Despite Partial Decriminalization, Marijuana Possession Provides Philadelphia Police Authority to Arrest and Search

Observing or Smelling Marijuana Often Gives Police Probable Cause to Search

As a general rule, both state and federal prosecutors may not use illegally obtained evidence against a defendant in a criminal trial. There are exceptions, but if the police search a defendant illegally and recover drugs, guns, or other contraband, the evidence may not be used in court. The defense may move to exclude the illegally seized evidence by filing a motion to suppress. Once the defendant moves to suppress the evidence, the court will hold an evidentiary hearing, and the Commonwealth must show that that the police obtained the evidence pursuant to a lawful search and seizure. In a recent case from the Superior Court, Commonwealth v. Edward Young, the Superior Court held that the trial court erred in suppressing a gun and marijuana because Philadelphia police officers were free to conduct a full search of the defendant after the defendant admitted that he had marijuana on him.

Commonwealth v. Young

In Young, plain clothes officers were patrolling what they described as a high crime area in Philadelphia. They observed the defendant standing outside of a corner store. When officers returned an hour later, they saw that the defendant was still standing in front of the store despite the fact that it was raining. The three officers got out of their unmarked car and approached the defendant. They identified themselves as police officers and asked him what he was doing. He told them he was waiting for a bus, and one of the officers then asked the defendant if he had anything on him which could harm the officers. The defendant responded that he did not have anything that could harm the officers, but he did have “two bags of weed.”

After the defendant admitted to possessing marijuana, the officers went into the defendant’s pockets and found both a gun and a small amount of marijuana. The defendant moved to suppress the gun and marijuana, and the trial court granted the motion to suppress. The court found that the police had conducted an investigatory detention (“Terry stop”) which required them to have probable cause. Although it was a little fishy that the defendant would stand outside in the rain and claim to be waiting for the bus for over an hour, it did not actually establish that the defendant was engaged in criminal activity. Therefore, the trial court found that the police had conducted an illegal stop when three officers identified themselves as police and demanded to know if the defendant had any weapons on him. Accordingly, the trial court suppressed the evidence. 

The Commonwealth appealed the trial court’s ruling to the Superior Court, and the Superior Court reversed. The Superior Court noted that there are three different legal standards which govern encounters between pedestrians and police officers. The court held that because police had only asked two questions of the defendant, they had simply engaged in a mere encounter which did not require them to have reasonable suspicion prior to interacting with the defendant. Further, once the defendant voluntarily admitted to having marijuana, the police had full probable cause to conduct a search of the defendant and recover the gun. 

LEGAL STANDARDS FOR POLICE ENCOUNTERS

The Superior Court explained that under the Pennsylvania and United States constitutions, there are three legal standards which govern interactions between the police and pedestrians. First, police may always engage in a mere encounter with a person on the street. This means that even if they have not seen someone do anything illegal, police officers may approach a person, ask them some questions, and attempt to have a conversation with the person. The police may do that even if they suspect the person is engaged in criminal activity without any solid basis for that belief. If the subject of the mere encounter volunteers something incriminating or hands over contraband, then that evidence may be used in court. Here, the Superior Court rejected the trial court's reasoning that the fact that there were three officers involved and that they immediately asked about weapons converted the interaction into something more than a mere encounter.

Second, police may conduct a Terry stop and frisk when they have reasonable suspicion. Police officers have reasonable suspicion when they can state specific, articulable facts which lead them to believe that criminal activity may be ongoing. Reasonable suspicion is a fairly low standard, but it requires a showing that the police had more than just a hunch that the suspect was involved in a crime. If police have reasonable suspicion, then they may conduct a stop of a person in which that person is not free to leave or disengage from the interaction. In some cases, the police may also conduct a frisk of the suspect. However, in order to properly conduct a frisk, the police must have not only reasonable suspicion of criminal activity, but also reasonable suspicion that the person is armed and dangerous. Even then, the frisk is limited to a pat down of the person’s outer clothing. The officers may pat the suspect down and feel for weapons, but they may not go into the person’s pockets or manipulate or squeeze any bulges. Further, a Terry stop must be limited and brief or it could escalate into the equivalent of an arrest.

An arrest or its equivalent requires the police to have probable cause. A stop becomes an arrest or its equivalent when a reasonable person would believe that they were under arrest. Important factors in evaluating whether a stop was the equivalent of an arrest may include whether police use handcuffs, provide Miranda warnings, point their guns at the person, transport the person in the patrol car or require them to go to the police station, and the number of officers involved in the encounter. If a police encounter rises to the level of an arrest, then the police must have probable cause that the defendant committed a crime. Probable cause requires a showing that it was more likely than not that the defendant committed a crime. If the police have probable cause, then they may fully arrest the defendant. They may also conduct a search incident to arrest, meaning they may conduct a full search of the defendant.  

In Young, the Superior Court held that the police had not exceeded the scope of a mere encounter when they simply approached the defendant, asked him what he was doing, and asked if he had any weapons on him. The police are always free to walk up to someone and ask the person some questions. Then, once the defendant admitted to having marijuana on him, the police were free to conduct a full search of the defendant because they had probable cause to make an arrest. Once they had probable cause to make an arrest, they were legally authorized to conduct a full search incident to arrest. Therefore, the police did not do anything illegal in finding the gun. The police did not surround the defendant or indicate that they were going to search him; thus, they did not do anything that made the interaction into something more than a mere encounter. 

MARIJUANA STILL PROVIDES PROBABLE CAUSE TO ARREST AND SEARCH

It is important to note that police still had probable cause to arrest and search the defendant despite Philadelphia’s recent city ordinances providing police with the authority to issue citations for marijuana possession instead of making arrests. Although the police do not arrest most people who are caught with 30 grams of marijuana or less, possession of even a small amount of marijuana remains a crime under both state and federal law. Therefore, the police still have the discretion to make an arrest, which gives them the authority to conduct a full search of someone who admits to possessing marijuana.

Award-Winning Philadelphia Criminal Defense Attorneys

Philadelphia Marijuana Lawyers

If you are facing criminal charges for drugs, guns, or other contraband, our Philadelphia criminal defense lawyers can help. We have won countless motions to suppress in the Philadelphia Municipal Court, Court of Common Pleas, and in the surrounding counties. Call 267-225-2545 for a free criminal defense strategy session. 

PA Superior Court: Police May Not Use Pretext to Stop Defendant One Month After Drug Sales

Superior Court Enforces Limits on Police Stops

The Pennsylvania Superior Court has just held that in the absence of more recent criminal activity, police may not conduct a Terry stop of a defendant for selling drugs one month after the defendant sold the drugs. In Commonwealth v. Parker, police officers in Lancaster County investigated drug sales in June and July of 2014. During that investigation, the defendant, who police knew only by the street name “Heart,” allegedly sold drugs to an undercover police officer. The officers recorded a description of Heart’s appearance and that he walked with a limp, but they did not attempt to stop or arrest him at that time.

In August, one of the officers from the drug surveillance operation saw the defendant near a local McDonald’s. The officer testified that he was 100% sure that the defendant was “Heart,” meaning he was the same person who had sold drugs to the undercover officer. The officer then made the decision to stop the defendant in order to find out his real name. The officer, however, did not observe the defendant doing anything illegal that day.  

Despite the fact that the defendant had not done anything illegal that day, two officers stopped the defendant as he was walking away from the McDonald’s. One of the officers who stopped him told him that there had been a disturbance at the McDonald’s and that he believed the defendant was part of the disturbance. He asked the defendant for his name, date of birth, address, telephone number, and social security number because the defendant did not have identification on him. After the officers confirmed the defendant’s identity, they released him. The officers agreed at the motion to suppress that the only reason they stopped him was to identify him for purposes of their drug investigation, and one of the officers specifically testified that the stop was part of a “ruse.”

Even Identifying Information Can Be Incriminating

Although the information obtained by police during the stop may seem relatively harmless, it turned out to be very incriminating. Police had used the phone number given by the defendant during the stop to set up the narcotics transactions earlier in the summer. Accordingly, despite learning only relatively basic identifying information, the phone number turned out to be very incriminating because it connected the defendant to the drug sales and increased the likelihood that the police were correct in believing him to be "Heart." 

The Motion to Suppress

Eventually, police arrested defendant Parker and charged him with Possession with the Intent to Deliver and Criminal Use of a Communications Facility. Prior to trial, Parker moved to suppress the information obtained by police during the pretextual stop, including the incriminating phone number. Parker’s attorneys argued that the police did not have reasonable suspicion or probable cause to stop Parker on the day of the incident. The trial court denied the motion to suppress. The trial judge found that the police had reasonable suspicion to stop the defendant because they had seen him sell drugs in June and July. The defendant was eventually convicted of drug charges following a jury trial, and he appealed the denial of the motion to suppress.

Types of Police Encounters at Issue on Appeal

On appeal, the Superior Court reversed the trial court’s denial of the motion to suppress. The court noted that there are three types of police encounters. The most restrictive encounter is a “mere encounter.” A mere encounter does not require any level of reasonable suspicion or probable cause because the suspect is not compelled to stop or searched. Thus, if police had merely encountered defendant Parker, then the information they obtained could not be suppressed because police may conduct a mere encounter without any level of suspicion. 

The next level of encounter is an “investigative detention.” An investigative detention, often called a Terry stop, requires police to have reasonable suspicion. Reasonable suspicion means that the police have specific, articulable facts leading the officer to believe that criminal activity is afoot. Here, the Commonwealth certainly argued that police would have had reasonable suspicion from observing the defendant engaged in drug sales earlier in the summer. Parker's attorneys, however, argued that the police did not have reasonable suspicion because the drugs sales did not take place that day. 

Finally, the most restrictive type of seizure, which was not really at issue in this case, is a full-blown arrest. An arrest requires probable cause, which means the officer is aware of facts making it objectively more likely than not that the defendant committed a crime. Whether or not an arrest has occurred typically involves an analysis of whether a reasonable person in the defendant's position would believe themselves to be under arrest. Some of the many factors in whether a stop is an arrest could include whether police used handcuffs, displayed weapons, told the suspect he or she was under arrest, gave Miranda warnings, or transported the suspect to the police station. 

Investigative Detention

The Superior Court agreed with the trial court that the defendant was subject only to an investigate detention. He was stopped and asked for information, but he was not handcuffed, transported, interrogated for a lengthy period of time, or told he was under arrest. However, he was not free to leave because he was stopped by two uniformed officers who told him that he was suspected of criminal activity and demanded information from him. Although the request for identification alone does not convert a mere encounter into an investigatory detention, the request for identification coupled with the police officers telling the defendant that they suspected him of wrongdoing would lead a reasonable person in his position to feel that he was not free to leave. Therefore, police were required to at least have reasonable suspicion that criminal activity was afoot in order to stop him.

Police Did Not Have Reasonable Suspicion

The Superior Court found that police did not have reasonable suspicion to stop Mr. Parker because although he may have engaged in criminal activity in June, they had not seen him do anything at all on the day that they stopped him. He was simply walking down the street, and his lack of criminal activity prompted the police to invent a pretext that he had been part of a disturbance at the McDonald’s. Accordingly, the results of the illegal stop must be suppressed. Therefore, Parker will receive a new trial in the lower court at which the illegally obtained evidence cannot be introduced. 

Although the opinion is certainly of benefit to Parker and others in similar situations, the Superior Court's reasoning is unclear. The opinion focused almost entirely on whether the stop was a mere encounter or a Terry stop, and the Superior Court failed to fully explain why the police no longer had reasonable suspicion. Clearly, if Parker had sold drugs to the police earlier in the summer, then the police would have had reasonable suspicion and probable cause to stop and/or arrest Parker at that time. Probable cause, however, can become "stale." If police do not act on information quickly enough, then they may no longer be able to act on it. Police may have been able to obtain an arrest warrant for him, but they did not have the right to stop Parker without a warrant more than a month after the prior sales. Further, the court could have been concerned about the police use of lies to justify the stop and interrogation. 

We Can Help With Criminal Charges

If you are charged with selling or possessing illegal drugs, you need an experienced drug charges attorney who can investigate and evaluate your case, determine if your rights have been violated, and provide you with all of the options and a strong defense. You do not have to plead guilty just because the police found drugs on or near you or in a vehicle. The prosecution must prove that the search was legal and that the drugs were yours. We have the experience to challenge them every step of the way. Call 267-225-2545 for a confidential criminal defense strategy session.  

Is it illegal to possess marijuana in Philadelphia?

Information on Marijuana Decriminalization in Philadelphia

Philadelphia Marijuana Possession Lawyers

This article will explain the potential consequences for possession of marijuana in Philadelphia and the surrounding counties. If you have been arrested for a drug charge or possession of a marijuana, you likely have a number of questions which may not be addressed in this article. Call us at 267-225-2545 for a free criminal defense strategy session and the answers to your questions about marijuana charges in Pennsylvania and New Jersey. 

I heard that marijuana is legal in Philadelphia. Can the police arrest me for possessing marijuana?

Although both Pennsylvania and New Jersey have begun to enact medical marijuana laws, the possession of marijuana for personal use anywhere in Pennsylvania and New Jersey remains a crime. However, the City of Philadelphia has taken numerous steps to effectively decriminalize marijuana over the last few years. These steps have significantly reduced the penalties and consequences of being caught with personal use quantities of marijuana for most people. However, possession of marijuana is still on the books as a crime. Unless and until the state legislature decriminalizes marijuana, it is still possible to be arrested for marijuana possession, and it is still a felony under state and federal law to sell marijuana. Likewise, possession of even a small amount of marijuana remains a crime under federal law, and with the change in Presidential administrations, federal authorities have recently signaled that they intend to continue prosecuting people for marijuana-related crimes. 

Philadelphia's Small Amount of Marijuana Program

The first step that the city took to decriminalize marijuana was the creation of the Small Amount of Marijuana ("SAM") program. Under the terms of this program, the District Attorney would ask defendants caught with under 30 grams of marijuana to pay a fine and complete a number of hours of community service. If the defendant successfully completed the program, then the District Attorney would move to dismiss the charges, and the charges could be expunged. If the defendant failed to pay the fine or complete the community service, then the defendant could still proceed with a motion to suppress and/or trial in the Philadelphia Municipal Court. In many cases, our attorneys have been able to negotiate for our clients who are facing marijuana charges to participate in the program and avoid a criminal record. Although conviction for possession of a small amount of marijuana does not typically carry jail time, it is punishable by up to thirty day in jail as well as fines and court costs. Additionally, a conviction for possession of a small amount of marijuana will lead to an automatic six month driver's license suspension through PennDOT even where the marijuana possession did not occur in an automobile.   

Marijuana Decriminalization - Civil Citations for Marijuana Possession

More recently, city council passed a local ordinance allowing police to issue a civil citation to defendants instead of arresting them and charging them with Possession of a Small Amount of Marijuana. The ordinance calls for the defendant to pay a $25 fine for possession of less than 30 grams of marijuana and a $100 fine if the defendant was caught by police smoking marijuana in public. In most cases, the Philadelphia police will issue the civil citation (or simply throw the marijuana out) instead of arresting someone with a small amount of marijuana, and therefore the citation will not lead to the person having a criminal record or an arrest for drugs showing up on a criminal background check. The ordinance does not apply to the sale of marijuana or to possession of more than 30 grams. It is also still a felony under state law to grow even one marijuana plant. Further, possession of more than 30 grams of marijuana even for personal use may still be charged as Knowing and Intentional Possession of a Controlled Substance, which is an ungraded misdemeanor punishable by up to one year in jail for a first offense. 

The recent ordinance has led to a dramatic decrease in the number of criminal marijuana prosecutions in Philadelphia. However, it is important to remember that marijuana is still illegal. It is still a felony called Possession with the Intent to Deliver to sell marijuana, and the police have the discretion to arrest someone even for possessing a small amount of marijuana instead of issuing the ticket. In most cases, they do not do so, but they are most likely to make an actual arrest for possession when narcotics officers observe alleged drug sales. If the police believe they observed a person selling marijuana, then the police will often arrest the buyers and charge them criminally instead of issuing the ticket. This serves to document the fact that the buyers actually existed, which will often be used to bolster the prosecution's case in the Possession with the Intent to Deliver trial against the seller. 

Marijuana Is Still Illegal in Pennsylvania

One of the most important things to remember is that because marijuana possession is still a crime under state and federal law, police will often try to claim that they smelled the odor of marijuana or saw marijuana in plain view in order to justify the subsequent search of a defendant or defendant's vehicle. If the court believes that officers smelled marijuana, then the court may deny a motion to suppress if the odor of marijuana led the police to search for contraband. Finally, it is also a crime to drive while under the influence of marijuana or with virtually any detectable level of marijuana metabolite in your blood. Because marijuana metabolites may remain in the bloodstream for thirty days or more, a defendant who used marijuana may be convicted of DUI even if they were not even remotely high at the time of the arrest. 

Our Philadelphia Drug Charges Lawyers Can Help

Despite these positive steps towards marijuana decriminalization, Philadelphia police and law enforcement officers in the suburban counties continue to charge many people both with possessing and selling marijuana. The federal government also continues to aggressively pursue drug traffickers even in cases involving marijuana. If you are facing any type of drug or marijuana possession charge in Pennsylvania or New Jersey, call 267-225-2545 for a free criminal defense strategy session with one of our defense attorneys. There are often defenses to these charges either through the use of pre-trial motions to suppress or at trial. We understand the fear and uncertainty you are likely feeling following an arrest, and we will immediately get to work answering your questions and building a defense to get results for you. 

PA Superior Court: If Police Have Probable Cause to Search a Car, They May Search All Containers In the Car

Police May Search Bags and Purses in a Car If They Have Probable Cause to Search the Car

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Runyan, 2017 PA Super 114. In Runyan, the Commonwealth sought reversal of a suppression order which found that police could not automatically search the purse of a passenger in an automobile even where police had probable cause to search the car itself. The Superior Court held that if police have probable cause to search a car, they may search all containers within the car in which they could reasonably expect to find the object of their search. Accordingly, police in Pennsylvania no longer need a search warrant in order to search bags or other containers in a car if they have probable cause for the search of the car. This is true regardless of whether there is any link between the container being searched and the driver of the car. In other words, police may search the purses and luggage of passengers in the car.  

The Car Search

In Runyan, local police officers in Mercer County observed a sedan parked with four occupants in it. Police observed the sedan in an area that the officers described as a high crime, high drug area. The vehicle was parked there late at night, so officers approached the vehicle to see what was going on.

As one of the officers approached the vehicle, he smelled the door of burnt marijuana coming from the area around the vehicle. When he walked up to the passenger side door, he could see a small bag of marijuana on the back seat passenger side floor. Naturally, the officer mentioned the bag of marijuana to the occupants of the car. The driver then attempted to crawl from the front of the car into the back seat and exit the car. At that point, the police officers asked everyone to get out of the car, handcuffed each occupant of the car, and began searching the vehicle.

Upon searching the car, the officer recovered the bag of marijuana which he had seen on the floor. Additionally, he found a number of purses in the car, and the officer searched those purposes. In one of the purses, he found a spoon, syringe, and crack pipe. The spoon had white residue on it, so the officer concluded that he had found drug paraphernalia. In another purse, the officer found a spoon with white residue on it and a number of syringes. That purse, unfortunately, also had the identification card for the defendant, Ms. Runyan.

Possession of Drug Paraphernalia

Based on the discovery of the drug paraphernalia in the purse, the officers arrested Ms. Runyan and charged her with possession of drug paraphernalia. Ms. Runyan moved to suppress the evidence, arguing that although police may have had probable cause to search the car, they were required to and did not have independent probable cause to search her purse. The trial court agreed and granted the motion to suppress. The court found that the “warrantless search of purses of passengers of a vehicle is not justified by the search incident to arrest exception.”

Police May Search A Car Without A Warrant – But They Must Have Probable Cause

The Commonwealth appealed, and the Pennsylvania Superior Court reversed the trial court’s order suppressing the drug paraphernalia. The Superior Court cited the recent case of Commonwealth v. Gary in which the Pennsylvania Supreme Court held that police do not need a warrant to search an automobile. Instead, because of the inherent movability of a vehicle and possibility that evidence could be lost during the delay inherent in obtaining a warrant, police may search an automobile whenever they have probable cause to do so. Probable cause means that it is more likely than not that the police will find some sort of contraband or evidence in the car. Obviously, the odor of marijuana, bag of marijuana in plain view, driver’s attempt to flee from the back of the car, and the officer’s extensive experience in making drug and marijuana arrests all combined to establish probable cause that there would be some kind of drugs or more marijuana in the vehicle. Therefore, the Superior Court held that officers could search any container in the car in which the contraband could be concealed, including Ms. Runyan’s purse.

The United States Supreme Court has already held that police may search any containers within a car when police have probable cause to do so. Therefore, following the Pennsylvania Superior Court’s decision, Pennsylvania and federal courts will now apply the same standard in automobile search cases. Police need only probable cause in order to search any container within the car.

There Are Defenses in Car Search Cases

Despite the Superior Court’s ruling, there are often still defenses in cases involving searches of cars. Although police may search the car and the containers therein when they have probable cause, it is often possible to challenge both the initial stop of the vehicle and whether the police really had the probable cause to conduct the search. First, depending on the type of stop, police must have either reasonable suspicion or probable cause to actually conduct a stop of a vehicle. If the defense can show that the police stopped the car arbitrarily or pretextually, it may be possible to have all of the results of the stop suppressed. Second, if the police did not actually have probable cause to search the car, then the results of the illegal search would be suppressed. Here, police saw drugs in plain view and the driver attempted to flee, but in many cases, the evidence of contraband is not so obvious and can be challenged. Finally, many drug possession and gun possession cases raise issues of constructive possession. In this case, Ms. Runyan made the foolish decision to store her identification card with her drug paraphernalia. However, in most cases, people do not do that. Had her ID not been with the contraband, then police would have had a difficult time establishing to whom the purse belonged without some kind of statement.  

A Philadelphia Criminal Defense Lawyer Can Help With Drug Cases  

Zak T. Goldstein, Esq - Philadelphia Drug Lawyer

The Philadelphia Criminal Defense and Drug Defense Lawyers of Goldstein Mehta LLC can help with drug and gun cases in Philadelphia. We have litigated and won countless motions to suppress and possession cases involving vehicle searches and other searches in Pennsylvania and New Jersey. Our lawyers will work closely with you to build the strongest possible defense to your charges. Call 267-225-2545 for a complimentary, 15-minute criminal defense strategy session.