Motions to Suppress

Attorney Goldstein Wins Dismissal of DUI Case Due to Racist Police Facebook Posts

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won the case of Commonwealth v. R.J.when the Commonwealth agreed to withdraw the case due to the racist Facebook posts posted on social media by the arresting officer. In R.J., police established a DUI checkpoint on a Saturday night. R.J. was stopped at the checkpoint and ordered out of the car when the police determined that they smelled an odor of alcohol coming from the vehicle. They then performed field sobriety tests, which they claimed he failed, and placed him under arrest. Officers then detained R.J. in a holding pen for about an hour prior to administering a breathalyzer. The breathalyzer showed that R.J. had a BAC well above the legal limit, so police formally arrested him and charged him with DUI.

Attorney Goldstein filed a motion to suppress in the Municipal Court, and the motion was originally successful. Attorney Goldstein argued both that police had failed to follow the requirements of the Pennsylvania Constitution in determining the location of the checkpoint and that the Commonwealth failed to meet its burden at the motion because police did not call the officer who actually arrested R.J. to testify. Instead, they called his partner who was standing nearby when the arresting officer ordered R.J. out of the car. Thus, Attorney Goldstein argued that the officer that actually testified was basing his information about the arrest and odor of alcohol entirely on hearsay, and therefore the Commonwealth failed to prove at the evidentiary hearing on the motion that police actually had probable cause or reasonable suspicion to detain R.J.. 

The Municipal Court found that the checkpoint was constitutional but agreed that the Commonwealth was required to call the actual arresting officer to testify. Therefore, the Court granted the motion. The Commonwealth, however, appealed the granting of the suppression motion to the Court of Common Pleas. The Common Pleas judge found that the two officers were working together, and therefore the collective knowledge doctrine applied. The Court of Common Pleas reasoned that the partner was entitled to rely on the observations of the original arresting officer and that the Commonwealth had met its burden. Therefore, the Common Pleas judge reversed the granting of the motion and remanded the case for trial. 

Attorney Goldstein and R.J. made the decision to continue fighting the case even after the Common Pleas Court reversed the suppression motion. Attorney Goldstein still planned to challenge whether police had properly observed R.J. for the twenty-minutes required by PennDOT regulations prior to conducting R.J.’s breath test. However, shortly before trial, the Commonwealth turned over records showing that the arresting officer, who they had not called to testify at trial, had posted dozens of extremely racist and anti-muslim messages on Facebook. The Commonwealth turned this over right before trial, so Attorney Goldstein moved for the court to dismiss the charges based on the fact that the Commonwealth had violated its discovery obligations under the Rules of Criminal Procedure and under the Pennsylvania Constitution. Essentially, the police had known about the messages for months, and therefore they constituted Brady material that should have been turned over prior to the motion to suppress. After Attorney Goldstein moved to dismiss the case due to the Brady violation and discovery violation, or in the alternative, re-open the motion to suppress for a new hearing at which the arresting officer would have to testify and be confronted with the horrific posts, the trial judge asked the Commonwealth to consider withdrawing the charges, and they eventually did. All charges against R.J. were dismissed and he will be eligible to have the arrest expunged.

 Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545to speak with an experienced and understanding defense attorney today.

PA Supreme Court: Police Cannot Legally Stop You Just For Carrying A Gun

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Hicks, holding that the police cannot stop someone just because they believe the person has a gun. This decision could affect hundreds of cases, especially in Philadelphia, where the police routinely stop people for carrying guns without any actual knowledge of whether that person may be carrying lawfully.

Commonwealth v. Hicks

On June 28, 2014, at approximately 2:30 A.M., a remote camera operator conducting live surveillance of a gas station and convenience store in Allentown, Pennsylvania notified police officers that a patron of the establishment was in possession of a firearm. The camera operator advised officers that the individual showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside the convenience store. This individual eventually became the defendant. Notably, the defendant possessed a valid license to carry a concealed firearm, and he was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question and at the observed location, there was nothing unlawful about the defendant’s possession of the handgun nor the manner in which he carried it. It is also not illegal to show a gun to someone else (so long as you do not point it at them).

While responding officers were en route, the defendant entered and exited the convenience store and then reentered his vehicle. Before the defendant could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped his vehicle. Believing that the defendant had moved his hands around inside the vehicle, one of the officers drew his service weapon as he approached the defendant’s vehicle and ordered him to keep his hands up. Other officers came and restrained the defendant and removed the firearm. The officers stated that there was an odor of alcohol emanating from the defendant. They then searched him and recovered a small amount of marijuana.

Because the defendant had a license to carry a firearm, he was not charged with any crimes relating to the firearm. However, he was charged with DUI, possession of a small amount of marijuana, and disorderly conduct. The defendant filed an omnibus pre-trial motion seeking suppression of the evidence. He also filed a writ of habeas corpus alleging that there was not sufficient evidence to hold him for trial on the charge of disorderly conduct. The trial court agreed and dismissed the disorderly conduct charge. However, the court denied his motion to suppress.

In denying his motion, the trial court stated that possession of a concealed weapon in public creates the reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed. This was based on the Pennsylvania Superior Court decision in Commonwealth v. Robinson (this is also referred to as “The Robinson Rule”). After the motion, the defendant proceeded to a non-jury trial where the court found him guilty of one count of DUI and acquitted him of the remaining charges. He was sentenced to a term of incarceration of thirty days to six months and was assessed a monetary fine. The defendant subsequently filed an appeal. The Superior Court affirmed his decision. Like the trial court, the Superior Court focused mainly on The Robinson Rule and held that the officers had reasonable suspicion to stop the defendant. The defendant then filed an allowance of appeal to the Pennsylvania Supreme Court which was granted.

What is the Robinson Rule?

The Robinson Rule was a rule that provided that carrying a concealed firearm constituted per se reasonable suspicion authorizing the use of official force to seize an individual in order to investigate whether the person is properly licensed. In other words, if the police received information that you were in possession of a firearm you could be stopped, by force if necessary and without a warrant, and subjected to an investigation to determine whether or not you were lawfully allowed to possess the firearm.

For those of you familiar with the Terry doctrine, this seems out of place with it because possessing a firearm is often not illegal. The Second Amendment of the United States Constitution allows for individuals to possess firearms. Because a Terry stop is only warranted when the officer has a reasonable suspicion that criminal activity is afoot (or in other words an objectively reasonable belief based on all of the facts known to the officer that the person stopped is, or is about to be, engaged in criminal activity). With Terry in mind, it seems peculiar that The Robinson Rule would be constitutional. This is what the defendant argued in his appeal to the Pennsylvania Supreme Court.

Carrying A Gun Does Not Give Police Reasonable Suspicion

In its decision, the Pennsylvania Supreme Court first analyzed several of its prior decisions and decisions from other jurisdictions that addressed the issue of whether the police can stop someone for possession of a firearm. For instance, the Court analyzed the decisions in Commonwealth v. Hawkins and Commonwealth v. Jackson, two cases that are routinely cited when litigating a motion to suppress a gun. In these decisions, the Pennsylvania Supreme Court highlighted how its predecessors routinely dismissed the Commonwealth’s argument that the police can stop someone simply because they have information that they have a gun.

The Court also applied the Terry and its progeny of cases to the facts in the defendant’s case. Based on its analysis, the Pennsylvania Supreme Court found that The Robinson Rule subverts the fundamental principles of Terry. The Court stated “[w]e find no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public…it is not a criminal offense for a license holder…to carry a concealed firearm in public.” The Court further stated “[u]nless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there is simply no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.”

Finally, the Court analogized this to driving a car. It is obviously a requirement for someone to have a driver’s license to operate a motor vehicle, however the police cannot stop every single person to ascertain this information. Because possessing a gun is legal, police are not allowed to stop every person to see if they have a license. Consequently, the Supreme Court found that the lower courts erred when denying the defendant’s motion to suppress. Therefore, the Court remanded the case for the trial court to rule on whether police had any basis for stopping the defendant beyond his mere possession of a concealed weapon.

Facing criminal charges? We can help.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

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, 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.

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

Criminal Defense Lawyer Zak Goldstein

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

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.





PA Superior Court: Police Justified in Stopping Car That Left Travel Lane Four Times

Zak Goldstein Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Cephus. The court held that the Montgomery County Court of Common Pleas properly denied the defendant’s motion to suppress because state troopers had probable cause to stop the defendant for motor vehicle code violations after they observed the defendant’s car crossing into another lane of travel three or four times.

Can Police Stop You For Briefly Crossing Into Another Lane of Travel?

In short, the law is not totally clear in Pennsylvania. It depends on all of the circumstances and how many times you cross the line, and courts have reached conflicting opinions when confronted with different sets of facts.

In Cephus, Pennsylvania State Troopers were traveling westbound on Route 422 in Montgomery County, PA when they saw a silver Cadillac cross the center dotted line dividing the two westbound lanes of travel. After seeing this happen at least once, they activated the dash cam on their police car. The dash cam showed that the Cadillac traveled approximately a couple hundred yards and crossed over the center line three times during that period. The officer could not remember exactly how many times he had seen the Cadillac cross the line in total. Due to the failure of the Cadillac to maintain its lane, the troopers activated their lights and sirens and pulled the car over.

After approaching the vehicle, the troopers smelled the odor of marijuana coming from the car and observed numerous air fresheners. They also claimed that the defendant, who was in the driver’s seat, was sweating and seemed nervous. Therefore, they ordered him out of the car. They then asked if they could search the car, and the defendant told them that they could. One of the troopers found a gun in the center console as well as other drug paraphernalia in the vehicle. The defendant passed out.

Gun Charges 

The troopers charged the defendant with various firearms and drug offenses, including Persons Not to Possess a Firearm (VUFA 6105), Firearms not to be Carried Without a License (VUFA 6106), Drug Paraphernalia, and Roadways Laned for Traffic.

The defendant filed a motion to suppress, arguing that the police officers did not have probable cause to stop him and therefore the search was the fruit of the poisonous tree from the unlawful stop. The trial court denied the  motion to suppress, finding that police had probable cause to stop the defendant for a potential violation of 75 Pa.C.S. Sec. 3309(1) of the Motor Vehicle Code.

That section provides that “A vehicle shall be driven as nearly as practicable entirely within a single lane of travel and shall not be moved from the lane until the driver has first ascertained that the movement can be made safely.”

Because a violation of this section requires no further investigation, police must have probable cause to make a stop instead of mere reasonable suspicion. The trial court, however, held that the officers had probable cause because the vehicle had crossed the line at least four times in a relatively short period of time without any obvious explanation such as objects in the road or other hazards.

The Superior Court Appeal

After denying the motion to suppress, the court found the defendant guilty and sentenced him to 5-10 years’ incarceration. The defendant appealed to the Pennsylvania Superior Court, and the Superior Court affirmed the conviction. The court recognized that there have been inconsistent rulings on how police officers should interpret the statute relating to remaining in one lane of travel. For example, in Commonwealth v. Gleason, the Pennsylvania Supreme Court held that police did not have probable cause for a stop after seeing a motorist’s tire cross the line two times on only two occasions over a distance of approximately one quarter mile. At the same time, in Commonwealth v. Anderson, the Superior Court upheld the denial of a motion to suppress where the defendant’s vehicle straddled a double yellow line for two blocks and then stopped for an inordinate and inexplicable amount of time without being prompted to do so by traffic signs.

Despite this case seeming to be more like Commonwealth v. Gleason, the Superior Court concluded that crossing the line on at least four occasions over a short period of time provided the officers with probable cause and justified the stop. Therefore, the court upheld the denial of the motion to suppress and the defendant’s conviction. At the same time, it urged the legislature to clarify the statute so that police have additional guidance on what exactly the somewhat-vague statute requires prior to a stop. Even after this case, it likely remains the law in Pennsylvania that briefly crossing into the adjoining lane for a moment or two on one or two occasions will not support a stop, but more than that could provide police with probable cause. This statute, unfortunately, is ripe for abuse because it is very easy for a police officer to claim that a defendant left the lane of travel a couple of times, and it is almost impossible for a defendant to prove otherwise. Fortunately, many officers are now wearing body cameras or have vehicles equipped with dash cams, and this makes it more difficult for officers to fabricate the reasons for a stop.

Facing criminal charges? We can help.

Criminal Defense Attorneys

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 successfully obtained full acquittals and successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, Aggravated Assault, 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.