Criminal defense lawyer Zak T. Goldstein, Esquire, recently won a motion to suppress a significant quantity of fentanyl, heroin, and pills in a case in the Philadelphia Court of Common Pleas. In Commonwealth v. B.R., police alleged that they responded to a 911 call for a report of a person screaming. When they arrived on the scene, they did not see a disturbance or hear anyone screaming, but they did observe the defendant’s car double parked in the middle of the road with the engine running. The defendant approached the police, and the police asked him if he knew to whom the car belonged. The defendant responded that it was his car.

The police walked over to the vehicle, and they claimed that they were able to smell marijuana coming from the car. They ran the defendant’s identification and determined that the defendant had a bench warrant from missing court in another case. They therefore placed him under arrest and put him in the back of the patrol car. They also claimed that while they were arresting him, he began cursing at them and saying things about guns and knives being in the car. The police asked if they could search the car, and the defendant purportedly told them that they could search it. The officers then performed a “consent search” and recovered a significant quantity of heroin, fentanyl, and oxycodone pills. The police charged B.R. with Possession with the Intent to Deliver (“PWID”) and related charges.

B.R. retained Attorney Goldstein for his case, and after reviewing the matter, Attorney Goldstein immediately filed a motion to suppress the drugs that were recovered from the car. Attorney Goldstein alleged that the drugs were illegally recovered by the police because the police failed to obtain a search warrant for the car, the consent obtained from B.R. was invalid, and the police had failed to give B.R. his Miranda warnings prior to interrogating him.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress at which the officers testified to many of the above allegations. The Commonwealth based its arguments as to the legality of the search on the officers’ claims that B.R. had in fact consented to a search of the vehicle, leading to the recovery of the drugs. Under the Pennsylvania and United States Constitution, however, the Commonwealth bears the burden of establishing that a suspect has voluntarily, knowingly, and intelligent consented to a search before the police may conduct such a search. As the police did not obtain a search warrant and there was no real claim that this search was performed out of a concern for officer safety, the Commonwealth attempted to show that B.R. had consented.  

The trial court rejected the Commonwealth’s argument. First, following Attorney Goldstein’s cross-examination of the officer, the court found that the officer’s testimony was not credible because it did not make any sense that the defendant would consent to a search of his car when the car contained a large amount of drugs. The officer also struggled to recall details regarding the search or exactly what the defendant had supposedly said when giving consent. Second, the court found that the defendant did not voluntarily give consent to the search. Under Pennsylvania law, the consent to a search must be the product of an essentially free and unconstrained choice. It may not be the result of duress or coercion, express or implied, or a will overborne. A court must look at the totality of the circumstances in determining whether consent was freely given. Here, the police had arrested the defendant, failed to give him Miranda warnings, failed to tell him that he had the right to refuse the search, and failed to comply with their own directives which required them to consult with a supervisor and have the defendant sign a consent to search form prior to conducting the search of the vehicle.

Accordingly, the court found the officers’ testimony not credible and that the defendant had not actually consented.  The court granted Attorney Goldstein’s motion to suppress, and the Commonwealth was forced to withdraw the charges. On paper, this case looked difficult – the car smelled like marijuana, the defendant had an arrest warrant, the police recovered a lot of drugs, and the defendant had supposedly consented to the search, thereby eliminating the need for a search warrant. Through cross-examination and the use of the case law on consent searches, which is often helpful to the defense, Attorney Goldstein was able to convince the trial court that the police had violated B.R.’s constitutional rights and win the case.

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