 Pa. Super. 6, 577 A.2d 1387 (1990).

On appeal, Fowlin does not question the trial court's

findings of fact. He does, however, question the legal conclu-

sions drawn from those facts. Fowlin contends that the pro-

tections set out in Miranda v. Arizona, 384 U.S. 436 (1966),

and clarified in Edwards v. Arizona, 451 U.S. 477 (1981) and

Minnick v. Mississippi, 498 U.S. - - -, (1990), must be applied

to the present case. See Commonwealth v. Santiago, 405 Pa.

Super. 56, 591 A.2d 1095 (1991), allocatur denied, Pa. ,

600 A.2d 953 (1991) (table). If the accused is in custody and

has requested counsel, Miranda and its progeny require police

interrogation to cease until an attorney is present. If the

accused waives his Fifth Amendment right to remain silent

and makes incriminating statements before the requested

* The language contained in sections ei t and nine of the Pennsylvania

Constitution is nearly identical to the co ing sections of the federal consti-

tution. Thus we will decide this appeal solely on the basis of the constitution of the

Commonwealth of Pennsylvania.

14a |

Appendix C

attorney is present, the waiver is considered involuntary and

the incriminating statements cannot be used against the ac-

cused at trial. Id.

Here, after Fowlin was arrested and read his Miranda

rights, he stated he would not speak without an attorney

present. He was then read a consent to search form and was

asked to sign it. Fowlin did so. Fowlin now contends that since

he was asked to sign the form after requesting counsel, his

consent was an involuntary waiver of his right against self-in-

: crimination. According to Fowlin, the police, by ignoring his

request for counsel, violated the procedural safeguards cre-

ated by the Supreme Court in Miranda that are necessary to

limit involuntary waivers of Fifth Amendment rights.

Fowlin confuses the protections afforded by the various

amendments to the United States Constitution. The Fifth

Amendment protects the right to be free from self-incrimina-

tion, while the Fourth Amendment guarantees the right to be

free from unreasonable searches and seizures. The Miranda

protections stem from the Fifth Amendment and require that

an accused in custody be informed of his right to refuse to

speak to police without an attorney present. Conversely, the

right to be free from unreasonable searches and seizures

springs from the Fourth Amendment. To date, the United

States Supreme Court has not accorded Fourth Amendment

rights the same procedural protections as Fifth Amendment

rights. According to the Supreme Court, the propriety of a

search is to be determined on the basis of the “totality of the

circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218

(1973).

In Pennsylvania, there is no strict requirement that a

rson who consents to a search must be aware of his or her

right to refuse. Commonwealth v. Hubbard. 472 Pa. 259, 372

ee

15a

Appendix C

A.2d 687 (1977); see also Commonwealth v. Mancini, 340 Pa.

Super. 592, 490 A.2d 1377 (1985). A request for counsel is but

one factor to be considered in determining the validity of a

consent to search. Mancini, 340 Pa. Super. at 603, 490 A.2d at

1383. In applying the “totality of the circumstances” test, the

burden of showing valid consent to search rests squarely on

the Commonwealth. Commonwealth v. Griffin, 232 Pa. Super.

163, 336 A.2d 419 (1975). In cases where the accused is in

custody, the Commonwealth’s burden of establishing volun-

tary consent is particularly heavy. Commonwealth v. Smith,

470 Pa. 220, 368 A.2d 272 (1977).

The record indicates that when Fowlin gave his consent,

he knew that he had a right to refuse. The form that Koneski

read to Fowlin, which Fowlin also read aloud before signing,

clearly delineated his right to refuse consent for the police to

search without a search warrant. Moreover, Fowlin’s statement

that “the police are welcome to search” reinforces the volun-

tariness of his consent. This court has afforded great signifi-

cance to a consent to search that is made when one is aware

of the right to refuse. Commonwealth v. Richard, 233 Pa.

Super. 254, 336 A.2d 423 (1975). The “totality of circum-

stances” surrounding Fowlin’s signing of the consent to search

form indicate that Fowlin was fully aware of his right to

withhold his consent, but gave it nevertheless.

We conclude that the record adequately supports the trial

court's determination that Fowlin voluntarily consented to the

search of his house. Reed, supra. We, therefore, affirm the

judgment of sentence.

Judgment of sentence affirmed.

16a

Appendix D

anion:

APPENDIX D

Supreme Court of Pennsylvania

Middle District

Charles W. Johns, Esquire, Prothonotary 434 Main Capitol Building

Mildred E. Williamson, Deputy Prothonotary P.O. Box 624

Harrisburg, Pennsylvania 17108

(717) 787-6181

July 26, 1993

Gary Neil Asteak, Esquire

726 Walnut Street

Easton, PA 18042

Re: COMMONWEALTH OF PENNSYLVANIA

v. RICHARD BANKROFT FOWLIN

No. 0344 M.D. Allocatur 1992

Dear Petitioner:

This is to advise that the following Order has been en-

dorsed on the Petition for Allowance of Appeal in the above-

captioned matter:

“07/22/93

Petition Denied.

Per Curiam”

Sincerely yours,

/s/Shirley J. Phipps

PROTHONOTARY’S OFFICE

SUPREME COURT OF

PENNSYLVANIA

c: Cavanaugh, Cirillo & Popovich, JJ.

Superior Court 2882PHL91

Hogan, James C., J. Northampton

Criminal 1867CR88

John M. Morganelli, Esquire

Stephen G. Baratta, Esquire

a

17a

Certificate of Service

CERTIFICATE OF SERVICE

I, GARY NEIL ASTEAK, ESQUIRE, a Member of the

Bar of the Supreme Court of the United States and Counsel

of Record for Richard Fowlin, Petitioner herein, hereby cer-

tify that, pursuant to Rule 29.3, Rules of the Supreme Court,

I served three copies of the foregoing Petition For Writ Of

Certiorari to the Supreme Court of the Commonwealth of

Pennsylvania on each of the parties herein as follows:

On the Commonwealth of Pennsylvania, Respondent

herein, by delivering the same to John M. Morganelli, Esquire,

and Stephen G. Baratta, Esquire, in the Offices of the District

Attorney of Northampton County, Counsel of Record for said

Respondent, located at Northampton County Government

Center, 7th & Washington Streets, Easton, Pennsylvania, on

the 8th day of November, 1993.

All parties required to be served have been served.

DATED: November 8, 1993

GARY NEIL ASTEAK

Attorney for Petitioner