PA Superior Court: Odor of Marijuana in Car Does Not Automatically Justify Search of Trunk

Criminal Defense Lawyer Zak Goldstein

Can the police search the trunk if they smell marijuana coming from a car?

Maybe not. Just recently, the Pennsylvania Superior Court decided the case of Commonwealth v. Scott. The court held that Philadelphia Police Officers did not have probable cause to search the car’s trunk despite the fact that the car smelled like marijuana, police could see marijuana smoke come from the car when they opened the door, and they found a still-burning marijuana blunt in the car. Because the police had found the obvious source of the odor, they did not have probable cause to believe that they would find additional contraband in the trunk. This is an important opinion which provides at least some limitation on the automobile exception, which is the rule that allows police to search a car without a search warrant so long as they have probable cause to do so.

Commonwealth v. Scott 

On February 1, 2017, at approximately 10:00 PM Officers Tamamoto and Kerr of the Philadelphia Police were traveling in a marked police car in the vicinity of 5800 North 16th Street in Philadelphia. Per Officer Kerr, this is a high crime area where numerous shootings and robberies have occurred. 

On this night, the officers noticed a 2000 Nissan Altima traveling north on North 16th Street with a malfunctioning center brake light. The officers initiated a traffic stop of the car. When the officers stopped the car, the defendant was the only person in it. According to the police, there was a strong odor of burnt marijuana emanating from the vehicle. The officers also stated that there was still marijuana smoke coming from the vehicle. After he was stopped, the defendant allegedly attempted to place a blunt in the center console. The officers claimed to have seen this and ordered the defendant to exit the vehicle. They then performed a Terry frisk of the defendant, but they did not find anything illegal on him. They then put the defendant in the back of their police car without handcuffing him.

The officers then searched the passenger compartment of the defendant’s car. They did not ask for his permission to search the car. In the center console, the officers recovered the blunt that they allegedly saw the defendant place there. In the driver’s side door, the officers found a jar with an orange lid that contained marijuana. The officers also found a black ski mask in the back seat of the car. After searching the passenger compartment, the officers then searched the trunk of the car. Upon searching the trunk, the officers found a loaded .38 caliber revolver wrapped up in clothes. At no point during their investigation did the officers request a drug-sniffing dog to search the defendant’s vehicle. 

The defendant was subsequently arrested. He was charged with carrying a firearm without a license, carrying a firearm on the public streets in Philadelphia, possession of a small amount of marijuana, and DUI. The defendant then litigated a motion to suppress the firearm recovered from the trunk of his vehicle. The defendant argued that the officers conducted an illegal, warrantless search of the trunk. The defendant did not contest the recovery of the marijuana. 

The trial court granted the motion to suppress. The court determined that the police “failed to articulate any facts that could have given them probable cause to use the key to open the trunk, search the trunk, and then the clothing which contained the firearm at issue in this case.” Thus, the trial court granted the defendant’s motion.

The Commonwealth appealed. The trial court filed a responsive opinion that stated that there was “no credible testimony or other evidence to suggest that it was reasonable for the officers to continue searching the vehicle for drugs after they recovered both the blunt and the jar of marijuana” from the vehicle. The Commonwealth argued on appeal that the automobile exception to the warrant requirement allowed the officers to search the defendant’s entire vehicle and thus the trial court’s decision to grant the defendant’s motion to dismiss was incorrect. 

What is the Automobile Exception to the Warrant Requirement? 

Both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution prohibits the government from engaging in unreasonable searches and seizures in areas where individuals have a reasonable expectation of privacy. If the police wish to search a place where a person has a reasonable expectation of privacy, then the police must obtain a warrant. However, in Commonwealth v. Gary, a plurality of the Pennsylvania Supreme Court adopted the federal automobile exception to the warrant requirement. This exception provides that the police do not need a search warrant to search a defendant’s automobile. Courts have approved of this exception because of the inherent mobility of automobiles and on the basis that individuals have a reduced expectation of privacy in automobiles. Therefore, if the police find contraband or have probable cause to believe that contraband is in the vehicle, then they may search any part of the vehicle that may contain that contraband. 

The problem this poses for defendants is that it is really easy for the police to claim that they smelled marijuana coming from a person or a car, and that accusation is difficult to rebut. Thus, police can stop a car, claim they smelled marijuana, and then typically justify a search of the entire car. Even if they do not find marijuana during the ensuing search, courts will often approve of the search anyway, finding that the odor must have come from smoking in the car at some earlier point in time.

The Superior Court’s Decision 

The three-judge panel of the Superior Court affirmed the trial court’s decision in granting the defendant’s motion to suppress. The majority opinion gave great weight to the trial court’s analysis of the officer’s testimony. Specifically, the majority focused on how the officer described that the blunt “was just smoked.” Additionally, per the majority opinion, the record did not provide any other facts that could have supported a belief that additional contraband was located in the trunk. There was no testimony that the driver could access the trunk from the passenger compartment of the vehicle. The officer also did not indicate that he had received any sort of special training to support his belief that additional contraband was located in the trunk. Finally, and most importantly, the majority opinion found that the odor of burnt marijuana and the small amount of contraband recovered from the defendant’s vehicle “did not create a fair probability that the officer could recover additional contraband in the trunk.” Therefore, the trial court’s ruling will stand. It is likely that the Commonwealth will appeal this decision.

Facing Criminal Charges? We Can Help. 

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or may be under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals, dismissals, and other favorable outcomes in cases involving charges such as Conspiracy, Aggravated Assault, Possession with the Intent to Deliver, Theft, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

The National Trial Lawyers Announces Zak Goldstein as One of Its Top 100 Criminal Defense Trial Lawyers in Pennsylvania

For Immediate Release

The National Trial Lawyers is pleased to announce that Zak Goldstein of Goldstein Mehta, LLC in Philadelphia has been selected for inclusion into its Top 100 Criminal Defense Trial Lawyers in Pennsylvania, an honor given to only a select group of lawyers for their superior skills and qualifications in the field.  Membership in this exclusive organization is by invitation only and is limited to the top 100 attorneys in each state or region who have demonstrated excellence and have achieved outstanding results in their careers in either civil plaintiff or criminal defense law.

The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who have demonstrated exceptional qualifications in criminal defense or civil plaintiff law. The National Trial Lawyers provides accreditation to these distinguished attorneys, and provides essential legal news, information, and continuing education to trial lawyers across the United States.

Philadelphia Criminal Defense Lawyer Zak Goldstein

With the selection of Zak Goldstein by The National Trial Lawyers: Top 100, Mr. Goldstein has shown that he exemplifies superior qualifications, leadership skills, and trial results as a trial lawyer. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Trial Lawyers: Top 100 is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the most outstanding trial lawyers chosen to represent their state or region.    

PA Superior Court: Relevant, Exculpatory DNA Evidence Requires New Homicide Degree of Guilt Hearing

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Payne. The Superior Court held that the trial court erred in denying the defendant a new degree of guilt hearing where recently-obtained DNA evidence showed that the defendant did not rape the victim in a case in which the prosecution obtained a conviction for first degree murder by relying primarily on the fact that the defendant had allegedly raped the victim prior to killing her. This case involved a Post-Conviction Relief Act (“PCRA”) challenge based on after-discovered evidence to the defendant’s conviction for first degree murder at a degree of guilt hearing in which the defendant pleaded guilty to homicide generally but argued that he should only be convicted of third degree murder. The degree of guilt matters tremendously in a homicide case because first degree murder requires a sentence of life without parole and third degree murder does not.

Commonwealth v. Payne

In 1977, the defendant pled guilty to murder generally, and three judges were empaneled to decide his degree of guilt. At this hearing, the Commonwealth presented evidence to support its position that the defendant committed a first degree murder. Specifically, the Commonwealth argued that the defendant murdered the victim while he was raping her.

As part of its case-in-chief, the Commonwealth presented the testimony of a Mr. Evans who was incarcerated with the defendant in Erie County prison. Mr. Evans testified that the defendant admitted to him that he strangled the victim in the woods after he raped her and that her death “was a culmination of a sexual fantasy that he had been living with for a long time; that he likes to tie women up and do crazy things to ‘em.” The Commonwealth also called a chemist employed with the Pennsylvania State Police to corroborate Mr. Evans’s testimony that the victim died while “protesting a sexual attack upon her.” The Commonwealth also presented a statement made by the defendant to the police.

Per the Superior Court’s decision, this statement was similar to Mr. Evans’s testimony. At the conclusion of the hearing, the defendant argued that this was a third degree murder. The Panel rejected his argument and convicted the defendant of first degree Murder. In its decision, the Panel placed significant weight on the conclusion that the defendant raped the victim when making its determination that it was a first degree murder and not third degree. Although other evidence was presented, the Panel relied exclusively of the testimony of Mr. Evans and the chemist in its opinion. The defendant was therefore automatically sentenced to life imprisonment without parole. The defendant then filed the first of several appeals and PCRA petitions.

After several unsuccessful attempts at post-conviction relief, on January 8, 1997, the defendant filed a PCRA petition requesting DNA testing on the seminal fluid that was recovered from the victim’s body. The PCRA court denied his petition. The Pennsylvania Superior Court affirmed the trial court’s decision and the Pennsylvania Supreme Court denied his petition for allowance of appeal. On February 6, 2003, the defendant filed a Motion for DNA testing pursuant to the then-newly passed provision of the PCRA permitting DNA testing under certain circumstances. The PCRA court again denied his motion, and he appealed to the Pennsylvania Superior Court. The Pennsylvania Superior Court affirmed the trial court decision and the Pennsylvania Supreme Court denied his petition for allowance of appeal.

Undeterred, the defendant then filed a complaint in the United States District Court for the Western District of Pennsylvania against the Erie County District Attorney’s Office alleging violations of 42 U.S.C. § 1983 for its refusal to permit the DNA testing. While his case was being litigated in federal court, the defendant filed a second motion for DNA testing. On October 4, 2011, the PCRA court again denied relief and both the Pennsylvania Superior Court and Supreme Court also denied him relief. However, on December 16, 2014, the United States District Court signed a stipulated order permitting the post-conviction DNA testing. The DNA test results established conclusively that the defendant was excluded as a contributor to the seminal fluid found on the victim’s body.

Based on this new evidence, the Defendant filed another PCRA petition asserting that he is entitled to a new trial or degree of guilt hearing based on this after-discovered evidence. Again, the PCRA court denied him relief and the defendant filed another appeal to the Pennsylvania Superior Court.

What is a Degree of Guilt Hearing?

A degree of guilt hearing is required when a defendant pleads generally to murder in a case in which the defendant could receive the death penalty. If a defendant pleads guilty or no-contest, then the degree of guilt shall be determined by a jury, unless the Commonwealth elects to have a judge make a determination as to what degree of murder the defendant is guilty of and consequentially what his sentence will be. These hearings are quasi-trials where the Commonwealth and the defense can present evidence and argue that the defendant should be found guilty of first or third degree murder.

What is after-discovered evidence under the PCRA?

42 Pa. C.S. § 9543 (a)(2)(vi) is the statute that governs the after-discovered evidence prong of the PCRA. In order to obtain relief under this subsection, which could include a new trial and/or sentencing, a defendant must show that 1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; 2) the evidence is not cumulative; 3) it is not being used solely to impeach credibility; and 4) it would likely compel a different verdict. The test is conjunctive, meaning that each element must be satisfied. Further, the defendant must satisfy each element by the preponderance of the evidence standard in order to be successful.

In making this determination, the court will consider several factors in making its decision including: the nature of the new evidence; whether, and to what extent, the new evidence is consistent or inconsistent with the other trial testimony; whether, and to what extent, the new evidence is consistent or inconsistent with documentary evidence; the prosecution’s theory at the original trial, and the difficulty of making this argument in light of the new evidence; the prosecutor’s closing remarks, which may demonstrate the importance of the new evidence; and other relevant factors. However, one must remember that this “after-discovered evidence” does not require that the new evidence prove a defendant’s innocence beyond a reasonable doubt. In other words, the defendant does not have to prove his innocence in order to be successful in his petition, he is only required to show that it would have likely compelled a different outcome.   

The Superior Court’s Decision

The Pennsylvania Superior Court held that the defendant was entitled to a new degree of guilt hearing. According to the Superior Court’s decision, the only issue was whether the defendant had established by a preponderance of the evidence that the DNA evidence would have changed the outcome of the trial if it had been introduced. In the instant case, the Superior Court held that this evidence would have changed the outcome of the hearing.

The reason is because the Commonwealth’s theory of the case was that the defendant killed the victim while sexually assaulting her. The prosecution repeatedly emphasized the evidence of seminal fluid during the closing argument to the Panel arguing that “at least it was a rape” and that the presence of seminal fluid was proof of the intent required for a first-degree murder conviction. As such, because the DNA evidence was uncontroverted in that the defendant was not the source, the Panel erred in placing such significant weight on it when making its decision. Further, this evidence discredits Mr. Evans’s testimony, a key witness against the defendant. Therefore, the defendant satisfied the after-discovered evidence requirements and the defendant is entitled to a new degree of guilt hearing.

Facing Criminal Charges? We Can Help.

Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have obtained full acquittals, dismissals, and other successful results in cases involving charges such as Conspiracy, Aggravated Assault, Theft, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court Upholds Dismissal of Case Where Prosecutor Intimidated Defense Witness

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Byrd, upholding the trial court’s decision to dismiss serious criminal charges due to prosecutorial misconduct. Specifically, in Byrd, the trial court found that the assigned Assistant District Attorney intentionally intimidated a potential defense witness and pressured her not to come to court. The Superior Court agreed and found that the prosecutorial misconduct required the dismissal of the charges under the Double Jeopardy Clauses of both the United States and Pennsylvania constitutions.

Commonwealth v. Byrd

The defendant was charged with multiple drug, firearm, and sexual assault offenses in Allegheny County, PA. As a result of multiple suppression motions that the defendant filed on his behalf and which were on appeal with the Superior Court, only the charge of Persons Not to Possess a Firearm Charge (VUFA 6105) went to trial. The defendant demanded a jury trial and chose to represent himself, but he did have stand by counsel assisting him. The trial began on November 28, 2018. In the middle of the trial, the judge received a voice mail from a woman who had been set to testify as a character witness for the defendant in which the woman claimed that the assigned ADA intimidated her out of testifying.

The judge held a hearing outside the presence of the jury and played the voice mail. In this message, the witness stated that she had been threatened by the ADA. She stated that she was scared to the point where she did not want to participate in the trial. She further stated that the ADA told her that the defendant “is the most dangerous man that he has ever met or ever seen” and asked if she knew “how or why he was in jail up in Ohio.” The prosecutor also went into specific detail about the prior charges against the defendant. Finally, the prosecutor brought up personal details about the witness. He informed her that he was aware of her financial hardship, a recent break-up, and that “he knows a lot more about me than he should.” According to her, this phone call “freak[ed] [her] out,” and  she was scared of retaliation by the District Attorney’s Office and police. She was concerned that she or her family members could be charged with a crime that they did not commit. At the end of the hearing, the judge declared a mistrial because of the ADA’s actions.

The trial court then held hearings on February 13, 2017 and March 20, 2017 to determine whether the case against the defendant should be dismissed with prejudice. At the hearing, the ADA testified. On direct examination, he testified that he obtained personal information about the witness from listening to the phone calls from the defendant. He further stated that the purpose of the call was to see whether the defendant’s prior convictions would affect her opinion of the defendant. He denied that he was trying to intimidate her.

On cross-examination, he admitted that he told the witness that the defendant was one of the most dangerous people that he had ever met. He also admitted that he knew personal details about the witness from listening to the defendant’s prison phone calls. After these hearings, the trial court dismissed the charge with prejudice. The trial court then banned the prosecutor from ever litigating in her courtroom again and called him “sneaky.” The Commonwealth appealed.

In its appeal, the Commonwealth did not dispute that a mistrial should have been granted in the defendant’s case. The Commonwealth only appealed the finding of prosecutorial misconduct that resulted in the trial court dismissing the charges and preventing retrial because of double jeopardy. Specifically, the Commonwealth argued that the trial court failed to discern the distinction between prosecutorial error, which would not require the dismissal of the charges, and prosecutorial overreach, which would.  

What is Double Jeopardy?

The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same criminal episode. The basic premise behind the Double Jeopardy Clause is that the government only gets one opportunity to convict a defendant. If the defendant is acquitted of a crime, then the government cannot try him again. However, an acquittal is not the only way to trigger the Double Jeopardy Clauses. It is also important to note that a state court conviction or acquittal may not prevent the federal government from prosecuting the defendant on federal charges.

Can Prosecutorial Misconduct Trigger Double Jeopardy Protections?

Yes. If a prosecutor engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Pennsylvania’s Constitution provides broader protections for criminal defendants than the U.S. Constitution. Consequently, Article I § 10 of the Pennsylvania Constitution bars retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. It is important to note that that an error by a prosecutor does not necessarily deprive the defendant of a fair trial. However, where the prosecutor’s conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied and the charges must be dismissed.

It is important to emphasize that an inadvertent mistake by a prosecutor can be remedied by a mistrial and subsequent re-trial. It is only the more egregious actions by prosecutors that will result in the court dismissing the case with prejudice. As the Pennsylvania Superior Court stated in a previous decision that addressed this issue “intentional prosecutorial misconduct…raises systematic concerns beyond a specific individual’s right to a fair trial that are left unaddressed by retrial.”

The Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s dismissal of the charges against the defendant. Two judges voted in favor of affirming the order, and one judge dissented. The Court agreed that the ADA intentionally intimidated the witness to prevent her from testifying with the intent of depriving the defendant of a fair trial. Specifically, the Superior Court was deeply troubled by the prosecutor’s conduct in informing the witness of personal details of her life and that he editorialized about the defendant’s dangerous propensity. The Superior Court found that the prosecutors statements placed the witness in fear for her own safety and for that of her family. Thus, according to the Superior Court, the prosecutor’s actions were intended to deprive the defendant of a fair trial. His acts triggered double jeopardy protections, and the case against the defendant was properly discharged.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Theft, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.