PA Supreme Court: Police May Lie To You During Interrogation

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Foster, re-affirming the rule that the police generally may lie to you during an interrogation and still use any statement they have obtained in court against you.

In Foster, the Court considered whether a detective’s misrepresentation that the defendant was “not a suspect,” despite having already obtained a search warrant for his DNA, rendered the defendant’s subsequent statements involuntary and inadmissible. The Court ultimately ruled in favor of the Commonwealth, holding that such a lie does not automatically invalidate a suspect’s otherwise voluntary statement under the Fifth Amendment to the United States Constitution.

The Facts of Foster

The case arose from a 2019 incident in Pittsburgh, where the complainant (K.C.) visited a bar, consumed alcohol, and later woke up with injuries and memory gaps. This prompted her to seek a sexual assault exam. The lab analysis revealed the presence of male DNA, and a Pittsburgh Police Detective began an investigation.

The defendant, who worked at the bar, was identified as someone who had contact with K.C. that night. After learning of this, the detective applied for and obtained a search warrant for the defendant’s DNA. Before executing the warrant, the police asked the defendant to come to the police station for an interview. The defendant voluntarily did so.

During the interview, the detective told the defendant twice that he was "not a suspect" and that he was just one of many people being interviewed. The detective did not advise the defendant of his Miranda rights because the defendant was not in custody. The interview remained cordial and non-confrontational. The defendant denied any sexual contact and voluntarily provided a DNA sample even after being told (late in the interview) that the detective had obtained a search warrant before he had arrived. Obviously, none of this was a great idea - the defendant did not have to give a false statement to the police or voluntarily surrender his DNA until the police obtained and executed a search warrant.

When the defendant’s DNA matched the DNA found in the rape kit, he was arrested and charged with rape of an unconscious person and sexual assault. He moved to suppress his statements, arguing they were involuntary because the detective lied about the nature of the encounter. He alleged that because the detective lied when telling him he was not a suspect, he was tricked into giving the statement and his DNA.

Suppression Court Grants Motion

The trial court granted the suppression motion, finding that the detective’s false statement deprived the defendant of the ability to make a “free and unconstrained choice” to speak. The court emphasized that the detective had already considered the defendant a suspect. This fact was reflected in the affidavit of probable cause used to obtain the DNA warrant. Although the court did not find that the detective acted in bad faith, it concluded that the false statement undermined the voluntariness of the statement.

Superior Court Reverses

The Commonwealth appealed to the Pennsylvania Superior Court. On appeal, the Superior Court reversed. Applying a totality-of-the-circumstances test, the panel noted that the defendant came to the police station voluntarily, was not restrained, used his cell phone freely, and was not subjected to coercive tactics. The interview was short and amicable. The court concluded that while the detective’s statement was misleading, it did not render Foster’s statement involuntary.

Pennsylvania Supreme Court Affirms: Misleading a Suspect About Their Status Does Not Render a Statement Involuntary Per Se

In a majority opinion by Justice McCaffery, the Pennsylvania Supreme Court affirmed the Superior Court. The Court reiterated that under both federal and state precedent, police deception does not automatically invalidate a suspect’s statement. The key inquiry remains whether the defendant’s will was overborne under the totality of the circumstances.

The Court rejected the idea that telling someone they are not a suspect, even when they are, automatically makes their statements inadmissible. The defendant was not in custody, the interview was non-coercive, and he voluntarily submitted to questioning and DNA testing. The Court also declined to adopt a per se rule automatically barring such misrepresentations. The police are allowed to lie to a suspect during an interrogation.

Importantly, while the Court acknowledged arguments from the defendant and amicus PACDL about the dangers of deceptive interrogation practices—including the risk of false confessions—it found that the defendant waived any broader claim under Article I, Section 9 of the Pennsylvania Constitution by failing to preserve the argument below.

What This Means for Criminal Defendants

This case underscores the fact that Pennsylvania courts continue to tolerate certain forms of police deception during voluntary interviews. Unless a suspect is formally in custody or subjected to inherently coercive tactics, courts are unlikely to suppress statements based solely on misleading remarks about their status.

However, the decision also offers a roadmap for defense attorneys challenging similar statements: had the defendant preserved his state constitutional claim under Article I, Section 9, the Court may have considered drawing a stricter line. Future cases may test whether Pennsylvania’s Constitution should provide broader protections than the Fifth Amendment.

Key Takeaway

If you are contacted by police and told you're “not a suspect,” that statement may not shield you from criminal charges. Anything you say can still be used against you. Always consult with an attorney before agreeing to any interview or providing evidence if there is any chance that you could be a suspect in the crime.

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