Philadelphia Criminal Defense Blog

Zak Goldstein 10/4/20 Zak Goldstein 10/4/20

PA Superior Court: Police Can Stop You If You Don't Use Turn Signal To Switch Lanes

The Superior Court has decided the case of Commonwealth v. Gurung, holding that the police may legally stop you if you fail to use your turn signal when you switch lanes. This case is another example of how police can stop you while driving for an assortment of reasons. Therefore, individuals should take great caution while driving because even the slightest slip up can result in you being arrested and facing criminal charges.

Commonwealth v. Gurung

The Pennsylvania State Police (“PSP”) barracks located in Erie, Pennsylvania received a phone call from a local casino stating that the defendant and two others were heavily intoxicated and had just recently left their premises. The caller gave a description of the defendant’s vehicle to the police. A short time later, a PSP trooper spotted the defendant’s vehicle and followed it on Interstate 90. The trooper stated that he saw the defendant fail to activate his turn signal when changing lanes and moving onto an off-ramp. He also said that the defendant moved from the left lane to the right lane without a turn signal and then moved from the center lane to the right lane without using his turn signal. Notably, the defendant never drove in an unsafe manner.

The trooper then stopped the defendant’s car. It was unclear if he performed any field sobriety tests on the defendant. Nonetheless, the defendant ended up charged with DUI along with the summary offenses of Turning Movements and Required Signals, Careless Driving, and Unlawful Activities. The defendant then filed a motion to suppress. At the suppression hearing, the above facts were established by the Commonwealth. Additionally, the trooper testified that he believed he had probable cause to stop the defendant because he did not use his turn signal when he changed lanes. He further testified that he believed the defendant’s failure to use his turn signal while changing lanes violated 75 Pa. C.S.A. § 3334. The trooper further testified that his failure to use his turn signal while switching lanes was the only reason why he stopped the defendant.

At the conclusion of the hearing, the defendant argued that the language of § 3334 does not require drivers to activate a turn signal when changing lanes of traffic. Specifically, the defendant argued that § 3334(b) was the controlling subsection which omits any requirement to use a turn signal when switching lanes. The suppression court agreed and found that the Commonwealth failed to establish that the trooper had probable cause to stop the defendant and thus granted his motion to suppress. The Commonwealth then filed a timely appeal.

Can the Police Stop You Just For Failing to Signal in PA?

§ 3334 provides:

(a) General rule.--Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.

(b) Signals on turning and starting.--At speeds of less than 35 miles per hour, an appropriate signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning. The signal shall be given during not less than the last 300 feet at speeds in excess of 35 miles per hour. The signal shall also be given prior to entry of the vehicle into the traffic stream from a parked position.

(c) Limitations on use of certain signals.--The signals required on vehicles by section 3335(b) (relating to signals by hand and arm or signal lamps) shall not be flashed on one side only on a disabled vehicle, flashed as a courtesy or “do pass” signal to operators of other vehicles approaching from the rear, nor be flashed on one side only of a parked vehicle except as may be necessary for compliance with this section.

(d) Discontinuing turn signals.--Turn signals shall be discontinued immediately after completing the turn or movement from one traffic lane to another traffic lane.

The Superior Court’s Decision

The Superior Court reversed the lower court’s order granting the motion to suppress. In making its decision, the Superior Court reviewed the language of § 3334. The Superior Court found that the plain language of § 3334(a) provides that “no person shall…move from one traffic lane to another…unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.” As stated above, the defendant argued that § 3334(b) was the controlling subsection. However, the Superior Court rejected this argument because if they adopted his position it would “read[] the phrase ‘move from one traffic lane to another’ out of subsection 3334(a). That we cannot do.” Specifically, the Superior Court stated that you must read the entire statute together and not just focus on one specific subsection. Consequently, the order granting the defendant’s motion to suppress is reversed and the Commonwealth will be able to use whatever evidence that was suppressed by the lower court against him at trial.

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Zak Goldstein 9/25/20 Zak Goldstein 9/25/20

PA Superior Court: Odor of Marijuana No Longer Provides Automatic Probable Cause for Search of Car

Philadelphia Criminal Defense Lawyer Zak Goldstein

Can the police search your car if they smell marijuana in Pennsylvania?

The Superior Court has decided the case of Commonwealth v. Barr, holding that the smell of marijuana alone does not always give police officers probable cause to search a car. This decision is very significant because police officers often argue that they had probable cause to search someone’s property (usually an automobile) because they smelled marijuana. Further, suppression courts often treated the smell of marijuana as an automatic basis for upholding the legality of a search. That all changed when Pennsylvania legalized medical marijuana. Now, because the odor of marijuana could come from legally-possessed marijuana, police may not search a car solely because they detect an odor of marijuana. Instead, they must have specific reasons giving rise to probable cause to believe that a crime is ongoing or that they will find evidence of a crime if they search the car.

Commonwealth v. Barr

Two Pennsylvania State Police (“PSP”) troopers were on routine patrol in a marked police unit in Allentown, Pennsylvania. The troopers observed a silver Chrysler 300 making a U-Turn and they decided to follow the car. While following the car, they noticed the car was driving at a “fast rate of speed.” They then noticed that the car failed to stop at the solid white stop line on a road near the stop sign. Consequently, the troopers stopped the car for this alleged motor vehicle violation. After the troopers activated their lights and siren, the car pulled over immediately.

Upon approaching the car, one of the troopers immediately noticed the smell of burnt marijuana. The defendant’s wife was driving the vehicle, while the defendant was seated in the front passenger seat and his co-defendant was sitting in the backseat. The troopers then asked the defendant’s wife to exit the vehicle so they could interview her and confirm that she was not under the influence. A short time later, one of the troopers got into an argument with the defendant. Eventually backup officers arrived and the defendant exited the vehicle. The argument ended after the defendant exited the vehicle.

After he exited the vehicle, the troopers advised the defendant that they would search the automobile. The defendant then presented the trooper with a medical marijuana identification card that allows him to possess and ingest medical marijuana pursuant to this license. Despite the defendant showing the troopers his card, they still searched the car due to the odor of marijuana. The troopers found a “marijuana shake,” a sealed Ziploc plastic bag containing marijuana, baggies, and a loaded handgun. The defendant was subsequently arrested and charged with Persons Not to Possess a Firearm, Possession of Firearm Without a License, and Possession of a Small Amount of Marijuana.

Prior to trial, the defendant filed a motion to suppress. At the suppression hearing, the above facts were placed on the record. Additionally, the defendant’s doctor testified at this hearing. He testified that the defendant had an underlying health issue that qualified him for a medical marijuana card. Further, he testified that that there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana that is purchased on the streets. Also, he testified that there is no difference in odor when one smokes medical marijuana utilizing a vaping pen and the odor of smoking marijuana without a vaping pen. Finally, the fact that 143,000 patients in Pennsylvania are legally allowed to obtain, possess, and ingest medical marijuana was also placed on the record.

At the conclusion of the hearing, the trial court granted the defendant’s motion to suppress. In its decision, the trial court did not consider the smell of marijuana in its analysis as to whether the troopers had probable cause to search the automobile. The Commonwealth then filed a timely appeal. On appeal, they argued that the trial court erred when they granted the defendant’s motion to suppress because the officers had probable cause to search the automobile because the troopers smelled marijuana.

The Superior Court’s Decision

The Superior Court affirmed the lower court’s decision. In in its decision, the Superior Court first reviewed prior decisions that addressed this issue. The Superior Court stated that contrary to the Commonwealth’s position, there never was a per se rule that the odor of marijuana was always sufficient to establish probable cause. Next, the Court examined the realities of the Medical Marijuana Act. As a result of its passage, hundreds of thousands of law-abiding Pennsylvanians could potentially emit an odor of marijuana. As such, the argument that an individual is committing a crime solely on the basis of the smell marijuana was severely weakened because of the Medical Marijuana Act. The Court went on to say that if they allowed a per se rule that allowed officers to search one’s person or property solely because they smelled marijuana, it would subject law-abiding citizens to impermissible intrusions.

However, the Superior Court did state that the smell of marijuana can play a factor to determine whether the police had probable cause. Marijuana is still technically illegal unless an individual has been granted permission to possess it under the Medical Marijuana Act. Therefore, the lower court was wrong to not give it any weight when making its decision as to whether the officers had probable cause to search the automobile. Consequently, the defendant’s case will be remanded back to the lower court to review the record again to determine whether the troopers had probable cause to conduct their search. The court may give the odor of marijuana some weight, but the odor of marijuana alone no longer justifies a search.

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Zak Goldstein 9/19/20 Zak Goldstein 9/19/20

PA Superior Court: Speedy Trial Rule Requires Commonwealth to Make Reasonable Efforts to Extradite Defendant

The Superior Court has decided the case of Commonwealth v. Morgan, holding that PA’s speedy trial rule, Rule 600, applies to defendants who are incarcerated in other states and the Commonwealth must be diligent in extraditing them back to Pennsylvania to stand trial. The Commonwealth may not simply wait until a defendant finishes serving a lengthy sentence in a another state before proceeding on criminal charges in Pennsylvania. Morgan holds that the Commonwealth must take active steps to bring the defendant to trial even when he is incarcerated in a different state.

Commonwealth v. Morgan

In October 2008, while serving a sentence in Bucks County, the defendant absconded from a work release program. Shortly thereafter, the Bucks County Sherriff’s Office (“BCSO”) filed a written complaint charging the defendant with escape, and a magisterial district judge issued a warrant for his arrest. About a week later, the BCSO received notice that the defendant was being held on homicide and firearm charges in the state of Georgia.

A preliminary hearing was held in Bucks County, in absentia, and the defendant was declared a fugitive. The BCSO sent a fax to Georgia authorities requesting that a detainer be placed on the defendant and that extradition proceedings be commenced. An official in Richmond County, Georgia responded stating that the defendant waived extradition. However, the official advised the BCSO that if the defendant was convicted and sent to jail for his Georgia charges, they would need to secure a separate detainer with the Georgia Department of Corrections and then restart the extradition process.

In February 2010, the defendant was found guilty of involuntary manslaughter and possession of a firearm during the commission of a crime in Georgia. He was sentenced to a term of ten to twenty years’ incarceration in a Georgia prison. After his conviction, the Georgia authorities did not reach out to the BCSO or any Commonwealth employee. However, no BCSO or Commonwealth agent contacted the Georgia authorities for almost two years after his conviction.

In September 2012, the BCSO sent an email to the Richmond County’s Sherriff’s office requesting an update on the defendant’s case. The BCSO received a response that same day stating that he was now housed in a prison in Valdosta, Georgia and that in order to have a detainer lodged against him they would need to reach out to the Georgia Department of Corrections. The BCSO subsequently responded to this email and said that they would like a detainer lodged against him. However, the BCSO did not actually contact the Georgia Department of Corrections. Based on the record, the BCSO did not take any further action on the defendant’s case for six years.

In June 2018, the BCSO faxed a detainer request to the Georgia Department of Corrections. The Georgia Department of Corrections was able to confirm receipt of their email and then lodged a detainer against the defendant. By this point, the defendant had been incarcerated in Georgia for nearly a decade and had been scheduled to be released on October 15, 2018. The BCSO took him into custody on October 25, 2018.

Back in Pennsylvania, the defendant filed an omnibus motion arguing that his case should be dismissed pursuant to Rule 600(a)(2)(A). Specifically, he argued that the Commonwealth had failed to exercise due diligence in trying to bring him to trial. Following a hearing, the trial court denied his motion. In April 2019, the defendant then elected to have a bench trial where he was found guilty of escape. He was then sentenced three and a half years to seven years’ incarceration. The defendant then filed a timely appeal.

What is Rule 600?

Rule 600(A) states that a defendant must be brought to trial within 365 days of the filing of the criminal complaint and if he is not then the case should be dismissed. The purpose of Rule 600 is to protect a defendant’s speedy trial rights, while also protecting society’s right to effective prosecution of criminal cases. If a defendant is not tried within 365 days of the filing of the complaint, Rule 600 requires that the court determine whether the Commonwealth exercised due diligence and whether the circumstances that caused the delay of a defendant’s trial were beyond the Commonwealth’s control.

For the purposes of computing time under Rule 600, the court will determine whether or not the Commonwealth was duly diligent in litigating its case against the defendant. In other words, when the Commonwealth causes the delay (i.e. discovery is outstanding or they have not been able to contact a necessary witness) that time ordinarily goes against the Commonwealth. However, if the defense causes the delay, then that time is not factored in for purposes of 600. If the Commonwealth violates Rule 600, then the Court should dismiss the case with prejudice. Rule 600 is generally enforced more strictly in Philadelphia than in the surrounding counties, but it does apply throughout the state.

The Superior Court’s Decision

The Superior Court reversed the defendant’s conviction because they found that the Commonwealth was not duly diligent in bringing the defendant to trial. The Commonwealth filed its criminal complaint against the defendant in October 2018. As such, the Commonwealth was required to bring the defendant to trial within 365 days of that filing. However, the defendant was not brought to trial until April 2019, which was more than ten years after the expiration of the defendant’s mechanical run date under Rule 600.

The Superior Court found that it did not matter that the defendant was incarcerated in another state. It does not appear that Georgia would have extradited the defendant while his homicide charges were pending, and thus this time would not have counted against the Commonwealth. However, the Court found that there was no evidence that Georgia would not have cooperated and sent the defendant to Pennsylvania after he was convicted. Consequently, the Superior Court found that the Commonwealth did not act with due diligence because they waited more than eight years after he was convicted to reinitiate extradition proceedings against the defendant. Thus, the Commonwealth does not necessarily have to take steps to move for extradition while charge s are pending in another state, but once a defendant has been sentenced, the Commonwealth must try to extradite the defendant. Therefore, the defendant’s conviction is vacated and he will be released from prison.

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Zak Goldstein 9/12/20 Zak Goldstein 9/12/20

PA Superior Court: You Can't Suppress an Assault Even If Police Entered Your House Illegally

The Superior Court has decided the case of Commonwealth v. Schneider, holding that a defendant cannot suppress testimony regarding his assault on officers even if he can prove that the police illegally entered his home prior to the assault taking place inside the home. Although the physical contraband that police found as a result of the illegal search should have been suppressed, the court ruled that the police could still testify regarding the defendant’s physical actions despite the illegal entry.

Commonwealth v. Schneider

A Crisis Unit worker spoke with a local police officer and expressed an interest in having the officer accompany him to conduct a mental welfare check on the defendant. The worker wanted the officer to accompany him for the check out of safety concerns. According to the Crisis Unit worker, the defendant said that he believed that he was Jesus Christ, Thor, and Jim Carrey. It is worth noting, that at the time of the request, there were no allegations that the defendant was armed; was in danger of harming himself or others; was malnourished or lacked utilities. The police officer and the Crisis Unit Officer arrived at the defendant’s home, and the police officer knocked on the defendant’s door. The defendant answered and at first, the interaction was fine. However, the defendant then told the officer to take off his “peashooter” because guns kill people. The defendant then tried to close his door, but the officer placed his foot in the doorway to prevent the defendant from closing it, and the officer then went into the defendant’s home.

The officer then had the defendant sit in a chair. The defendant began to chant incoherent things, and his eyes blinked rapidly. Then, unprovoked, the defendant struck the officer. Eventually, the officer and the defendant began to struggle. The officer called for backup, and the police tasered and pepper sprayed the defendant. After several minutes, the police put the defendant in handcuffs and then escorted him into a police vehicle. After the police arrested the defendant and removed him from his home, an officer re-entered the house and saw marijuana and a pipe in plain view. Prosecutors charged the defendant with aggravated assault, simple assault, resisting arrest, possession of a controlled substance, and possession of drug paraphernalia.

Prior to his trial, the defendant filed a motion to suppress the drugs, paraphernalia, and the officers’ testimony about his alleged actions when the police entered his home. The defendant argued that the police had illegally entered his house without a warrant, and therefore all of the evidence against him was the fruit of unconstitutional action by the police and should be suppressed. At the suppression hearing, the officers testified to the above assertions. Additionally, the officer testified that he believed the defendant was a threat to himself and others.

At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. The trial court stated that because the officer reasonably believed that the defendant needed mental health assistance, the warrantless entry of his home was justified under the Community Caretaking Doctrine. The defendant then proceeded to a jury trial where he was convicted of the above charges and sentenced to five years’ probation. The defendant then filed a timely appeal. The defendant raised several issues on appeal, but for purposes of this blog only the issue of whether his motion to suppress was wrongly decided will be addressed.

What is the Community Caretaking Doctrine?

The Community Caretaking Doctrine is an exception to the Fourth Amendment’s warrant requirement. This doctrine permits a warrantless entry into someone’s home if the purpose of the officer’s entry was to render aid or assistance, rather than the investigation of criminal activity. In order for a seizure to be justified under this exception, the officer must be able to point to specific, objective, and articulable facts which would reasonably suggest to an experience officer that assistance was needed. Additionally, the police action must be independent from the detection, investigation, and acquisition of criminal evidence. Finally, the action taken by police must be tailored to rendering assistance or mitigating the peril. Once assistance has been provided or the peril mitigated, then further police action will be evaluated under traditional Fourth Amendment jurisprudence.

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision denying the defendant’s motion to suppress and ordered that he receive a new trial. The Superior Court found that prior to entering the defendant’s home, there was not sufficient evidence for the officer to reasonably believe that the defendant required immediate assistance. The defendant’s odd behavior was not enough to justify a warrantless entry into his home. Further, the Superior Court emphasized that none of the defendant’s actions were threatening, combative, or violent prior to the officer entering his home. Additionally, there was no evidence that the defendant had a weapon, was malnourished, and did not look like he was hurt or intended to hurt anyone. In other words, there was no evidence to suggest that the defendant needed any form of assistance.

The Superior Court opined that the officer entered the defendant’s home to conduct additional investigation of the defendant’s mental health. This is not constitutionally permissible. According to the Superior Court, an officer cannot enter an individual’s home without a warrant to investigate if that person needs assistance. At the same time, however, the Superior Court ruled that the assault could not be suppressed. In other words, the physical evidence and contraband was suppressed because the officers should not have been in the home. But the assault on the officers itself could not be suppressed regardless of the fact that the police entered the home illegally. Nonetheless, the testimony regarding the contraband could have contributed to the jury convicting the defendant of the assault-related charges, and so the defendant will receive a new trial on all of the charges without the suppressed evidence.

This opinion is good and bad for privacy rights; it is good in that the court continued to enforce limits on the ability of police to enter a private home without a warrant, but it is bad in that the court still allowed prosecutors to proceed on resisting arrest and assault charges that stemmed from the officers’ decision to illegally invade the defendant’s home without a search warrant or arrest warrant.