Philadelphia Criminal Defense Blog

Zak Goldstein 2/6/20 Zak Goldstein 2/6/20

PA Superior Court: Ordering Driver to Roll Window Down Is A Stop

Philadelphia Criminal Lawyer Zak Goldstein

Can the police make you roll down your car windows?

For years, Pennsylvania appellate courts have had some difficulty in defining the point at which a person is seized by police for Fourth Amendment purposes, finding in some cases that even where police clearly restrict a person’s movement, they may not be stopped. More recently, however, the Supreme and Superior Courts of Pennsylvania have issued a number of important cases which reflect the obvious fact that when the police tell you what to do, you are not free to leave. The Superior Court has now decided the case of Commonwealth v. Powell, holding that when police officers surround a legally parked vehicle and order the driver to roll down his window, the interaction is an investigatory detention (a stop) and not a mere encounter. This is important because in order to win a motion to suppress, a defendant has to show not only that the police acted without reasonable suspicion or probable cause, but also that they actually seized the defendant in some way. Police are free to walk up to any person and initiate a conversation without any level of suspicion. But once they start issuing commands, the situation changes dramatically and police are required to have reasonable suspicion or probable cause.

Commonwealth v. Powell

On April 27, 2018, an Edinboro, PA Police Officer was on duty in an unmarked police car along with a sheriff’s deputy. Both men were in uniform. At approximately 11:37 PM, the officer noticed a truck parked in the small public parking lot of the Lakeside Commons shopping mall. There were no stores open at the time. The truck’s engine was running, and the truck was legally parked. The officer testified that he normally patrols the lot, and in the past he has observed criminal activity in the lot such as drinking, drugs, and lewdness.

The officer testified that he pulled his vehicle directly behind the passenger side of the truck and he did not activate his lights. The officer and the deputy exited their vehicle and approached the defendant’s driver side and passenger side windows respectively. Prior to approaching the vehicle, the officer had not received any complaints about the defendant’s vehicle, nor had he observed any bad driving or suspicious behavior. When the officer and the deputy walked up to the defendant’s windows, the windows were closed. The officer observed the defendant in the truck eating food from Taco Bell, and the officer knew that there was a taco bell nearby.

The officer then ordered the defendant to roll his window down and observed the defendant with glassy eyes and a strong smell of alcohol coming from his person. The officer then asked the defendant for identification. Shortly after this request, the officer asked that the defendant perform sobriety tests. The defendant failed these tests and he was subsequently arrested for DUI.

The defendant then filed a motion to suppress all evidence that was obtained after his illegal detention. At his motion to suppress, the above stated facts were presented, and the trial court agreed that the defendant was illegally detained and consequently granted his motion. Specifically, the court found that no reasonable person would have believed that he was free to leave the encounter with the police. The Commonwealth then filed a timely interlocutory appeal. On appeal, the Commonwealth argued that the interaction between the defendant and the officers was just a mere encounter and thus he was not illegally seized.

What is a Mere Encounter?

When a defendant argues a motion to suppress, the Commonwealth will frequently suggest that the motion should be denied because the interaction between the defendant and the police was just a “mere encounter.” Mere encounters are considered to be routine interactions between citizens and police. They do not require any level of suspicion and do not involve any official compulsion by the police. Additionally, a mere encounter is considered consensual, and thus a citizen is allowed to terminate this interaction whenever he or she so chooses. It is important to note that just because an officer asks for identification, it does not necessarily escalate a mere encounter into an investigatory detention. The crucial factor in determining whether the mere encounter has evolved into an investigatory stop (or an arrest) is whether the individual would have reasonably felt free to terminate the interaction between himself and the police. In other words, if a reasonable person would not have felt free to end the encounter, then it is not a mere encounter. The reason this significant is because the police need reasonable articulable suspicion that a defendant is engaged in criminal activity before they can stop them for an investigatory detention.

As such, when a defense attorney litigates a motion to suppress, they are often trying to elicit facts to suggest that a reasonable person would not have felt free to leave. Often times this involves soliciting facts such as: the placement of the officers, what they were wearing, whether their weapons were visible, how many officers were involved, the tone of questioning, whether they touched the defendant, whether he was in handcuffs, etc. At the conclusion of the hearing, the defense attorney will then argue that based on the facts of the particular case this was not a mere encounter, bur rather an investigatory detention and therefore the police needed reasonable suspicion to stop him in the first place.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. In its opinion, the trial court found several factors that escalated the interaction from a mere encounter to an investigatory detention. Specifically, the Superior Court found that the officers positioning themselves on both sides of the defendant’s vehicle and ordering him to roll his window down showed that this was not a mere encounter. Because the defendant was legally parked and not doing anything illegal, the officers lacked reasonable suspicion to stop him. Therefore, the Commonwealth will not able to use any of the evidence it obtained after illegally stopping the defendant in his trial, and the DUI charges should be dismissed.

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Read the Superior Court’s Opinion

Zak Goldstein 1/26/20 Zak Goldstein 1/26/20

PA Superior Court: Search of Cell Phone After Expiration of Search Warrant Violates Fourth Amendment

Zak Goldstein - Philadelphia Criminal Defense Attorney

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bowens, holding that the police may not search a cell phone after the warrant authorizing the search has expired even if the police initially had technical difficulties with the phone and did not view any data that would have been generated after the warrant expired. This is an important decision because it shows that PA appellate courts continue to reject prosecutors’ attempts to create a good faith exception to the exclusionary rule in Pennsylvania.

Commonwealth v. Bowens

On October 12, 2016, a Pennsylvania State Trooper observed a vehicle abruptly change lanes from the passing lane to the right lane, nearly hitting another vehicle. After activating the emergency lights on his vehicle, the trooper observed the driver of the vehicle reaching over towards the glove box as he pulled the car onto the shoulder of the road. The defendant was sitting in the front passenger seat. While speaking with the defendant and the driver, the trooper noticed that the men seemed nervous. The driver informed the trooper that the car belonged to his girlfriend in New Jersey. He also stated that he and the defendant were travelling from York to Lancaster and then to Chester and Philadelphia.

While the trooper was speaking with them, another trooper learned that there were arrest warrants outstanding for both men. The trooper then took the men into custody and took possession of their cell phones. The trooper then set the defendant’s phone to airplane mode and placed it inside an aluminum foil-lined pouch for safekeeping. The trooper impounded the vehicle and conducted an inventory search. The glove box was locked, and both the defendant and the driver denied having the key. They also denied knowing anything about the contents of the glove box. The trooper then contacted the driver’s girlfriend who gave him permission to search the glove box. She also stated that the driver had the key.

The trooper obtained a search warrant to search the glove box. Inside the glove box, he found heroin, drug paraphernalia, and two firearms. The trooper then obtained a search warrant for the cell phones and provided them to a detective with the Northern York County Regional Police Department who was a forensic expert in the field of cell phone data extraction. The search warrant expired on October 16, 2016 at 10:45 AM. On October 20, 2016, the detective notified the Trooper that he had completed the cell phone extraction, which revealed text messages between the defendant and his companion using language common to the illicit drug trade. The defendant’s phone also contained photographs of cash and of a handgun similar to the one found in the glove box.

The defendant was subsequently charged with Possession with the Intent to Deliver (“PWID”), conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried without a License, and Possession of Drug Paraphernalia. The defendant then filed a motion to suppress. At the motion to suppress hearing, the trial court denied his motion in part and granted it in part. The defendant argued that the contents of the defendant’s phone search should be suppressed because his phone had been searched after the search warrant had expired. However, the trial court held that because the phone had been in airplane mode, there were no “staleness concerns that would be present in other factual scenarios where the probable cause determination would have expired.” Further, the trial court found that delay in searching the phone “was a product of coordination delays between the police possessing the software and the expertise to do the job.” The court did hold that any information that was sent to the phone after the search warrant had expired would be inadmissible at trial.

The defendant then proceeded to a jury trial where he was found guilty of all the charges, and he was sentenced to 15 years 9 months’ to 31 years 6 months’ incarceration. The defendant then filed a timely post-sentence motion. After the trial court denied the motion, he filed his appeal. On appeal, the defendant raised several issues. However, for purposes of this blog, only the issue of whether the evidence was sufficient to convict the defendant of the drug and firearms offenses and whether the trial court improperly denied his motion to suppress the data that was found on his phone.

Do Search Warrants Expire in Pennsylvania?

Yes. Rule 205(A)(4) of the Pennsylvania Rules of Criminal Procedure states that a search warrant must be executed within a specific period of time, not to exceed two days from the time of the issuance or if the warrant is issued for a prospective event, then only after the event has occurred. There are not exceptions to Rule 205(A)(4) and the failure to adhere to this rule amounts to a “federal constitution violation.”

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision to deny the motion to suppress. The Court found that the trial court committed reversible error when it denied the defendant’s motion to suppress. The trial court found that because the detective searched the phone past the expiration date of the search warrant, this amounted to warrantless search. Additionally, the Superior Court found that this error was not harmless, because the evidence from the cell phone extraction was the only evidence that the Commonwealth presented to support its conspiracy charge.

Additionally, the Superior Court found that there was not enough evidence to convict the defendant of possessing the firearms or the drugs. The Superior Court reasoned that the Commonwealth did not prove that the defendant had constructive possession of the contraband at the time of the traffic stop. The Superior Court stated that the defendant did not have access to the key to the glove compartment because it was in possession of his co-defendant and there was no evidence presented that he had control over the contraband. Rather, the only thing the Commonwealth proved was that the defendant was merely present in the vehicle at the time of the traffic stop.

Consequently, the defendant’s sentence was vacated. His convictions for PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and Firearms Not to be Carried Without a License are also vacated and the Commonwealth cannot retry him on those charges because the evidence was not sufficient to convict him of them. Therefore, the only charge remaining against him is the conspiracy charge and he will get a new trial on that charge.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 1/25/20 Zak Goldstein 1/25/20

PA Supreme Court: Defendant Seized Under Fourth Amendment When Police Officer Has His ID

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Cost, holding that the defendant was seized without reasonable suspicion or probable cause when a police officer asked for the defendant’s identification and then retained possession of it while continuing to question the defendant. Because no person would feel free to terminate the police encounter and leave while the police officer still has that person’s identification, the police were required to have reasonable suspicion of ongoing criminal activity in order to support the seizure. This case recognizes the basic fact that when police ask for a defendant’s identification and then hold onto it while continuing the conversation, they have usually seized a defendant for Fourth Amendment purposes.

The Facts of Cost

In Cost, the defendant was arrested for various violations of the uniform firearms act in Philadelphia and filed a motion to suppress the gun which police had recovered. At the hearing on the motion to suppress, a Philadelphia Police Officer testified that he had been patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 pm. His partner saw the defendant and three other men in an alley. They suspected, without seeing anything actually illegal, that something could be going on back there. Therefore, they circled the block, stopped in front of the alleyway, and began to conduct an investigation. They did not activate the emergency lights or sirens on the police vehicle.

The officers got out of the car and walked over to the individuals. They asked the individuals if any of them lived back there and then asked if they had any ID. They all handed ID cards of some kind to the officers. The officer then continued to question them while holding onto the ID about whether they had anything on them that he needed to know about. At that point, the defendant began to take off a backpack. The officer asked him if there was anything in the backpack that he needed to know about, and the defendant responded that there was a gun in the backpack. This promptly led to the recovery of the gun and the arrest of the defendant for firearms charges. The officer testified that the defendant’s path was unrestricted and he could have walked away at any time and that the whole encounter took less than a minute. He never told the four men that they were free to leave. At some point, he ran their names through NCIC, but nothing came back. He also wrote down some information from the IDs on a notepad.

The trial court granted the motion to suppress. The court found that the officer had not seen anything illegal prior to asking for ID, and once the officer asked for the ID and then held onto it while continuing to question the men, the men were not free to leave. Accordingly, the officer conducted an illegal seizure because he did not have reasonable suspicion to detain them. This required the suppression of the gun. The Commonwealth appealed to the Superior Court, and the Superior Court reversed the decision suppressing the gun. The defendant then appealed to the Supreme Court, and the Supreme Court accepted the appeal.

The Supreme Court’s Ruling on the Motion to Suppress the Gun

The Supreme Court reversed the Superior Court and reinstated the trial court’s ruling. The Supreme Court found that merely asking a person for their identification does not automatically turn a mere encounter into a Terry stop that requires reasonable suspicion or probable cause. However, the Court recognized that once the person has produced the ID, the person would never feel free to leave without their ID while the officer is holding onto it. Thus, if the officer does not return the identification and instead continues to ask questions or conduct an investigation while holding a suspect’s property, the officer has usually effected a seizure which requires some level of suspicion such as reasonable suspicion or probable cause. Here, the officer had no seen the defendant do anything illegal whatsoever, and the officer seized him by holding onto his identification while continuing to question him. Therefore, the trial court properly suppressed the gun. This is a good case for privacy rights as it recognizes that a person who has been asked for their identification and has turned over that identification is not going to simply feel free to walk away without their own ID. This continues a trend of relatively progressive Fourth Amendment decisions from the Pennsylvania Supreme Court which have started to reintroduce a respect for privacy rights into the criminal justice system.

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Zak Goldstein 1/16/20 Zak Goldstein 1/16/20

Third Circuit Court of Appeals: Mistake of Age is Not a Defense to Charges of Transporting a Minor to Engage in Prostitution

The United States Third Circuit Court of Appeals has decided the case of United States v. Tyson, holding that a mistake-of-age defense is not applicable to the charges of transporting a minor to engage in prostitution or producing child pornography. The decision also holds that knowledge of the victim’s age is not required to secure convictions under either of these statutes. This decision is not surprising given that the majority of circuit courts have held that mistake of age or knowledge that a victim is underage is a defense to the aforementioned charges.

United States v. Tyson

In August 2017, the defendant contacted a seventeen-year-old female on Facebook to engage her in prostitution. After communicating for several days via Facebook and text messages, the defendant traveled from Pennsylvania to New York City. The defendant picked up the complainant and her friend and brought them to Harrisburg, Pennsylvania. He then rented several rooms at a hotel in New Cumberland, Pennsylvania between August 15 and August 20, 2017. Phone records reveal that several individuals from Harrisburg contacted the complainant to engage in commercial sexual activity. On August 22, 2017, after a relative of the defendant brought the victim to a Quality Inn in New Cumberland, FBI agents and local law enforcement recovered her during a sting operation. Investigators then interviewed her and reviewed her phone. After they reviewed her phone, they found a video of her performing oral sex on the defendant.

On October 18, 2017, the defendant was indicted for knowingly transporting a minor to engage in prostitution and producing child pornography. Before trial, the Government filed a motion in limine to prohibit the defendant from eliciting evidence to establish mistake of age and from asserting mistake of age as an affirmative defense. The District Court granted the motion. The Court reasoned that evidence of mistake of age is irrelevant because the statutes that the defendant was charged under do not require proof of a defendant’s knowledge that the victim was a minor.

After this ruling, the defendant entered into a conditional plea agreement. According to the terms of the plea agreement, Government agreed to recommend to the District Court that the sentences be served concurrently for a total of 180 months’ imprisonment. The agreement also preserved the defendant’s right to appeal the District Court’s order granting the Government’s motion in limine. On December 19, 2018, the District Court sentenced the defendant to 180 months’ imprisonment for each count, to be served concurrently. The defendant then filed a notice of appeal with this court challenging the District Court’s order.

What is a Motion in Limine?

A motion in limine is a motion that can be filed by either the prosecution or the defense. The purpose of this motion is to have the judge make a ruling on a particular piece of evidence or argument that the party intends to make outside the presence of the jury. In criminal trials, it is common for defendants to file these motions to keep out particular pieces of evidence. There are strategic reasons for filing these motions. In jury trials, a defense attorney may not want to be seen objecting to particular pieces of evidence because it can be interpreted by the jury that they are attempting to hide something. As such, motions in limine are useful because a defense attorney is able to pre-emptively “object” to this evidence and keep it out before it is heard by the jury. It also allows both sides to know what evidence will be admissible at trial before the trial starts.

Motions in limine can also be used to preclude a particular party from arguing certain defenses. In the instant case, the Government filed a motion in limine to prevent the defense from arguing mistake of age defense. However, defendants can use motions in limines to prevent the prosecutor from making certain arguments. For example, prosecutors frequently like to argue witness intimidation even when there is no evidence to support this. As such, a defense attorney can file a motion in limine to preclude the prosecutor from making this argument when there is no such evidence to support this claim. This is just one example. Therefore, defense attorneys should anticipate what evidence the prosecutor intends to introduce at trial so they can file motions in limine to keep out harmful evidence and arguments against their clients. In state court, it is relatively uncommon for the prosecution to make motions in limine prior to trial. In federal court, however, prosecutors routinely file motions in limine in an attempt to undercut potential defense arguments. Therefore, it is important if you are facing federal charges to retain an attorney who has the experience to fight these motions.

The Third Circuit’s Ruling

The Third Circuit denied the defendant’s appeal. The Court analyzed the relevant statutes and other appellate decisions that have addressed this issue, including United States Supreme Court decisions. In its analysis, the Third Circuit found that the majority of other circuit court decisions have held that that it is not necessary for a defendant to know that the age of a victim to convict him of either transportation of a minor to engage in prostitution or production of child pornography. The Third Circuit found that by not specifically requiring knowledge of the victim’s age in the statutory language, Congress eliminated an offender’s opportunity to prey on children without consequence by claiming ignorance of the victim’s age. Further, the Third Circuit found that any potential prejudice to defendants was outweighed by the Government’s compelling interest in protecting children. Because knowing a victim’s age is not relevant to convicting a defendant under these statutes, a defendant cannot use the mistake of age defense. Consequently, the defendant will not get a new trial, and he will be forced to serve his sentence.

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