Philadelphia Criminal Defense Blog

Zak Goldstein 3/4/21 Zak Goldstein 3/4/21

PA Superior Court: No Probable Cause from Marijuana Odor to Search Parked Car

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The Superior Court has decided the case of Commonwealth v. Grooms, holding that the smell of marijuana alone does not establish probable cause to search a parked automobile. This decision is significant because it adds to a growing list of appellate decisions that restrict the police’s authority to search a person’s property because the police smelled the odor of marijuana. Hopefully, this trend persists and the Superior Court continues producing opinions similar to Grooms.

Commonwealth v. Grooms

Swatara Township police officers were on routine patrol at the Harrisburg Mall. According to the officers, the Harrisburg Mall parking lot is a high-drug area and they frequently make narcotics arrests there. The officers were walking through the parking lot where they came across an unrelated individual who they subsequently arrested for possession of marijuana. They arrested this individual about three rows away from the defendant’s vehicle.

After they were done with that arrest, they continued their patrol where they detected an odor of marijuana coming from the defendant’s vehicle. The officers then approached the vehicle and confirmed that they were smelling “fresh” marijuana emanating from the defendant’s vehicle. They then shined their flashlights into the vehicle to observe any contraband in plain view, but did not see any contraband. The police then tried to open the defendant’s car door, but it was locked. The officers then retrieved their lockout tool to unlock the vehicle. Once inside the vehicle, they said the odor of marijuana was stronger. While searching the vehicle they located two bags of marijuana, a marijuana-filled cigar, crack cocaine and some ecstasy. At no point did the police obtain a search warrant. Shortly after they finished their search, they saw the defendant and a woman walking up to the vehicle. The defendant then told the police that “anything found in the car was his.” The defendant was arrested and charged with criminal use of a communication facility, possession with intent to deliver a controlled substance (“PWID”), possession of drug paraphernalia, and possession of cocaine and methamphetamine.

The defendant then filed a motion to suppress alleging that the police lacked probable cause to search his car. At the hearing, the above facts were placed on the record. During cross-examination, the officers conceded that they searched the defendant’s vehicle solely because they smelled marijuana coming from the defendant’s vehicle. The officers also conceded that they only waited a few minutes before they began searching the defendant’s car because their shift was going to end soon. Finally, the officers acknowledged that dry-leaf marijuana was legal for medical purposes in Pennsylvania.

At the conclusion of arguments, the trial court denied his motion to suppress. The trial court justified this by stating that the “odor of marijuana alone may establish probable cause.” The defendant then proceeded to a stipulated bench trial where the defendant was found guilty of the aforementioned crimes. He was then sentenced to 30 to 60 months’ imprisonment. The defendant then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court vacated the defendant’s conviction and remanded the case for further proceedings. In its decision, the Superior Court held that the odor of marijuana alone does not establish probable cause, but instead is a factor that may contribute to a finding of probable cause when assessed under the totality-of-the circumstances.

The reason for this is because of the passage of the Medical Marijuana Act (“MMA”) which legalized dry leaf marijuana for medicinal purposes. The Superior Court acknowledged that because of the MMA there would be “hundreds of thousands of Pennsylvanians” who could potentially be emitters of marijuana odor. Thus, it would be improper to subject law-abiding citizens to police detention solely on the basis of the odor of marijuana.

This was the logic in Commonwealth v. Barr. In that case, the police conducted a warrantless search of a lawfully stopped vehicle after they detected an odor of marijuana emanating from the vehicle. In Barr, the Superior Court held that the odor of marijuana alone, absent any other circumstances, could not establish probable cause because so many Pennsylvanians lawfully possess marijuana. Thus, applying the logic of Barr, the Superior Court held that the trial court erred when it applied a per se rule that the smell of marijuana establishes probable cause. As such, the trial court’s order denying the defendant’s motion to suppress is reversed and his conviction is vacated.

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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 10/29/20 Zak Goldstein 10/29/20

PA Supreme Court: Police Can't Search Your Phone Just Because You're Near Drugs and Guns

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s proximity to drugs and guns is not sufficient probable cause to obtain a search warrant for a defendant’s cell phone. This decision is significant because cell phones often contain very private and intimate details about our lives. Additionally, they can also obtain very incriminating details that prosecutors will use against defendants at trial. Thankfully, Johnson places a higher burden on the government to access these details, and so this is a big win for both privacy advocates and criminal defendants.

Commonwealth v. Johnson

In 2014, Pittsburgh police officers received a 911 call from an anonymous caller. The call stated that shots were fired inside an apartment. The officers subsequently went to this apartment and as they approached the apartment, they smelled a strong odor of burning marijuana coming from inside of the apartment and could hear people talking, too. The officers then knocked on the door and announced their presence. They continued knocking for several minutes with no response.

Eventually, a woman opened the door and the officers entered the apartment and conducted a protective sweep and detained five individuals, one of them being the defendant. During their sweep, the officers observed in plain view two bricks of heroin on a shelf. They also recovered three stolen firearms hidden together above the apartment’s hot water tank. The five detained individuals were placed under arrest. Officers then secured the apartment and obtained a search warrant. When they searched the defendant, they found two cell phones on his person. During their search of the apartment, the officers recovered an additional 717 bags of heroin and three cell phones. Four months after they recovered the cell phones, the officers requested and obtained an additional search warrant for the cell phones that they recovered, including the phones found on the defendant.

The defendant was charged with Possession with the Intent to Deliver (“PWID”), VUFA § 6105, Knowing and Intentional Possession of a Controlled Substance (“K/I”), and Small Amount of Marijuana (“SAM”). The defendant then filed a motion to suppress the drugs, cell phones, and firearms that were recovered in the apartment because he argued they were illegally obtained. This motion was denied. After this motion was litigated, the Commonwealth turned over additional discovery to the defendant. Specifically, they provided him with text messages that were recovered from his phone that “referenced stamp bags of heroin which had the same stamp as [the] bags recovered from the apartment.”

The defendant filed a subsequent motion to suppress these text messages, arguing that the search warrant should never have been granted given that the officers lacked probable cause to search his phone. The defendant argued that the police were going through his phone to figure out who the guns and drugs belonged to and that this was an improper attempt to ascertain that information. Unfortunately for the defendant, the suppression court did not agree with him and denied this motion to suppress too.

The defendant then elected to proceed by a bench trial. He was found guilty of PWID and K/I, but was found not guilty of VUFA 6105, and SAM. He then filed an appeal with the Pennsylvania Superior Court which was denied. According to the Superior Court, the fact that the defendant “was found ‘in close proximity to firearms and evidence of the distribution of heroin’ established a probable cause to believe more evidence relating to narcotics distribution would be found on his cell phone.” The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court who agreed to hear his case. For purposes of this blog, only the search warrant pertaining to the defendant’s cell phones will be addressed.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and remanded the defendant’s case for a new trial. In its decision, the Pennsylvania Supreme Court rejected the notion that because there was probable cause to arrest the defendant for constructively possessing the drugs and guns that that there was also probable cause to search his cell phone for evidence of those same offenses. The Court stated that there must be a link or some facts to show that the cell phone contains evidence of criminality.

In the instant case, the Court found that there was no such link. There was nothing in the affidavit to suggest that the defendant was personally in possession of the drugs or that he was even aware they were in the apartment. Additionally, because the police originally went to the apartment on the basis of an alleged emergency, the police did not have the support of a long-term drug trafficking investigation to bolster their affidavit. The only thing that the affidavit of probable cause established was that the defendant was present in a place where illegal contraband happened to be found. This was not sufficient to get a search warrant for a cell phone. Therefore, the defendant should receive a new trial without the illegally seized evidence.

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Zak Goldstein 10/19/20 Zak Goldstein 10/19/20

Criminal Defense Attorney Zak Goldstein Wins Motion to Dismiss in Philadelphia Drug Trafficking Case

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to quash Possession with the Intent to Deliver charges in Philadelphia. Relying on the defense of constructive possession, Attorney Goldstein successfully convinced the Court of Common Pleas judge to dismiss all charges because the Commonwealth failed to adequately show at the preliminary hearing that the defendant actually or constructively possessed the controlled substance in question.

In Commonwealth v. QG, Philadelphia prosecutors charged the defendant with possession with the intent to deliver (“PWID”) and related charges. A Pennsylvania State Police Trooper had pulled QG over on the highway for a minor motor vehicle code violation. QG pulled over on command, and the trooper approached the car. Once the trooper reached the driver’s side window, he could smell the odor of marijuana coming from the vehicle. He therefore removed QG and the front seat passenger from the vehicle and began searching the car. He found nothing on QG or the passenger, but he did find a small amount of marijuana in the center console. He also found a pouch on the back seat of the vehicle behind the passenger’s seat, and inside that pouch, the trooper found a significant quantity of heroin/fentanyl and paraphernalia which suggested that the drugs were likely for sale. Neither occupant of the car made any incriminating statements, neither person appeared nervous or attempted to flee, the car did not belong to QG, and the Commonwealth did not perform any forensic testing on the pouch or its contents to determine whether QG’s fingerprints or DNA were on any of the items.

The Commonwealth proceeded on a theory of constructive possession, meaning that they argued that even though the pouch was not physically on QG, it must have been his because he was the driver of the car. The Philadelphia Municipal Court judge agreed and held the case for court, so Attorney Goldstein filed a motion to quash when the case reached the Court of Common Pleas. In the motion to quash, Attorney Goldstein argued that the Commonwealth had failed to prove constructive possession – meaning essentially that the DA’s office had failed to prove that the drugs belonged to QG and that they could have belonged to the passenger or someone else who had recently been in the vehicle.

In general, constructive possession is a legal doctrine that allows the Commonwealth to obtain a conviction for a possessory offense even when the contraband is not found on the defendant. In order to prove constructive possession, the Commonwealth must prove that a defendant had the intent and ability to control the contraband in question; in other words, the Commonwealth must be able to circumstantially prove that the contraband belonged to the defendant. Typically, the Commonwealth will seek to show that a defendant constructively possessed something by showing nervousness, furtive movements, flight, statements, or by using forensic testing to obtain DNA or fingerprints. Here, the Court of Common Pleas granted Attorney Goldstein’s motion to quash because the Commonwealth could not prove any of those things. Accordingly, the Court dismissed all of the charges, and QG was immediately released.

If you need a criminal defense lawyer in Philadelphia, PA, 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, DUI, 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 9/25/20 Zak Goldstein 9/25/20

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

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

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

Commonwealth v. Barr

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

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

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

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

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

The Superior Court’s Decision

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

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

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