When can cops lie? Pittsburgh rape defendant asks Pa. high court to decide
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When Pittsburgh police interviewed Keith Foster in 2020 about a rape, a detective told him he wasn’t a suspect.
That was a lie.
Detective Brian Sellers had already gotten a search warrant for Foster’s DNA.
During the interview, Foster claimed he didn’t know the victim or have sex with her.
Investigators collected a cheek swab from Foster and let him leave. The DNA came back as a match, and Foster, 44, of Lincoln-Lemington, was charged with rape.
Now, Foster wants the Pennsylvania Supreme Court to throw out his statements about the victim before he goes to trial so prosecutors can’t use them to impeach his credibility in the face of the DNA evidence.
The underlying issue for the justices, who heard arguments on the case Thursday in Pittsburgh, is whether police can lie to suspects.
Bruce Antkowiak, who teaches criminal law at Saint Vincent College, said if the court rules in Foster’s favor, it would be a significant change in the state of the law.
“It would cause a necessary re-education on the part of detectives of what they can say and what they can use as a bluff or a lie,” Antkowiak said. “This is going to blur a line that, otherwise, is reasonably settled at this point.”
The DNA
On Jan. 27, 2019, a woman reported to Pittsburgh police that she had been sexually assaulted the night before.
She had been at Preeti’s Pitt restaurant in the Strip District and had three drinks, she said.
The woman told officers she remembered arguing with her boyfriend on her cell phone, and nothing else until the next morning when she woke up in her home with abdominal and vaginal pain. She also had bruises on her arms and legs.
Evidence was collected and submitted for DNA testing.
Police learned that the woman crashed her car after leaving the restaurant and believe Foster came upon the wreck and offered her a ride.
For more than a year, nothing happened in the case, until Sellers received the DNA test results from the rape kit.
He got a search warrant for Foster’s DNA and called him in for an interview.
On Nov. 2, 2020, Foster, who was not in handcuffs or read his Miranda rights, sat down with the detective.
Sellers told him he was not a suspect. It was only after that that Foster agreed to talk. He said he didn’t know the woman but picked her up that night after she wrecked her car. He told police they did not have sex.
At the end of the 20-minute interview, Foster let police collect his DNA.
According to the criminal complaint filed against him in June 2021, the DNA results showed an infinitesimal chance that the DNA from the rape kit wasn’t Foster’s — 1 in 591 nonillion (1 followed by 30 zeros).
He was charged with rape and sexual assault.
Suppression motion
A few months later, Foster filed a motion to suppress his statements to the police, arguing they were not voluntary and that he did not receive his Miranda rights warning him against self-incrimination.
Allegheny County Common Pleas Judge Anthony M. Mariani threw Foster’s statement out despite noting that police are allowed to lie to suspects.
“[T]o tell him, you’re not a suspect, and I want you to make a valid decision on asserting your rights or not, that’s a different kind of misrepresentation that goes to the voluntariness of the statement,” Mariani, who is retired, said.
The judge wrote that Sellers’ misrepresentations to Foster induced him to speak with the police.
“This assurance manipulated the defendant to believe that he was exposed to no jeopardy by agreeing to the interview,” Mariani said. “This court does not believe that the defendant’s decision to speak with Det. Sellers was a product of an informed and conscious choice.”
The Allegheny County District Attorney’s office appealed to the state Superior Court, which in June 2023 reversed Mariani, finding that the totality of the circumstances of Foster’s interview demonstrates that his statement was voluntary despite Sellers’ lie that Foster was not a suspect.
Foster appealed to the state Supreme Court.
‘Free to leave’
It has long been established by the U.S. Supreme Court and Pennsylvania precedent that police officers can lie to suspects about facts in a case — that their accomplices have confessed, that investigators found DNA or fingerprints on the scene.
But Allegheny County Deputy Public Defender Steven Tehovnik argued Thursday that Foster was misled about the potential legal consequences of speaking to Sellers.
“This lie is fundamentally different because it goes to legal rights,” Tehovnik said.
Justice Daniel D. McCaffery was incredulous.
“Your client knows there was a rape investigation. Your client knew he was with her, and your client knew the victim, and your client knows he had intercourse with her,” McCaffery said. “So what is it you’re trying to ask us to do, to tell your client to keep his mouth shut?”
Tehovnik said being told he wasn’t a suspect put Foster at an “unnecessary ease,” and that his client thought he was making a statement as a witness.
Tehovnik acknowledged there is no guarantee that Foster would have stopped talking and asked for a lawyer if he knew he were a suspect.
But if Foster had known he was a suspect, he would have been able to make a “free and unconstrained decision” to talk to the detective rather than being misled into doing so, Tehovnik said.
Police are not required to say whether a person is a suspect, Tehovnik said.
“I think that the bright line rule would prohibit the officer from lying about the status of a suspect,” he said. “If the reason you make the misrepresentation is designed to get [an] inculpatory statement, that’s where the line is drawn.”
But Assistant District Attorney Kevin McCarthy said that there is already a line that prohibits police from lying to persuade defendants to waive their rights.
McCarthy urged the court to look at the totality of the circumstances which showed that Foster was not in custody, that he had access to his cell phone and the interview lasted only 20 minutes.
“He was always free to leave,” McCarthy said.