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In a decision that could give police in Pennsylvania a wider time frame for interrogating criminal suspects, the state Supreme Court has ruled that voluntary statements made by an accused prior to arraignment but more than six hours after arrest are no longer inadmissible. In a 5-1 decision, the justices instructed state courts to instead consider “the totality of the circumstances surrounding the confession” in determining the admissibility of a suspect’s statements. “Pennsylvania courts have already abandoned an ‘all or nothing’ application of the six-hour rule,” Justice J. Michael Eakin wrote in Commonwealth v. Perez. “If the delay was caused by circumstances beyond police control, and there was no apparent coercion, voluntary confessions have generally not been excluded because of the delay.” Eakin was joined by Chief Justice Ralph J. Cappy and Justices Sandra Schultz Newman and Ronald D. Castille. Justices Russell M. Nigro and Thomas G. Saylor filed concurring and dissenting opinions. Castille filed a concurring opinion. One defense attorney involved in the case warned that the decision could result in the removal of an “important check” on police behavior. A civil liberties advocate said that the decision could lead to more litigation than the previous six-hour rule had generated. According to the opinion, John Perez was a juvenile at the time of his arrest in November 1996 on suspicion of robbery. At 4:30 p.m. on Nov. 24, three men robbed a Philadelphia deli at gunpoint. Less than two hours later, a pizza shop was robbed, also by three men. Descriptions from both scenes of the men and their car were the same. Fifteen minutes after the pizzeria robbery was reported, a car matching witnesses’ descriptions was stopped, the opinion states, and its occupants were arrested. Perez, apparently attempting to avoid being served with outstanding warrants, gave the police a false name, birth date, address and phone number. The police did not learn of Perez’s true identity until midnight, at which time they called his aunt (with whom he lived) and were successful in gaining her permission to interview Perez, according to the opinion. Three-quarters of an hour later, he was read his Miranda rights; he later confessed to participation in both robberies. Questioning was finished by 4:30 a.m., and Perez was arraigned nearly five hours later. A trial court denied Perez’s suppression motion, the opinion states, and the Superior Court upheld that decision. The majority opinion cites to the two state Supreme Court cases that gave rise to the six-hour rule: 1977′s Commonwealth v. Davenport and 1987′s Commonwealth v. Duncan. Davenport gave courts a bright-line rule for unnecessary delays between arrest and arraignment; in Duncan, the court responded to “mechanical enforcement” of the six-hour rule, Eakin wrote, by reiterating that the rule was intended to help prevent coercion and ensure prompt arraignment. However, the majority found, the formulation of a steadfast rule led to further problems. “Application of a stringent bright-line rule to the vastly different set of circumstances that may be involved in arrest, investigation and arraignment has yielded perplexing results,” Eakin wrote, “and the rule has drawn its share of criticism.” The opinion also calls attention to the score of states whose courts have rejected adopting the federal McNabb-Mallory rule – which mandates automatic exclusion for voluntary statements made during periods of unnecessary delay – in favor of a “totality of circumstances” standard. “Even while professing to follow a rule of automatic exclusion based on the passage of time, our courts have recognized so many exceptions that, as one member of this court has observed, the rule is ‘so readily capable of avoidance as to function as no rule at all,’” Eakin wrote, quoting Saylor’s words in the 2000 opinion Commonwealth v. Bridges. The majority noted the unpreventable circumstances that led to the delay in Perez, among them the need to investigate both robberies, Perez’s dishonesty about his identity and the duty of the investigating detective to interview all three suspects by himself. Perez had not been improperly treated between his arrest and arraignment, the majority concluded. “Nothing in the duration or means of interrogation, appellant’s physical or psychological state, the conditions attendant to detention, the attitude exhibited by the detective during interrogation, or the duration or circumstances of appellant’s pre-interrogation detention,” Eakin wrote, “indicates appellant’s will was overborne or that his statement was the product of coercion.” Perez’s judgment of sentence was affirmed. Four of the justices supported making the opinion retroactive. In his concurring opinion, Castille laid out the argument for retroactivity, writing that the six-hour rule had, in effect, already been shelved. “The court’s formal abrogation of the Davenport/Duncan rule – or, more properly, our belated recognition that the rule has evolved in such a way that it is no longer the bright-line rule it once purported to be – does not trigger equivalent concerns of detrimental reliance,” Castille wrote. In a concurring and dissenting opinion, Nigro agreed with the majority’s decision to deny Perez relief. How-ever, he argued against the abandonment of the six-hour rule. “My primary concern with [the majority's] approach is simply that, in the absence of reasonable and clear time restraints in which police officers are allowed to question suspects,” Nigro wrote, “suspects are much more likely to be exposed to the coercive effect of prolonged police interrogation, which in turn, will yield a greater pool of unreliable confessions.” Saylor agreed that the six-hour rule should go but advocated prospective application of the “totality of circumstances” test. “I disagree with the majority’s decision to abandon the six-hour rule retrospectively, as the general practice is to apply new procedural rules of non-constitutional dimension prospectively,” Saylor wrote. “As the Davenport/Duncan rule was in effect at the time of appellant’s confession, . . . I believe that appellant’s confession should have been suppressed.” Cathie Abookire, spokeswoman for the Philadelphia District Attorney’s Office, said her office has not had a chance to review the decision and could not comment on it. Perez was represented by Jeffrey P. Shender of the Defender Association of Philadelphia. “The old rule served an important purpose in terms of putting an important check on the behavior of the police,” said Karl Baker, deputy chief of the appeals division for the association. Larry Frankel, legislative director for the American Civil Liberties Union of Pennsylvania, said that the “totality of circumstances” aspect of the ruling could give much leeway to individual courts performing statement admissibility analyses. “The question is whether this decision will lead to any less litigation,” Frankel said. “My guess is that it will not.” (Copies of the 25-page opinion in Commonwealth v. Perez , PICS No. 04-0465, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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