Philadelphia Criminal Defense Blog

Zak Goldstein 9/8/20 Zak Goldstein 9/8/20

PA Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn't Speak English

Criminal Defense Lawyer.jpg — Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Carmenates. This decision is significant because it holds that a defendant does not need to completely understand a trooper’s directives in order to make a knowing, intelligent, and voluntary decision to allow the police to search his property. This decision is especially troubling given the fact that there are so many people in the United States who either do not speak English or have a limited proficiency with the English language. As such, this decision could cause significant problems for non-English speaking individuals who are stopped by the police.

Commonwealth v. Carmenates

A Pennsylvania State Trooper stopped the defendant during a routine traffic stop because the defendant supposedly was not traveling a safe distance behind the truck in front of him. After he stopped the defendant, the trooper noticed that the defendant had a suitcase and several large duffle bags covered by a blanket in the backseat. Additionally, the trooper noticed a large teddy bear, fast food, air fresheners and religious paraphernalia in the car. According to the trooper, the fast food showed that the defendant had engaged in “longer” and “harder” travel. Further, the trooper claimed that the religious paraphernalia was common among drug traffickers because it was used to bring them good luck during their travels.

The defendant did not really speak English. Therefore, the trooper used Google Translate on his phone to communicate with the defendant even though he would later admit that it is not always accurate. The trooper asked the defendant for his license, registration, and proof of insurance, but the defendant was supposedly trembling when looking for that information. The trooper then asked the defendant to step out of his car while he ran his information. The trooper also acknowledged that because it was December it was chilly outside.

After reviewing his information, the trooper concluded that there were no issues with the defendant’s information. The Trooper then told the defendant he was going to be issued a digital warning. The trooper then asked if he could see the defendant’s luggage, and the defendant supposedly consented to the search. Upon searching the luggage, the trooper discovered that the duffle bags contained marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver (“PWID”) and possession of paraphernalia.

The defendant then filed a motion to suppress. At the suppression hearing, the above facts were placed on the record. Additionally, the defendant testified that he felt that he had to follow the trooper’s orders. He said the reason he opened the bag was because the officer pointed at it and that he did not realize that he could decline to consent to the search. At the conclusion of the hearing, the defendant argued that he did not knowingly, intelligently, or voluntarily consent to the search. The suppression court agreed and suppressed the drugs and paraphernalia that were found in the defendant’s car. The Commonwealth, then filed a timely appeal.

Do you have to let the police search your stuff?

No, you do not. In general, you do not have to let the police search your belongings whether those belongings are in your house or in your car. If the police have a search warrant, then they can gain access to your house to search your things. With respect to the search of a car, the police typically do not need a search warrant, but they do no need probable cause. However, the probable cause requirement disappears if you tell the police that they have permission to search your things. Therefore, if you have a car full of marijuana, guns, dead bodies, or other contraband, it is usually a bad idea to give the police permission to search the car. Instead, it is usually advisable to tell them that they do not have your consent to conduct a search. If they have probable cause or believe that they have probable cause, they may search the car anyway, but you will have a better case for challenging the legality of the search in court. If you tell them they can search the car, then you will have a very hard time challenging the legality of the search. This advice generally applies even if you do not think you have anything illegal in the car as someone else who uses your car could have left some evidence of a crime in the car without your knowledge.

The Fourth Amendment protects against unreasonable searches and seizures. A warrantless search is unreasonable unless an exception applies. A consent to search is a valid exception. In determining whether a consent to search is valid, there must be a finding that the defendant’s consent to search was knowing, voluntary, and intelligent. In making its decision, the suppression court is supposed to look at a variety of factors in its decision. This is a very fact intensive inquiry and therefore the courts will consider any or all of the following: how many officers are present; whether there was physical contact, the officers’ demeanor; whether the defendant was informed that he did not have to consent to the search; whether the police directed the defendant’s movements; the defendant’s maturity, intelligence and education; and any other relevant factors.

The Superior Court’s Decision

The Superior Court reversed the suppression court’s decision. In its decision, the Superior Court found that the defendant’s consent was knowing, intelligent, and voluntary. Specifically, the Superior Court found that the defendant was legally stopped because he was following the truck too closely. Additionally, the Superior Court found that the trooper was not aggressive, did not draw his weapon, and that this was an “even tempered interaction.” Further, the Court found that it was of no significance that the defendant “felt” that he needed to open the baggage.

What is troubling about the Court’s decision is that it appeared to only focus on the lack of coercion by the trooper. The Court barely focused on whether the defendant made a knowing and intelligent decision to consent to searching his property. The Court found that it was not significant that the defendant and the trooper had a language gap and that Google Translation was not always accurate. Therefore, the Commonwealth will now be able to use the drugs and paraphernalia against the defendant at his trial. This is particularly alarming because the trial court, as the finder of fact which was able to actually view the testimony of the witnesses, had concluded that the consent was not really voluntarily given. The Superior Court appears to have substituted its own judgment for that of the trial court without having had the opportunity to observe the witnesses.

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Zak Goldstein 7/14/20 Zak Goldstein 7/14/20

PA Superior Court: Acquittal on Underlying Reckless Endangerment Charge Does Not Prevent Conviction for Drug Delivery Resulting in Death

Philadelphia Criminal Defense Attorney Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Burton, holding that a defendant may be convicted of Drug Delivery Resulting in Death (“DRDD”) despite being acquitted on the charge of Recklessly Endangering Another Person (“REAP”) in the same trial. This decision is not surprising given that it has long been the rule that with few exceptions, inconsistent verdicts do not usually warrant a new trial. As many criminal defense attorneys can tell you, inexplicable verdicts are not uncommon in jury trials. Because the judge cannot question the jury regarding its motivation, the reasons for these verdicts are usually unknown. Sometimes they are reached out of leniency, while it is also possible that the jury just may not understand the law. Here, the defendant’s acquittal on the REAP charge did not require an acquittal on the related drug delivery resulting in death charge.

Commonwealth v. Burton

On January 29, 2016, police officers responded to a call for an unresponsive person in Pottstown, Pennsylvania. Unfortunately, the officers were too late. When they arrived, the unresponsive person unfortunately had died. The officers found a syringe on the floor near her body. They also found three blue wax bags from the scene which contained fentanyl. The officers also recovered the decedent’s cell phone and prescription pill bottles.

Between 7:00 p.m. and midnight on January 28, 2016, the decedent exchanged text messages with an individual named “Rachel” in her phone. It was later determined that “Rachel” was the defendant. According to a detective who reviewed the text messages and testified at the defendant’s trial, the conversation between the defendant and the decedent was indicative of arranging a drug transaction. The police also recovered surveillance footage that showed the defendant walking near the decedent’s building while talking on his phone. The video footage also showed the defendant entering and leaving the decedent’s house.

On June 22, 2016, the defendant was arrested and charged with DRDD, REAP, criminal use of a communication facility, and possession with the intent to deliver a controlled substance (“PWID”). The defendant filed a motion to suppress the subscriber information relating to his cell phone which was denied by the trial court. Following a two-day trial, a jury found the defendant guilty of DDRD, criminal use of a criminal facility, and PWID. Notably, the jury acquitted the defendant on the REAP charge. On October 31, 2018, the trial court sentenced the defendant to an aggregate term of 13 to 35 years in a state correctional institution. The defendant then filed a timely appeal. On appeal, the defendant argued that he could not have been convicted of DDRD because he was acquitted on the charge of REAP.

What is Drug Delivery Resulting in Death in PA?

The crime of DDRD is governed by 18 Pa. C.S.A. § 2506. The statute provides:

A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64),1known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

The crime of DRDD is unique because unlike most crimes, it has two separate mental states that the Commonwealth must prove beyond a reasonable doubt to convict the defendant. First, the defendant must have intentionally sold the contraband. Next, the death of the decedent must be the reckless result of the actions of the defendant. Further, the penalty for DRDD can be quite severe. If a defendant is convicted of DDRD, they can face a maximum sentence of forty years. Although DRDD is not usually charged in Philadelphia state court, it is a very common charge in the surrounding counties (i.e. Bucks County) and is particularly serious when charged in federal court. Therefore, if you are charged with DDRD it is imperative that you have a highly skilled attorney representing you.

The Superior Court’s Decision

The Superior Court rejected the defendant’s argument that he could not be convicted of DRDD because he was acquitted on the charge of REAP. Unfortunately, these confusing and inconsistent jury verdicts are fairly common, and appellate courts are extremely reluctant to apply an acquittal on one charge to prevent a conviction on another except under extremely limited circumstances. Here, the Superior Court expressly rejected the argument that REAP is a lesser included offense of DDRD. The Superior Court found that the recklessness mental state is satisfied by the delivery of a drug whose dangers are widely known. Fentanyl is widely known to be extremely dangerous and frequently results in overdoses. Therefore, the defendant’s conviction for DRDD will stand, and he will be forced to serve his sentence.

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Zak Goldstein 6/30/20 Zak Goldstein 6/30/20

PA Supreme Court Finds Use of Medical Marijuana Not a Probation Violation

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Gas v. 52nd Judicial District, Lebanon County, holding that judges and probation officers in Pennsylvania cannot issue blanket orders prohibiting probationers from using lawfully obtained medical marijuana. This is decision is a huge win for probationers because more and more people are being prescribed medical marijuana to treat their underlying physical and mental health conditions. There is a wide body of research that shows that medical marijuana can be very therapeutic. However, many conservative counties had moved to prohibit probationers from using marijuana even when the treatment has been provided by a doctor. This decision will allow probationers to receive the treatment that they need without fear from retribution by their probation officers or back judges.

Gass v. 52nd Judicial District, Lebanon County

In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana Act. In a declaration of policy, it recognized that scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance their quality of life. The Medical Marijuana Act specifically stated that possession of medical marijuana is legal in Pennsylvania. It also stated that a person cannot be subjected to arrest, prosecution, or penalty in any manner on the basis of medical marijuana.

Three years after the passage of the Medical Marijuana Act, the 52nd Judicial District (Lebanon County) announced its “Medical Marijuana Policy” which prohibits the active use of medical marijuana while a defendant is under supervision by the Lebanon County Probation Services Department. In the instant case, the defendant was a probationer who was being supervised by Lebanon County’s probation department. She claimed that she suffered from a serious and debilitating medical condition. The defendant attempted other therapies, but they were not successful in treating her underlying condition. She then secured lawful authorization to use medical marijuana. However, because of Lebanon County’s Policy, she was not allowed to use it. The defendant subsequently filed a petition in the Commonwealth Court to challenge the validity of Lebanon County’s Policy.

The Commonwealth Court found that it lacked jurisdiction to hear the case, so it transferred jurisdiction to the Pennsylvania Supreme Court. In response to the defendant’s petition, the 52nd Judicial District argued that the General Assembly did not intend for the Marijuana Medical Act to override the court’s ability to supervise probationers and parolees. Further, the 52nd Judicial District argued that its probation services office has experienced disruptions and persistent difficulties when supervising probationers and parolees using medical marijuana. Finally, the 52nd Judicial District argued that it should prevail because its probationers must comply with all state and federal criminal laws and that probationers must refrain from using alcohol or “any legal or illegal mind/mood altering chemical/substance.”

Can you use medical marijuana while on probation in PA?

The Pennsylvania Supreme Court found that Lebanon County’s Policy violated the Medical Marijuana Act and held that Lebanon County probationers are allowed to use medical marijuana so long as it was lawfully obtained. In making its decision, the Pennsylvania Supreme Court reviewed the language of the Act. The Court found that although people with criminal records may be prohibited from delivering medical marijuana to patients, they can still qualify as patients under the Medical Marijuana Act. Further, the Legislature specifically prohibits individuals who are in custody at a correctional institution to be permitted to use medical marijuana.

This is significant because the Medical Marijuana Act omits any reference to individuals on supervision (i.e. probation). Therefore, the Legislature could have specifically prohibited probationers from using medical marijuana, but it chose not to. Additionally, the fact that they specifically addressed individuals in custody shows that the Legislature considered individuals involved in the criminal justice system and chose not to exclude probationers from using medical marijuana. Therefore, the policy violates the act, as did a revised policy which put the burden on the probationer to prove in a court hearing that the marijuana was medically necessary despite a doctor having already so determined. Because its policy violates the Medical Marijuana Act, Lebanon County can no longer enforce its policy and the defendant will be permitted to use medical marijuana while on supervision.

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Zak Goldstein 6/21/20 Zak Goldstein 6/21/20

PA Superior Court: Car Stop in High Crime Area at Night Not Enough to Justify Search of Defendant's Vehicle

The Superior Court has decided the case of Commonwealth v. Arrington, holding that the police cannot search a person or car for weapons solely because they stopped that person at night in a high-crime area. Instead, there has to be something about the person’s behavior more than the timing and location of the search that would justify such an intrusion on someone’s Fourth Amendment rights.

Commonwealth v. Arrington

On October 25, 2016, Pittsburgh Police officers were on patrol in the Homewood neighborhood of Pittsburgh. At around 2:00 AM, the officers observed the defendant’s vehicle driving towards them in their lane of travel. The defendant’s vehicle remained in the incorrect lane of travel for several seconds before returning to the correct side of the road. The officers suspected that the defendant was driving under the influence of drugs or alcohol and conducted a traffic stop.

When the officers approached the defendant’s vehicle, they witnessed the defendant exhibit several signs of intoxication. The defendant did provide the officers with his driver’s license. However, because of his alleged intoxication, the officers asked the defendant to step out of the vehicle. The defendant did not immediately respond, so the officers physically removed the defendant from the vehicle, conducted a pat down search of him, and placed him in handcuffs. Once the defendant was detained, the officers ran the defendant’s name through the National Crime Information Center (hereinafter “NCIC”). This NCIC search revealed that the defendant had a revoked concealed-carry permit.

The officers then asked if the defendant if he was in possession of any weapons to which the defendant replied he was not. The officers subsequently searched the defendant’s car, without a search warrant, and found a handgun in the backseat. The handgun’s serial number was run through NCIC, and it came back that the weapon had been reported stolen. Police arrested the defendant. The officers then searched the vehicle again as well as the defendant. Upon searching the vehicle, the officers discovered 81 bags of heroin, U.S. currency, a digital scale, and four cell phones. After searching the defendant, they discovered additional U.S. currency and another bag of heroin.

Prosecutors filed various charges for firearms and drug trafficking offenses. Specifically, they charged the defendant with firearms not to be carried without a license (VUFA 6106), possession of drug paraphernalia, possession of a controlled substance, possession with the intent to deliver, and various traffic offenses. Notably, the defendant was not charged with DUI.

Prior to his trial, the defendant filed a motion to suppress arguing that the search of his vehicle was illegal. The trial court denied the motion. The defendant then elected to proceed by way of a non-jury trial where the court found him guilty of the previously mentioned offenses. He received fifteen months of probation. The defendant then filed a timely appeal.

Are the Police Allowed to Search My Vehicle for Weapons?

The police are only allowed to search your vehicle for weapons during a car stop (also known as a protective sweep) if they have reasonable articulable suspicion that you are armed and dangerous. To conduct this search, the officer must reasonably believe that his safety or the safety of others is threatened. If the search is found to be unreasonable, the judicial remedy is to exclude all evidence that derived from this illegal search.

In making this determination, the court will look at the totality of the circumstances to determine whether the officer’s actions were legally justified. Some of the factors that courts will consider are: whether the stop occurred at night; whether the defendant appeared to conceal something; whether the defendant was nervous during the interaction; whether the area the stop occurred is considered a high crime area; whether weapons are in plain view; and other factors that the trial court may deem appropriate.

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision and held that the contraband and weapons found in the defendant’s car should have been suppressed. In making its decision, the Superior Court held that the evidence was not sufficient to establish that the officers reasonably believed that the defendant was armed and dangerous. Although the stop did occur at night, the defendant did not make any furtive movements nor did he display any nervousness. Further, the defendant provided the officers his driver’s license and no weapons were visible when he was initially stopped. According to the Superior Court, the only factors that supported reasonable suspicion was that the stop occurred at night and in a high-crime neighborhood. Therefore, because the defendant “posed no threat to the officers’ safety” the Superior Court reversed the trial court and ordered that the contraband seized from his car should have been suppressed. As such, the defendant’s conviction will be vacated, and he will get a new trial.

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