Philadelphia Criminal Defense Blog

Zak Goldstein 12/30/21 Zak Goldstein 12/30/21

PA Supreme Court Agrees: Odor of Marijuana Does Not Provide Probable Cause to Search Vehicle

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Barr, holding that the odor of marijuana alone no longer provides the probable cause necessary for the police to search a motor vehicle. Instead, the police may consider the odor of marijuana as a factor in terms of whether they have probable cause, but they may not search a car solely because it smells like marijuana. The Superior Court had previously reached a similar conclusion, and the Supreme Court has now upheld that decision.

The Facts of Barr

In Barr, a Pennsylvania State Police Trooper was training a newly-hired Trooper. The troopers were on routine patrol in Allentown, PA when they saw a vehicle make a U-turn. The U-turn was not illegal, but the troopers decided to follow the vehicle. The vehicle appeared to be speeding and it was past midnight, so the troopers continued to follow it. Eventually, the vehicle failed to properly stop at a stop sign, so the troopers pulled it over. The troopers approached the vehicle, and as they arrived at the window, they smelled the odor of marijuana. The defendant’s wife was the driver of the vehicle, the defendant was in the front passenger seat, and a third gentleman was in the rear passenger seat. He appeared to be drifting in and out of sleep.

After smelling the odor of burnt marijuana, the troopers directed the driver to get out of the car. The defendant began to argue with the troopers and insist that “no one is getting out of this fucking vehicle.” Backup officers from the Allentown Police Department arrived, and the defendant became more cooperative. The trooper then informed the occupants of the vehicle that he was going to search the vehicle due to the odor of marijuana. The driver and the defendant both provided proof that they had medical marijuana prescriptions to the troopers before the troopers conducted the search. By that time, Pennsylvania had in fact legalized medical marijuana.

The troopers believed that medical marijuana could only be consumed through a vape pen which would not produce an odor, and so they searched the car anyway. In the car, they found marijuana and a gun. They arrested the defendant and charged him with possession as well as violations of the uniform firearms act.

The defendant moved to suppress the evidence. At the suppression hearing, he presented an expert witness who testified that medical marijuana smells the same as illegal marijuana and that green, leafy marijuana can be consumed legally by using a vaping pen. The pen would also produce an odor of marijuana. Accordingly, it would not be possible to tell from the odor alone whether the marijuana was legal or illegal. Because marijuana is now potentially legal in Pennsylvania and because the troopers had no other reason for searching the car, the trial court granted the motion to suppress. The court found that the troopers did not have probable cause for the search.

The Superior Court Appeal

The Commonwealth appealed to the Superior Court. The Superior Court agreed that the odor of marijuana alone does not always justify as search, but it found that the trial court should have considered it as a factor in terms of whether or not the search was supported by probable cause. The odor must be considered along with all of the other factual circumstances surrounding the search in order to determine whether the police had probable cause. Therefore, the Superior Court remanded the case with instructions for the trial court to reconsider its ruling and consider all of the factors. The defendant then appealed to the Pennsylvania Supreme Court, and the Court accepted the case.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court reinstated the trial court’s ruling. It found that the police did not have probable cause to search the car based on the odor of marijuana alone. The enactment of the medical marijuana act in Pennsylvania made it so that many people may legally possess marijuana, and there is often no way to tell whether someone possesses marijuana legally or illegally. As marijuana is no longer per se illegal in Pennsylvania, its odor no longer provides probable cause for a search of a vehicle pursuant to the “plain smell” doctrine. Like the Superior Court, the Supreme Court concluded that the odor of marijuana could be a factor in determining whether or not police have probable cause, but the odor alone is not enough. The Supreme Court also agreed with the trial court that the evidence should have been suppressed, so it reversed the Superior Court’s ruling to the extent that the Superior Court had directed the trial court to reconsider in light of its opinion. Accordingly, the evidence will be suppressed, and the Commonwealth will be unable to proceed with the case. It is now established law in Pennsylvania that the odor of marijuana alone does not provide the police with the probable cause necessary for a search.

Facing criminal charges? We can help.

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

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 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 12/20/21 Zak Goldstein 12/20/21

PA Superior Court: Defendant’s Consent to Search Invalid Due To Language Barrier Between Defendant and Officer

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carmenates, holding that a defendant’s consent to search his vehicle and luggage was not knowing, voluntary, or intentional because of the considerable language barrier between the defendant and the officer. This decision is significant because there are so many individuals in the United States who do not speak English. As such, this decision protects them and requires that the police show that they made a truly knowing, voluntary, and intelligent waiver of rights when they interact with a police officer in Pennsylvania.

Commonwealth v. Carmenates

The defendant was pulled over by police on Interstate 80 because, according to the police, he was following a tractor-trailer at an unsafe distance and at a speed slower than the flow of traffic. As the police officer approached the defendant’s vehicle, he noticed in the back seat several large duffel bags and a suitcase that was covered by a tan sheet and large stuffed toy bear. It should be noted that this entire interaction was recorded on the officer’s dashboard camera. The officer also observed numerous fast food and snack items, a fast-food drink items, air freshener spray bottles, and “religious paraphernalia” hanging from his rearview mirror. The officer did not observe any drugs or paraphernalia, nor did he smell any marijuana. Further, while interacting with the officer, the defendant did not make any furtive movements nor did he attempt to conceal anything.

When the officer attempted to speak with the defendant, the defendant immediately indicated that he only spoke Spanish. The officer did not speak Spanish, but told the defendant that they “could make it work.” To “make it work,” the officer used Google Translate on his cell phone to translate his statements from English to Spanish and the defendant’s statements from Spanish to English. The officer indicated that he did not have any problems understanding the responses he received from the defendant and the defendant never told the officer that he did not understand a question that was asked to him via Google Translate. The officer would later concede that Google Translate is “not 100 percent accurate at times.”

The defendant provided the officer with his driver’s license, insurance card, and registration card. After which, the officer requested that the defendant exited the vehicle. The defendant complied and the officer searched him for weapons. The officer then instructed the defendant to stand outside in the cold while he performed a criminal history check. The officer would later testify that he intended to issue a warning to the defendant, but before doing so asked him about his travel plans. A large portion of the defendant’s responses were not translated by Google Translate and some that were nonsensical. Despite this poor translation, the officer decided to continue using Google Translate to ask for the defendant’s consent to “see his luggage.” The officer could have used the Spanish-language consent form in his car and that would have been more specific, but for whatever reason he chose not use that form.

The defendant then opened his vehicle and retrieved the suitcase. However, the officer using gestures rather than words, directed the defendant to one of his black duffel bags. The defendant then grabbed the black duffel bag and complied with the officer’s non-verbal direction to open it. The bag contained a large amount of marijuana that was vacuum sealed in plastic bags. The defendant was subsequently placed in handcuffs and then the officer searched the remaining duffel bags and located approximately 39 pounds of marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver a Controlled Substance and Possession of Drug Paraphernalia.

The defendant then filed a motion to suppress. At the motion to suppress hearing, the above facts were placed into evidence. The testimony and video recording indicated that the officer never informed the defendant that he was free to leave or that he was allowed to refuse consent to search his vehicle or his personal effects. Additionally, the record also showed that the defendant was never read his Miranda rights. The defendant would also testify at this hearing, through a translator. In short, he stated that he just spoke a few words of English and that he understood the officer’s request to see his luggage in the literal sense. He also testified that he thought he had to follow the officer’s orders because “he didn’t think that he had the option to say no.” At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress, concluding that the Commonwealth had failed to establish that the defendant had voluntarily, knowingly, and intelligently consented to the search of his vehicle and luggage. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Panel Decision

The Pennsylvania Superior Court reversed the suppression court’s order granting the defendant’s motion to suppress. For a more detailed analysis, please refer to our September 8, 2020 blog “Pennsylvania Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn’t Speak English.” The defendant then filed for an Application for Re-argument En Banc. The Superior Court granted re-argument and withdrew the panel’s previous decision.

Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the suppression court’s order granting the defendant’s motion to suppress. The full panel of the Superior Court held that the defendant’s consent was not knowing, intelligent, and voluntary. The Superior Court was persuaded by the fact that Google Translate is “not 100 percent accurate at times” and that there was evidence that it produced inaccurate and nonsensical translations. Further, the officer’s use of the word “see” rather than a more precise term such as “search,” “examine,” or “look inside” was persuasive to the Superior Court that the defendant did not make a legally valid waiver of his constitutional rights. As such, the Commonwealth will not be able to use the recovered drugs and paraphernalia against him at his trial.

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Zak Goldstein 12/14/21 Zak Goldstein 12/14/21

PA Superior Court Approves Search of Man Who Overdosed in His Home Due to Bulge in Hoodie

The Pennsylvania Superior Court has decided the case of Commonwealth v. Davenport, holding on appeal that an officer lawfully performed a pat-down search of a defendant who had overdosed in his home after the officer noticed a bulge in his hoodie. This decision is concerning given the fact that the defendant was present in his home when the officers performed this search of him. Further, this decision seems to run afoul of Commonwealth v. Hicks which held that an officer cannot infer criminal activity merely because a defendant is in possession of a concealed firearm. Nonetheless, the Superior Court affirmed the search based on the community caretaking exception to the warrant requirement.

Commonwealth v. Davenport

A police officer in McKeesport, Pennsylvania responded to a report of a drug overdose. The officer arrived on scene and spoke with the defendant’s mother. She was the individual who had called the police. His mother told the officer that the defendant had smoked K2 marijuana and that she had found him unconscious on the back porch. The officer saw the defendant face down, breathing, but he was not responding to anyone. Medics arrived and attended to the defendant, and he began to regain consciousness. As the defendant started to get up, the officer observed a heavy bulge in the front pocket of the defendant’s hooded sweatshirt. The officer would later testify that he knew immediately that this bulge was a firearm. The officer then alerted his lieutenant that the defendant had a firearm on him. The lieutenant did a pat-down for officer safety and recovered the firearm.

The defendant was subsequently arrested and charged with person prohibited from possessing a firearm. Prior to trial, the defendant filed a motion to suppress the gun found on his person. The trial court denied the defendant’s motion to suppress. The defendant then elected to proceed to a non-jury trial at which he was found guilty. He was then sentenced to six to twelve years in prison. The defendant filed a timely appeal. On appeal, the defendant argued that the officers illegally seized him because the police officers had completed their wellness check and his medical emergency had ended.

What is the Community Caretaking Doctrine?

The community caretaking doctrine is an exception to the Fourth Amendment’s warrant requirement. This doctrine has three specific exceptions to the warrant requirement: the emergency aid exception, the public servant exception, and the automobile impoundment/inventory exception. Each of these exceptions contemplates that police officers engage in a wide variety of activities relating to the health and safety of citizens unrelated to investigating or preventing criminal activity. However, these caretaking activities must be performed in strict accordance with the Fourth Amendment.

Regarding police actions pursuant to the emergency aid exception, the actions must be independent from the detection, investigation, or acquisition of criminal evidence. Further, the warrantless intrusion must be commensurate with, and limited to, the perceived need to provide immediate assistance. In other words, once the emergency that permitted the police officers to act without a warrant has ceased, their right to enter and search under the emergency aid exception has also ceased.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. In this appellate case, the defendant conceded that the police were lawfully at his residence pursuant to the emergency aid exception. However, he argues that once he regained consciousness and began to get up from the porch floor to go to the hospital, the reason for the officers’ presence in the home ended and the officers were required to leave.

However, according to the Superior Court, the officers still were allowed to conduct a pat-down for their safety when the one officer saw the bulge and “immediately knew it was a firearm.” According to the Superior Court, just because the officers were at the defendant’s house to render emergency assistance, this did not mean that they could not perform a safety frisk of the defendant. The Superior Court opined that because the defendant had just overdosed he could potentially pose a threat to himself or others. Therefore, the officers’ actions were justified. As such, the defendant will not get a new trial and he will be forced to serve his sentence.

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Zak Goldstein 11/23/21 Zak Goldstein 11/23/21

PA Superior Court: Child Complainant Who Does Not Understand Obligation to Tell the Truth May Not Testify

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of In the Interest of K.B., affirming a trial court’s finding that a child complainant was incompetent to testify at the defendant’s trial. This decision is significant because the Commonwealth routinely calls children to testify and oftentimes these children are not legally competent to testify, but trial courts will nonetheless hold that they are competent. As such, this decision will give defense attorneys additional support in litigating these competency motions.

In the Interest of K.B.

The complainant, a six-year-old, disclosed to her father that the defendant (also a juvenile) had touched her genitalia on two occasions. A few days later, the complainant participated in a forensic interview where the complainant made an additional disclosure that the defendant had penetrated her. Based on these disclosures, the defendant was charged with one count of rape and three counts of aggravated indecent assault.

A hearing was subsequently held to determine whether the complainant was competent to testify. At the hearing, the complainant would routinely say that she was in the tenth grade because she thought she was supposed to answer that way. After the hearing, the trial court held that the complaint was incompetent to testify. A few days later, the Commonwealth filed a motion for reconsideration and a motion to reopen testimony requesting that the trial court allow an expert witness to testify regarding the complainant’s testimony. The trial court denied the Commonwealth’s reconsideration motion, but granted the motion to reopen testimony.

At this subsequent hearing, the Commonwealth called the complainant’s therapist as an expert to testify. At this hearing, the therapist admitted that the complainant “sometimes give something incorrect as an answer if she thinks that’s what she is supposed to say.” Additionally, the therapist testified that the complainant “does not understand the impact or the seriousness of the allegations” she made against the defendant. At the conclusion of the hearing, the trial court reaffirmed its finding that the complainant was incompetent to testify at trial. The Commonwealth then filed an interlocutory appeal. On appeal, the Commonwealth argued that the trial court abused its discretion by finding that the complainant was incompetent to testify.

What Rule Governs Competency?

Rule 601 of the Pennsylvania Rules of Evidence governs competency. The rule provides:

a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.

In regards to children, Pennsylvania appellate courts have stated that “the capacity of young children to testify has always been a concern as their immaturity can impact their ability to meet the minimal legal requirements of competency.” Pennsylvania courts have also held that children can have a difficult time distinguishing fantasy from reality; can want to give an answer that “pleases” the questioner; and have a limited capacity for accurate memory. As such, for child witnesses under the age of 14, a trial court must make an independent determination of competency which requires a finding that the witness possess 1) a capacity to communicate, 2) the mental capacity to observe the actual occurrence and the capacity of remembering what it is that he or she is called to testify about; and 3) a consciousness of the duty to speak the truth.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. In its opinion, the Superior Court held that the record supported the trial court’s findings that the complainant did not sufficiently understand her duty to tell the truth and was unable to perceive accurately. Specifically, Superior Court gave great weight to the fact that the six-year-old complainant would routinely say yes when asked if she was in the 10th grade. Additionally, the Superior Court also found it concerning that the complainant was unable to perceive the nature of the events about which she was called to testify. As such, the Superior Court found that the trial court did not abuse its discretion and therefore the Commonwealth will not be able to call the complainant to testify at the defendant’s trial.

Facing Criminal Charges? We Can Help.

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. We have also obtained new trials and sentencing hearings for clients on appeal and in post-conviction litigation. 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.