Attorney Goldstein Wins PA Superior Court Appeal of Motion to Suppress Gun
Criminal Defense Lawyer Zak Goldstein
Philadelphia Criminal Defense attorney Zak T. Goldstein, Esquire, recently won a Superior Court appeal in the case of Commonwealth. v. T.G. In T.G., prosecutors had charged the defendant with possession of a firearm by a prohibited person (VUFA 6105), possession of a concealed firearm without a permit (VUFA 6106), and possession of a firearm on the streets of Philadelphia (VUFA 6108). T.G. had retained a different firm for his motion to suppress and trial. The trial court denied T.G.’s motion to suppress the gun, and a jury eventually convicted him. He was sentenced to 8-16 years’ incarceration.
T.G. retained Attorney Goldstein for his appeal to the Superior Court. On appeal, Attorney Goldstein challenged the trial court’s denial of the motion to suppress, the trial court’s decision to remove family members from the courtroom during jury selection, and the trial court’s refusal to properly instruct that it could consider questions regarding the credibility of the officers with respect the reasons for searching T.G.’s car when considering whether they believed the officers that T.G. in fact possessed a gun.
At the motion to suppress, the officer had testified as follows:
On November 23, 2017, a little after 1:00 a.m., Officer Alvarez was in a marked police car on routine patrol in the Germantown area of Philadelphia. Officer Alvarez was driving with his partner Officer William Benson in the passenger seat. At the time, Officer Alvarez had been a police officer for five years with four of those years assigned to the 14th District, which included Germantown. Since he began working in the district, Officer Alvarez estimated he has made about 15 to 20 arrests involving narcotics and firearms being found together.
Near the intersection of Germantown Avenue and Berkley Street, Officer Alvarez saw a 2011 Chevy Camaro traveling southbound on Germantown Avenue. T.G. was driving the Chevy Camaro and had a passenger with him in the front. Noticing that the Chevy Camaro had dark window tinting, Officer Alvarez began to follow the car for several blocks. Although the car did not swerve, speed or make any sudden stops, Officer Alvarez pulled the car over because of the possible violation under 75 Pa.C.S. § 4524.1. When he saw the officer’s lights, T.G. immediately pulled the Chevy Camaro, which was registered in his name, to the side of the road.
Officer Alvarez walked up to the driver’s side window and asked Griffin to lower his window; Officer Alvarez later testified that he could not see into the car because of the tint. After T.G. lowered his window, Officer Alvarez asked for his license, registration and insurance. As T.G. looked for the information, Officer Alvarez smelled an odor of burnt marijuana coming from inside the car, describing it as a “mediocre” smell but not overwhelming. Though he had no specialized training in identifying marijuana, Officer Alvarez was familiar with its odor through his experience as a police officer. Despite smelling marijuana, however, Officer Alvarez did not see any narcotics or paraphernalia inside T.G.’s car.
Besides the odor of marijuana, Officer Alvarez also noticed that T.G. appeared “very nervous” as he was looking for his information. According to Officer Alvarez, T.G. was breathing heavily and his hands were shaking. At the suppression hearing, though, Officer Alvarez admitted that T.G. did not have bloodshot eyes or dilated pupils.
After T.G. found his information in the glove compartment, Officer Alvarez asked him to exit the car. T.G. complied and got out. Officer Alvarez asked him if there was anything illegal in the car or if either he or his passenger had a permit to carry a firearm. T.G. responded that there was nothing illegal in the car and that his passenger had a permit to carry. Because T.G. was wearing a large puffy jacket, Officer Alvarez patted him down for weapons. Feeling none, Officer Alvarez put T.G. in the back of his patrol car without handcuffs.
Officer Alvarez then returned to the Chevy Camaro to conduct a warrantless search for narcotics based on the odor of marijuana. Although he did not find any narcotics, Officer Alvarez found a Ruger 9mm handgun under the driver’s seat. After finding the handgun, Officer Alvarez went back to his patrol car to check if T.G. had a license to carry. As he did this, Officer Alvarez heard T.G. moving around in the back. This prompted Officer Alvarez to put handcuffs on T.G. When Officer Alvarez tried to do so, T.G. pushed him away and took off running but was soon captured. T.G. was charged with persons not to possess, receiving stolen property, firearms not to be carried without a license, carrying firearms in Philadelphia and resisting arrest.
While the appeal was pending, Pennsylvania appellate courts decided the cases of Commonwealth v. Barr and Commonwealth v. Alexander. In Barr, the Pennsylvania Superior Court concluded that the odor of marijuana alone does not automatically justify the warrantless search of a car. Similarly, in Commonwealth v. Alexander, the Pennsylvania Supreme Court determined that absent exigent circumstances, police must obtain a search warrant prior to searching a motor vehicle. Given this change in the law, Attorney Goldstein filed a reply brief arguing that Barr was now controlling in this case and that the motion should have been granted because the odor of marijuana did not give the police the right to search the car.
The Superior Court agreed and remanded the case to the trial court. The Superior Court instructed the trial court to reconsider its ruling on the motion to suppress in light of Barr and Alexander. The trial court was instructed to determine if the police had any legitimate basis other than the odor of marijuana for searching the car and also to decide whether Alexander, which requires a search warrant, applies retroactively. If Alexander applied retroactively, then the trial court was also directed to evaluate whether police had the exigent circumstances necessary for searching the vehicle without a warrant.
Following the remand, Attorney Goldstein successfully convinced the trial court to reconsider its original ruling and grant the motion to suppress the gun. The Commonwealth argued that although the odor of marijuana alone does not provide the probable cause for a search, the marijuana along with T.G.’s nervousness, the late hour, the fact that T.G. said the passenger had a license to carry, and the puffy coat provided the Commonwealth with the necessary reasonable suspicion to conduct a frisk of T.G. and of the passenger compartment of the car. Attorney Goldstein argued that Alexander applied retroactively, that police should have obtained a search warrant prior to the search, and there was simply no legitimate basis for concluding that T.G. was involved in some criminal activity or armed and dangerous which would justify a frisk.
The trial court agreed with the defense and granted the motion to suppress. T.G., who would have had to serve up to 16 years in prison, was promptly released from state custody.
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