Pa. Supreme Court lets prosecutor use accused rapist's statement to lying cop

Prosecutors can use a Pittsburgh rape defendant’s own words against him at trial after the state Supreme Court refused to suppress a statement he made to police, who falsely told him he was not a suspect.

The court last week said the statement — in which Keith Foster told a detective he did not have sex with the alleged victim — is admissible at the man’s pending trial.

“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,” Justice Daniel D. McCaffery wrote.

The decision, had it gone the other way, would have been a significant change to the law that permits police officers to lie to suspects during interrogations.

As it stands, though, law enforcement can continue to make misrepresentations during investigations.

Foster, 40, of Lincoln-Lemington, is charged with raping a woman on Jan. 26, 2019, after she left Preeti’s Pitt restaurant in the Strip District.

The woman reported the attack the next day and had an examination in which DNA was collected.

Months later, as Pittsburgh Det. Brian Sellers was investigating, he asked Foster, who worked at the restaurant, to come in for an interview. Sellers also obtained a warrant for Foster’s DNA.

On Nov. 2, 2020, Foster met with the detective, according to a summary of the case in the Supreme Court opinion. He was not in handcuffs and was not read his Miranda rights. Foster was free to leave and had access to his cell phone the whole time.

During the interview, Sellers said, “I appreciate you coming in. … Like I told you over the phone, like right now you’re not a suspect.”

He repeated the phrase “right now, you’re not a suspect,” at least twice.

Foster gave a statement, saying that he did not know the woman but stopped to assist her that night after he came upon her on the side of the road after she crashed her car.

He told police they did not have sex.

At the end of the 20-minute interview, police took a DNA sample from Foster.

The results, returned months later, showed the chance the DNA from the rape kit wasn’t Foster’s was 1 in 591 nonillion (1 followed by 30 zeros).

Foster was charged with rape and sexual assault.

A different kind of lie

Prior to the case going to trial, Foster filed a motion to suppress the statement he made to Sellers that day, arguing it was not voluntary.

Now-retired Allegheny County Common Pleas Court Judge Anthony M. Mariani granted the motion and tossed the statement.

Although police are permitted to lie to suspects, Mariani said that Sellers’ comment was a “different kind of misrepresentation that goes to the voluntariness of the statement.”

By telling Foster he wasn’t a suspect, Sellers “manipulated the defendant to believe that he was exposed to no jeopardy by agreeing to the interview,” Mariani said.

The district attorney’s office appealed and won at the state Superior Court, an intermediate appeals court, which reversed Mariani.

The Supreme Court heard oral argument on the case in October, and in a 23-page opinion issued Thursday, affirmed the Superior Court.

Foster understood the purpose of the interview, went to it voluntarily and was not restrained in any way. The detective was accommodating and non-confrontational, McCaffery wrote.

“We should never disregard common sense in our application of the law,” the court wrote. “There is simply no support for Foster’s assertion that his ‘capacity for self-determination was critically impaired’ by Detective Sellers’ misrepresentation of his status as a potential suspect. Nor do we find the misrepresentation ‘so reprehensible as to offend basic societal notions of fairness(.)’”

In a friend of the court brief, the Pennsylvania Association of Criminal Defense Lawyers urged the court to rule in Foster’s favor and eliminate police deception in interrogations, arguing it would reduce the risk of false confessions and enhance police legitimacy.

Although the majority chose not to take that action, Justice David N. Wecht wrote in a concurring opinion that their decision “does not purport to answer the question of whether law enforcement officers ought to be permitted to deceive suspects.”

While Foster’s statement was voluntary, Wecht wrote, “allowing officers to deceive interviewees may well be unwise.”

“That the United States Constitution tolerates a practice does not necessarily mean that the practice is wise,” Wecht wrote. “The federal constitutional floor could always be raised.”

The case, which had been on hold pending the Supreme Court decision, will now proceed in Common Pleas Court.