Philadelphia Criminal Defense Blog

Zak Goldstein 8/11/22 Zak Goldstein 8/11/22

PA Superior Court: Police May Enter Car Without Search Warrant if Contraband in Plain View

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

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that the police legally searched the defendant’s car despite not obtaining a search warrant because they entered the car only to obtain contraband which was in plain view. The plain view exception allows the police to conduct a warrantless search where an object of an incriminating nature is viewed by a police officer from a lawful vantage point. The Superior Court therefore affirmed the trial court’s decision to deny the defendant’s motion to suppress incriminating evidence that had been obtained from his car.

Commonwealth v. McMahon

The defendant was stopped by two officers on patrol. The two officers conducted a traffic stop because they knew the defendant did not have a valid driver’s license from prior encounters. One of the officers, Sergeant Harrison Maddox, testified that he smelled marijuana and observed two burnt cigarettes containing marijuana in the cupholder of the car. The officers then detained and searched the defendant, finding one and a half pills that were later determined to be Oxycodone. Sergeant Maddox then searched the defendant’s vehicle and found three bags of marijuana.

The defendant filed a motion to suppress evidence. In this case, he sought to suppress the marijuana cigarettes, bags of marijuana, and Oxycodone pills. During the suppression hearing, the trial court granted the motion to suppress the bags of marijuana recovered but denied suppression of the marijuana cigarettes and Oxycodone pills. The defendant was found guilty of possessing a controlled substance and possessing marijuana after a stipulated non-jury trial.

The defendant then filed a motion for reconsideration, arguing that the trial court erred in denying his motion to suppress evidence under the plain view doctrine because the officers did not have the right of access to items inside the vehicle, and there was also no exigency to justify the seizure. The court denied that motion, and the defendant appealed.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed the relevant law and precedent regarding the plain view exception and denied the appeal. First, the Court noted that the Fourth Amendment provides that individuals cannot be subjected to unreasonable searches and seizures. A warrant for probable cause is required before an officer may search for or seize evidence. Article I, Section 8 of the Pennsylvania Constitution provides additional protections for individuals, providing that probable cause and exigent circumstances must exist in order to justify a warrantless search of a vehicle. There are, however, exceptions that may justify a warrantless search. Some examples include the consent exception, the plain view exception, the inventory search exception, the automobile exception, the stop and frisk exception, and the search incident to arrest exception.

Here, the Superior Court found that the plain view exception applies to a search of a vehicle where the police enter the car to obtain contraband which they can see from outside of the car. In order for the plain view exception to apply: 1) the officer must see the evidence from a lawful vantage point, 2) the object must be of an obviously incriminating nature, and 3) the officer must have a lawful right of access to the object.

The trial court had concluded that Sergeant Maddox testified that the object clearly had an incriminating nature, as the cigarettes both looked and smelled like marijuana, so the officer had a lawful right of access to the cigarettes. Sergeant Maddox saw the cigarettes in plain view upon approaching the vehicle, so he seized the cigarettes to prevent the destruction of evidence, and he subsequently arrested the defendant.

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On appeal, the defendant attacked the third prong of the test. Specifically, he argued that the police did not seize the item from a place for which they had obtained lawful access because they did not have the right to physically enter the car without a warrant. The defendant relied on Commonwealth v. Alexander to support his argument, but the Superior Court determined that Alexander did not address the plain view exception to a warrantless search; instead, it addressed the automobile exception. It also did not address exigent circumstances at all. In this case, the Superior Court determined that because the cigarettes were in plain view, the officer had the right to go in the car and retrieve it without getting a warrant regardless of whether exigent circumstances existed. Therefore, the Superior Court affirmed the defendant’s judgment of sentence and the trial court’s denial of the motion to suppress.

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Zak Goldstein 7/27/22 Zak Goldstein 7/27/22

PA Supreme Court: Police Often Must Get Search Warrant to Obtain Homicide-by-DUI Defendant's Blood from Hospital

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones-Williams, holding that the defendant’s blood was illegally seized for drug testing because the police obtained it from a hospital without getting a search warrant. The Commonwealth had attempted to use various statutes and theories to justify the warrantless seizure, but because no exigent circumstances were present which would justify dispensing with the warrant requirement, the Supreme Court ruled that the police violated the defendant’s constitutional rights. The court therefore suppressed the blood results.

Commonwealth v. Jones-Williams

The defendant drove his car at about two miles per hour over train tracks, where a train collided with his vehicle. The train pushed it for a quarter of a mile before it stopped moving. The defendant and his daughter were transported to a hospital, while his fiancée who had also been in the car was pronounced dead at the scene.

Lieutenant Steven Lutz, the officer in charge, spoke to several individuals who explained that the defendant’s car smelled like burnt marijuana. Lieutenant Lutz told Sergeant Keith Farren to interview the defendant and obtain a legal blood draw. A legal blood draw requires consent or a search warrant from a subject before being seized for testing. Sergeant Farren determined that the defendant was not conscious enough to give consent, as he had been drifting in and out of consciousness. This would often justify a warrantless search under the Supreme Court’s case law, but prior to obtaining the blood, the officer learned that the hospital had already drawn the defendant’s blood.

Sergeant Farren completed paperwork authorizing the defendant’s blood to be tested, and it was revealed that the defendant’s blood contained Delta-9 THC, an ingredient in marijuana. The defendant was arrested and charged with homicide by vehicle while driving under the influence, homicide by vehicle, endangering the welfare of a child, recklessly endangering another person, DUI: controlled substance – schedule I, DUI: controlled substance – schedule I, II, or III metabolite, DUI: general impairment, careless driving, careless driving – unintentional death, aggravated assault while DUI, and aggravated assault by vehicle.

The defendant filed an omnibus pre-trial motion to suppress the blood test results, arguing that the police did not have probable cause that he was driving under the influence, that his blood was seized without a warrant, and that Section 3755, which allows the police to obtain blood from a hospital without a warrant, did not justify the seizure.

Of note, Section 3755 states that if a person who is suspected to be DUI must seek medical treatment, then a physician must take blood samples from the individual and transmit them within 24 hours to the Department of Health or a laboratory for testing. These results then may be released to the individual tested, his attorney, his physician or government officials.

During the suppression hearing, Lieutenant Lutz testified that the defendant’s blood was obtained through a legal blood draw, citing Section 3755. Notably, Sergeant Farren never referenced Section 3755 during his testimony, instead explaining that he attempted to obtain the defendant’s blood through an implied consent form. Both officers acknowledged that they could have obtained a warrant for the defendant’s blood but did not do so.

The trial court denied the defendant’s motion to suppress, stating that the blood test results were admissible under the exigent circumstances exception. The defendant’s trial by jury commenced, and the Commonwealth admitted his blood test results. The defendant was found guilty of DUI offenses, homicide by vehicle, endangering the welfare of a child, recklessly endangering another person, aggravated assault while DUI, aggravated assault by vehicle, and careless driving.

The Pennsylvania Superior Court’s Decision

The defendant filed a post-sentence motion challenging the weight of the evidence, but this motion was denied. He then appealed to the Superior Court, arguing that the trial court erred in denying his first motion to suppress evidence. He argued that the Commonwealth did not comply with Section 3755, that even if the Commonwealth had complied with Section 3755, this compliance alone is insufficient to overcome the warrant requirement, and that there were no exigent circumstances to justify a warrantless search.

In the trial court’s Rule 1925(a) opinion, the court concluded that the original finding of exigency was erroneous because there was no urgent need for Sergeant Farren to dispense with obtaining a search warrant for the seizure of the defendant’s blood test results. The Superior Court agreed with this opinion. As the hospital had already preserved the blood evidence, Sergeant Farren had plenty of time to obtain a warrant. The Superior Court concluded that the defendant’s motion to suppress should have been granted and remanded for a new trial.

The Supreme Court Appeal

The Commonwealth then filed a petition for allowance of appeal to the Pennsylvania Supreme Court to address whether the Superior Court failed to properly apply and follow legal precedent in holding that Section 3755 does not independently support implied consent and whether the Superior Court failed to properly apply and follow the legal precedent from Mitchell v. Wisconsin by finding that exigent circumstances did not exist to support a warrantless testing of the defendant’s blood. The Supreme Court granted allocatur and agreed to hear the appeal.

The Supreme Court ultimately decided with the defendant. The Supreme Court rejected the Commonwealth’s Mitchell argument. In Mitchell, the United States Supreme Court found that exigency almost always exists when the police need to obtain blood from an unconscious defendant because the defendant cannot be asked to consent and any controlled substances in the blood quickly begin to dissipate. Nonetheless, the Commonwealth argued that exigency was established due to probable cause that the defendant was driving under the influence of marijuana, he had to be transported to the hospital, he was not fully conscious, and he was unable to communicate with Sergeant Farren. The Commonwealth further agued that the police could not have applied for a search warrant as they had other duties to attend to regarding the crash and other emergencies.

The defendant argued that the police officers testified that they could have obtained a search warrant during his trial. The seizure occurred after the blood was drawn, meaning the blood had already been preserved and nothing would dissipate, but testing did not occur until three days later, demonstrating a lack of exigency.

The Supreme Court concluded that there was no exigency because there was very little chance that the blood evidence would be destroyed if the officers took time to obtain a search warrant. The blood evidence had been properly preserved in this case.

The Supreme Court also addressed the Commonwealth’s argument about Section 3755 and concluded that the Commonwealth did not adhere to the requirements of the statute. Sergeant Farren did not comply with Section 3755; specifically, in his paperwork to obtain the defendant’s blood, he invoked 75 Pa.S.C.A. 1547. He also sought the defendant out to obtain consent, which is not necessary when invoking Section 3755, and there was no mention during the trial that any emergency room personnel took the defendant’s blood due to adherence to Section 3755. The Supreme Court also vacated the portion of the Superior Court’s holding that Section 3755 was unconstitutional because it determined that Section 3755 did not legally apply to this case. Therefore, the Supreme Court ultimately found that police violated the defendant’s rights and that the blood evidence should be suppressed. It remanded the case for a new trial. Thus, where the hospital has already preserved a suspect’s blood, the police must get a search warrant prior to seizing that blood from the hospital. They may not rely on exigent circumstances to justify a warrantless search.

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Zak Goldstein 7/4/22 Zak Goldstein 7/4/22

PA Superior Court: No Search Warrant Required to Obtain Pharmacy Records of Pseudoephedrine Purchases

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McFarland, holding that information obtained from the NPLEX is not federally protected health information. Therefore, police do not need to require a search warrant to obtain records from that system. The NPLEX is a system that is used by pharmacies to track over-the-counter Pseudoephedrine purchases.

Commonwealth v. McFarland

An officer entered an Altoona, PA residence in order to attempt to serve a search warrant on two occupants of the residence on March 5, 2018. The defendant was found in the residence with the two other occupants. The officer observed a glass smoking pipe that he deemed likely to be used for smoking methamphetamines, in addition to empty blister packets, batteries, and a soda bottle with a white crystal substance inside. The other officers conducted a protective sweep of the house for any other individuals and noted other items they deemed consistent with manufacturing methamphetamines via the one-pot method.

Notably, methamphetamine can be manufactured using a two-liter bottle, known as the one-pot method. Pseudoephedrine is a primary ingredient to manufacture methamphetamine via this method. It can be purchased at pharmacies or retail stores in blister packets. The medication containing pseudoephedrine is intended to treat allergies and cold symptoms.

The officers notified the Pennsylvania State Police Clandestine Lab, and officers from that organization went to the house and concluded that the residence contained a methamphetamine production lab.

The officers then searched the National Precursor Log Exchange (NPLEX), which is a database that contains information provided by buyers of pseudoephedrine such as their name, address, and date of birth, in addition to the date, time, brand, and amount of pseudoephedrine purchased. This system also limits the amount of pseudoephedrine purchased by a person within a specified period of time.

The NPLEX log showed that the defendant had attempted to purchase Wal-Phed on November 26, 2017, but he was blocked because he had exceeded the 9-gram limit within 30 days. On January 4, 2018, the defendant was blocked from purchasing a 10-count box of pseudoephedrine. On January 28, 2018, the defendant was blocked from making a purchase of a 10-count box of pseudoephedrine. On February 5, 2018, the defendant successfully purchased a 20-count box of pseudoephedrine. On February 19, 2018, the defendant successfully purchased a 20-count box of pseudoephedrine. On March 2, 2018, the defendant successfully purchased a 10-count box of pseudoephedrine. Between January 2017 and March 2, 2018 of the NPLEX log, the defendant had made 28 successful purchases and attempted 17 blocked purchases of pseudoephedrine in Altoona.

A preliminary hearing was held for the defendant on May 23, 2018. After this hearing, the defendant filed an omnibus pretrial motion seeking suppression of the NPLEX log because the officer obtained the log without securing a search warrant or court order first. The motion also sought dismissal of all charges, arguing that the Commonwealth had not found evidence that the defendant was aware of the drug manufacturing operation.

The suppression hearing was held on May 24, 2019 and after this hearing, the court ordered both parties to file memoranda of law, specifically addressing a prior opinion in the case of Commonwealth v. Babcock. Babcock set the precedent in a nearby county that police could obtain NPLEX logs without obtaining a search warrant, though the defendant argued that Babcock was contrary to other existing precedents. The trial court denied the defendant’s motion, and the case proceeded to trial in February 2020. The defendant was found guilty of manufacturing a controlled substance and conspiracy and not guilty of the rest of the charges.

On July 13, 2020, the defendant filed a post-sentence motion, arguing that the verdicts were against the weight of the evidence and that the jury’s verdicts were not sufficiently supported by evidence, as well as arguing that the trial court should have suppressed the NPLEX logs. The post-sentence motion hearing was conducted on September 21, 2020. The Commonwealth’s post-sentence motion, in which the prosecution argued that the trial court had erred in failing to sentence the defendant to the statutory mandatory minimum sentence, was granted, while the defendant’s motion was denied.

The defendant filed an appeal to the Pennsylvania Superior Court. On appeal, he argued that the trail court erred in denying the motion to suppress because the police should have been required to obtain a search warrant in order to get the pharmacy purchase information.

The Pennsylvania Superior Court’s Decision

The defendant argued that there was a reasonable expectation of privacy in the health information that the police obtained without a warrant under the Health Insurance Portability and Accountability Act (HIPAA), which protects information that was obtained in the NPLEX logs.

The Superior Court agreed with the trial court’s decision that the NPLEX logs were not protected information. The NPLEX is a real-time stop-sale system which is intended to be used by law enforcement agencies in addition to pharmacies and other businesses to track sales of ephedrine and pseudoephedrine to ensure individuals do not go over the purchase limit. Data such as the name and address of the purchaser, the name and quantity of the product purchased, the date and time of the purchase, and the purchaser’s identification and signature are allowed to be viewed by law enforcement, according to federal law.

HIPAA is intended to regulate the use and disclosure of health information, which is defined as past, present, or future health or conditions of an individual, in addition to the provision of health care to an individual and any past, present, or future payment for health care to an individual. NPLEX logs do not fall under this definition, and instead would be classified as retail purchase information. NPLEX demonstrates the time and date of purchase, as well as freely given identification of a purchaser.

The Superior Court also reviewed Babcock and agreed with the Commonwealth’s arguments. The Superior Court concluded that the defendant had no protected privacy interest regarding the NPLEX logs, so the Fourth Amendment did not apply, and police did not have to obtain a search warrant.

The defendant also argued that there was insufficient evidence to convict him of manufacturing a controlled substance and conspiracy beyond a reasonable doubt. The Superior Court deemed this claim waived because the defendant did not specify in his statement of errors which elements the Commonwealth failed to prove.

The defendant further argued that his presence at the residence where drug manufacturing occurred was not sufficient to convict him of conspiracy. The Superior Court determined that his extensive, 3.5-year purchase and attempted purchase history of pseudoephedrine, many coinciding with purchases and attempted purchases of the other defendants in the case, established a conspiracy. Additionally, the defendant’s close proximity to the drug manufacturing paraphernalia on March 5, 2018 did not help his case, either. Finally, the defendant was found with $3500 in cash on his person, which the testifying officer explained was consistent with drug trafficking.

The defendant also argued that the trial court should not have denied his claim that the jury’s verdicts were against the weight of the evidence presented, claiming the majority of evidence was based solely on the NPLEX logs. According to relevant case precedent, the jury was free to believe some, all, or none of the evidence presented. The defendant must also establish that the evidence that supported his conviction was vague and uncertain in order to succeed on a weight challenge. The Superior Court determined that there was no abuse of the court’s discretion in rejecting the defendant’s weight claim. As a result, the sentence was affirmed, and the defendant’s appeal was denied.

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Zak Goldstein 6/3/22 Zak Goldstein 6/3/22

PA Superior Court: Stop Illegal Even Though Defendant in High Crime Area and Sweating in 86 Degree Weather

The Pennsylvania Superior Court has decided the case of Commonwealth v. Anderson, holding that the defendant was illegally stopped by the police because they did not have reasonable suspicion to stop him. The police did not have reasonable suspicion to detain him solely because he was in a high crime area and sweating in very hot weather. This conclusion seems obvious, but a panel of the Superior Court had initially overruled the trial court’s order granting a motion to suppress. Fortunately, an en banc panel of the Superior Court granted re-argument and reconsidered.

Commonwealth v. Anderson

A Harrisburg, PA police officer was driving an unmarked vehicle with four other uniformed and armed police officers through a fried chicken store’s parking lot that was known to the officers as a high crime, high drug area. One of the officers observed the defendant on the ground next to a pick up truck. He appeared to be crawling on the ground, but he was not doing anything illegal. The officers approached the defendant and noticed that he was sweating a lot. Of course, it was 86 degrees outside with 67% humidity. The officers asked the defendant if he was okay. He responded that he had dropped something on the ground. The police then left him alone for a little bit.

The defendant entered the fried chicken restaurant. After he went inside, the officers noticed that the driver’s side window of the truck was down. They believed that to be uncommon in this section of the city. They also noticed that the truck was not parked within the lines of the parking space, leading to speculation that the driver could have been intoxicated. The officers continued to watch the defendant while he was inside the restaurant. They noticed that he did not order food, but he did purchase a soda. He also appeared to be pacing while inside.

The defendant exited the restaurant. He looked at the officers and then began to walk in the other direction. The officers approached the defendant again and asked to speak with him. One of the officers asked for ID, and the defendant provided his identification card. With the identification still in his possession, the officer then specifically asked the defendant if he was on parole and if there was anything illegal on his person. The defendant responded that he was on parole but that he did not have anything on his person. Notably, the officers did not document that the defendant was profusely sweating nor exhibiting signs of being under the influence during this second encounter with the defendant.

Apparently unsatisfied with the defendant’s answers, one of the officers asked for permission to search the defendant. The defendant gave verbal consent to search him. The officer searched the defendant’s pockets and found nothing of significance. He then swept over the defendant’s groin region and felt a hard and distinct bulge and, according to the officer, “it was immediately apparent to me that he had a substantial amount of crack cocaine down the front of his pants.” The officer would later testify that “before [the crack] was recovered, I remember specifically saying to my partner, he has an ounce of crack down his pants. And sure enough, we removed 28.3 grams of crack cocaine.” At this point, the officers decided to place the defendant under arrest. The defendant attempted to flee, but he was tackled a few feet away and was subsequently arrested and charged with various drug offenses.

The defendant filed a motion to suppress. Specifically, the defendant argued that the officers lacked both reasonable suspicion and probable cause when the first stopped him. Additionally, the defendant argued that his consent to the officers’ search was not knowingly, voluntarily, or intelligently made. At the motion to suppress hearing, the officers testified to the above facts. Additionally, the defendant testified and stated that one of the officers had patted him down before he even went into the restaurant. Also, he said that after he left the restaurant, the officers patted him down again and rubbed and grabbed his testicles and penis. He also disputed that he ran because he said the officers had a K-9 unit on scene during these interactions.

At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress. The suppression court found the testifying officer to be credible, but the court found that the officers had exceeded the scope of consent that the defendant had granted to him. Specifically, the court said that “there was nothing in the verbal exchange between the officer and the defendant as to what the officer was looking for, or where the officer intended to search” and thus a reasonable person would not have expected the officer to search his groin area. Additionally, the suppression court found that the second interaction with the police began as a mere encounter and then escalated into an investigative detention and that the officers lacked reasonable articulable suspicion that would have justified that stop. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s First Decision

In its first decision, the Pennsylvania Superior Court reversed the trial court and remanded the matter for further proceedings. In this initial non-precedential decision, the majority concluded that both interactions involving the defendant and the police were mere encounters. The majority held that the defendant’s consent was not the product of an illegal detention and that the officers had not exceeded the scope of the defendant’s consent.

The dissent agreed with the trial court and opined that the encounter had escalated from a mere encounter to an investigative detention. The defendant then filed an application for re-argument en banc, arguing that the majority erred in concluding that the police were not performing an investigative detention and that the officers exceed the scope of his consent. The Superior Court granted the defendant’s request and withdrew the three-judge panel decision issued in this matter.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the suppression court’s order. Regarding the first interaction with the defendant, no one disputed that the initial contact with the officers was a mere encounter. Therefore, the Superior Court analyzed the second encounter to determine whether or not a reasonable person would have felt free to leave. Based on its review of the record, the Superior Court found that the interactions between the defendant and the officers was not a mere encounter. The Court reached this conclusion because the officers asked him if he had identification on him and whether he had anything illegal on his person and therefore a reasonable person would not have felt free to leave in this situation. Further, the Superior Court held that officers did not have reasonable articulable suspicion to stop the defendant in the first place. The en banc panel of the Superior Court found that the evidence that was presented at the suppression hearing showed that the officers had “nothing more than a ‘hunch’ that something was amiss.” The fact that the defendant was present in a high crime area, near a truck (that had windows down) that was not parked properly, and that the fact that the defendant was sweating in 86 degree weather was not sufficient to establish the requisite reasonable suspicion necessary to justify an investigative detention. Further, because the defendant was illegally stopped in the first place, his consent to search was invalidated. It was almost important that police had possession of his identification. Therefore, the suppression order stands, and the Commonwealth will not be able to use the evidence that was suppressed in its trial against the defendant.

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