Philadelphia Criminal Defense Blog

Zak Goldstein 7/22/21 Zak Goldstein 7/22/21

Can you get your money back if the police take it illegally in Pennsylvania?

Return of Property Petitions in Pennsylvania

Following a recent ruling of the Pennsylvania Commonwealth Court, it is now clear that people who have had their money or other items seized by police officers who did not have probable cause may file a motion to suppress in the Court of Common Pleas and ask that a Common Pleas Judge order the police to return the property. This is called filing a return of property petition. Previously, it was clear that if the police filed criminal charges in conjunction with taking the property, then the defendant could file a motion to suppress and would be entitled to a return of the property if the motion to success was successful in the criminal case. It was unclear, however, what remedy existed for a person who has had his or her cash taken by the police but where the police have not filed charges or an actual forfeiture action.

The Commonwealth Court has now clearly ruled that a person who has had property stolen by the police may file a return of property petition in the Court of Common Pleas and move to suppress the evidence if the police did not have probable cause to take the property or engage in the search that led to the forfeiture. If the judge finds that the police acted illegally, then the Commonwealth must return the money or other property. This rule obviously does not apply to pure contraband like drugs or illegal guns. The Commonwealth Court reached this conclusion in the case of In Re: $300,000 U.S. Currency.

What is a Return of Property Petition?

In Pennsylvania, a Return of Property Petition may be filed when law enforcement officers have seized money or other valuable personal property like cars and watches on the suspicion that the property may be related to criminal activity. If the police do not file criminal charges or a defendant wins a related criminal case, then the return of property petition allows the defendant to ask a judge to order that the property be returned. Return of property litigation is very similar to a forfeiture action. In a forfeiture action, the government moves for a court order directing that it be allowed to keep seized property because the property was obtained through some illegal means. Forfeiture actions often accompany criminal charges. For example, if police officers find a large quantity of money while conducting a search that results in the discovery of drugs, the police will likely keep the money. Prosecutors should then file a forfeiture action if they do not plan to return the money. In many cases, however, the government does not necessarily file the separate forfeiture case. The forfeiture order could come along with a criminal sentence, or the government may simply keep the money.

If there is no criminal conviction, however, or the money is really unrelated to the conviction, then the person who had the money taken by the police can file to have that money returned. Prior to the Commonwealth Court’s recent decision, it was clear that a defendant in a forfeiture action or criminal case could file a motion to suppress and challenge the procedures by which the police recovered the property. If the police acted illegally, then the property should be returned. It was unclear whether a motion to suppress could be filed in a return of property case where the defendant initiated the litigation and the government never filed criminal charges or a forfeiture action.

Rule 588

Rule 588. Motion for Return of Property.
(A)  A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B)  The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(C)  A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

In Re: $300,000

An individual was stopped in Union County, Pennsylvania by a Pennsylvania State Police Trooper while he was driving his vehicle. During the search, the Trooper found $300,000 and seized the money. Despite this seizure, the individual was not charged with any crimes. Approximately a month after he was stopped and had his money taken from him, the individual brought a stand-alone return of property action in Union County Court of Common Pleas seeking the return of his property. A few weeks after this filing, the individual then filed a motion to suppress, seeking suppression of the property found in his car and all statements that were made to the police.

The Commonwealth opposed the Individual’s motion to suppress. The government argued that the individual could not bring a stand-alone motion to suppress in a return of property action prior to the Commonwealth filing criminal charges or initiating a forfeiture action. The trial court denied the individual’s motion to suppress arguing that a motion to suppress was “premature.”

The individual then filed a Petition for Permission to Appeal with the Commonwealth Court. In his petition, he asked for the Commonwealth Court to decide whether an individual aggrieved by the seizure of property could file a motion to suppress in conjunction with a motion to return property when the Commonwealth has not filed a forfeiture petition and no criminal charges have been filed. The Commonwealth Court agreed to hear his appeal. It should be noted that approximately six months after the trial court denied his motion to suppress, the Commonwealth filed a forfeiture petition against the individual. Consequently, the Commonwealth argued that the individual’s appeal was now moot because he now had the ability to file a motion to suppress evidence. In response, the individual argued that it was not moot because the Commonwealth could just “sit” on evidence it seizes “until the Commonwealth decides to provide an opportunity to the aggrieved individual to suppress the evidence.”

The Commonwealth Court’s Decision

The Commonwealth Court reversed the trial court’s decision. Regarding the Commonwealth’s argument that the individual’s appeal was moot, the Commonwealth Court found that this issue was capable of repetition, yet likely to evade appellate review. Further, this issue involved an issue important to the public interest and consequently the Commonwealth Court declined to deny the individual’s appeal because of mootness.

Turning to the merits of his appeal, the Commonwealth Court held that an individual can file a motion to suppress regardless of whether or not the Commonwealth has filed criminal charges or a forfeiture action. In making its decision, the Commonwealth Court first emphasized that though forfeiture hearings are “civil in form,” they are also “in their nature criminal.” As such, even though an individual is not entitled to all the rights that criminal defendants receive, they do have some rights. One of those rights is that they are entitled to the exclusionary rule of the Fourteenth Amendment and therefore individuals can file motions to suppress when their property has been unlawfully seized by the government. The United States Supreme Court has also weighed in on this issue and has held that “the Commonwealth may not permanently acquire derivative contraband which it has initially seized unconstitutionally.”

The Commonwealth Court then analyzed the relevant statutes at issue. Specifically, it looked at Rules 581and 588 of the Pennsylvania Rules of Criminal Procedure. In its analysis of these rules it found that motions to suppress were intended to be used by individuals to reclaim their property. Further, the Commonwealth Court also held that a person does not have to be a criminal defendant to initiate the proceedings. Instead, the Commonwealth Court found that it was the intent of the Pennsylvania General Assembly to allow any person who has had their property unlawfully seized be allowed to file a motion to suppress to regain their property. The reason is because if an individual was forced to wait until a criminal complaint or forfeiture petition was filed then the Commonwealth could hold someone’s unconstitutionally seized evidence in perpetuity. This was not acceptable to the Commonwealth Court and therefore it held that, in the future, individuals can file motions to suppress in conjunction with their motions to return property, regardless if a criminal proceeding or a forfeiture action has been initiated against them.

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Zak Goldstein 5/8/21 Zak Goldstein 5/8/21

PA Superior Court: Nervousness and Fidgeting by Driver Do Not Justify Search of Car

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The Pennsylvania Superior Court has decided the case of Commonwealth v. Mattis, holding that police cannot search a car during a routine traffic stop solely because the driver exhibited “extraordinary” nervousness and fidgeting. This case continues a recent trend of Pennsylvania appellate courts upholding the privacy rights of the Commonwealth’s citizens and seeking to rein in pretextual searches of people and automobiles, especially in marijuana cases.

The Facts of the Case

The defendant was charged with possession of marijuana, possession of drug paraphernalia, and speeding in Fayette County, Pennsylvania. He moved to suppress the evidence, alleging that police had stopped him illegally and searched his car without probable cause or reasonable suspicion. The trial court held a hearing on the motion to suppress. In order to defend the legality of the search, the Commonwealth relied on the affidavit of probable cause for the defendant’s arrest and called the arresting State Trooper to testify.

The affidavit of probable cause indicated that a Pennsylvania State Police Trooper pulled the defendant over for driving 76 mph in a 55 mph zone. The defendant pulled over on command, and the trooper approached the vehicle. He obtained the defendant’s license and paperwork, but he noticed that the defendant was “extraordinarily nervous and fidgeting constantly.” He asked the defendant to get out of the vehicle. The defendant did so, and the Trooper asked for permission to search the car. The defendant gave him permission to search the car. Another Trooper was on scene and assisted with the stop. Police found marijuana, a pipe, and a grinder in the car. Fayette County apparently still prosecutes people for marijuana offenses.

The Motion to Suppress

The defendant filed a motion to suppress. He argued that the Trooper did not have the reasonable suspicion necessary to prolong the stop beyond the initial purpose of investigating the speeding offense and that some nervousness and fidgeting did not justify any further investigation.

The Superior Court agreed. The Court recognized that police may stop a vehicle for a traffic infraction as the Trooper did here. However, once the purpose of the initial, valid, traffic stop has ended and a reasonable person would have believed he was free to leave, a second round of questioning with some official restriction on a person’s freedom of movement requires reasonable suspicion of some other crime for it to be justified. As a general rule, police may order the occupants of a vehicle to exit that vehicle for safety reasons during a legitimate traffic stop. But police may not extend the stop longer than necessary, and nervousness alone does not justify reasonable suspicion for an investigative detention or prolonging a stop.

Here, the Trooper testified that he made contact with the defendant and the defendant was nervous and fidgeting around in the vehicle. He confirmed that the defendant did not have any warrants and that he had valid paperwork for the car.

But without any additional reason, he then ordered the defendant to exit the vehicle. Most importantly, the Trooper retained possession of the defendant’s paperwork. The defendant was not free to leave because he obviously could not leave without his driver’s license. The Trooper, while still in possession of the documents, asked the defendant if he could search the car. The defendant granted permission.

The Court suppressed the resulting evidence because it found that the Trooper had improperly extended the stop. Although the Trooper had the right to ask the defendant to exit the vehicle as a general rule, he did so because of the defendant’s nervousness and not because of anything related to the speeding investigation. Because he held onto the paperwork, the defendant was not free to leave. Therefore, the Trooper did not have reasonable suspicion to extend the stop, and the Court ruled that the evidence should be suppressed because the consent given was not constitutionally valid.

The Superior Court vacated the conviction and remanded for a new trial without the illeglaly seized evidence. The Commonwealth will likely have to withdraw the charges.

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Zak Goldstein 4/9/21 Zak Goldstein 4/9/21

PA Supreme Court: Separate Conviction for Related Traffic Ticket Bars Prosecution for All Other Charges

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant cannot be tried for a felony case if his traffic offense that arose out of the same criminal transaction was adjudicated. This decision is significant and it could result in hundreds of felony cases being dismissed. As a practical matter, it is unclear on how much of an effect it will have on future cases because the Philadelphia Police Department no longer issues a traffic citation when they also arrest a defendant for a non-traffic offense. Nonetheless, this will have a positive impact on many individuals who have outstanding felony cases in Philadelphia.

Commonwealth v. Johnson

The defendant was stopped for a traffic stop and was charged with driving with a suspended license, possession with intent to deliver (“PWID”), and the knowing and intentional possession of a controlled substance (“K/I”). The defendant was subsequently found guilty, in absentia, of the summary traffic offense. His other charges were not adjudicated. The defendant then subsequently filed a motion to dismiss arguing that 18 Pa.C.S. § 110 (“Section 110”) requires that the government bring all known charges against a defendant arising out of a single criminal episode occurring within the same judicial district in a single proceeding. In other words, the defendant argued that when he was found guilty of the traffic offense, he could no longer be prosecuted because he had already been found guilty of a criminal offense that arose from this transaction. The trial court was not persuaded and denied his motion. The defendant then filed an interlocutory appeal.

Some insight into how Philadelphia Courts operate is necessary to understand this decision. First, Philadelphia Traffic Court was merged into Municipal Court in 2013 and thus became the Traffic Division of the Municipal Court. Next, in Philadelphia, the Municipal Court has jurisdiction to adjudicate criminal offenses that are punishable up to five years. As an example, a defendant cannot plead guilty to an F1 Robbery in front of a Municipal Court judge because the court does not have jurisdiction to accept that guilty plea. Further, a defendant cannot have a trial for F1 Robbery for the same reason. In the instant case, the defendant was charged with PWID and because he was accused of distributing heroin, the maximum sentence (assuming it was his first PWID conviction) was fifteen years’ incarceration. Consequently, the Municipal Court did not have jurisdiction to hear the defendant’s PWID charge at the trial stage. However, the Municipal Court did have jurisdiction to adjudicate his K/I charge because the maximum sentence he could have received was three years’ incarceration (assuming he had a prior K/I conviction) and thus that charge fell within the Municipal Court’s jurisdiction.

On appeal at the Superior Court, the Commonwealth acknowledged that the Pennsylvania Supreme Court’s decision in Commonwealth v. Perfetto held that Section 110 generally prohibits the government from proceeding with a prosecution subject to the jurisdiction of the Philadelphia Municipal Court. The Commonwealth conceded that they could not prosecute the defendant for the K/I charge because it fell within the Municipal Court’s jurisdiction. However, the Commonwealth argued that because the Municipal Court lacked jurisdiction over the PWID, then the trial court was correct in denying the defendant’s motion to dismiss for that claim. In defense of this position, the Commonwealth invoked Section 112(1) of the Crimes Code which states “[a] prosecution is not a bar within the meaning of [Section 110] under any of the following circumstances…(1) [t]he former prosecution was before a court which lacked jurisdiction over the defendant of the offense.” In other words, their argument was that Section 112 applied to the defendant’s case because Municipal Court could not adjudicate the defendant’s PWID charge and it was irrelevant that his traffic case had already been adjudicated.

The Superior Court was persuaded by the Commonwealth’s argument and affirmed the trial court’s decision with respect to the PWID charge. The defendant then lodged an application for re-argument which was denied by the Superior Court. The defendant then subsequently filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Pennsylvania Supreme Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions. The issue for this decision is which offense applies for Section 112. Is it the first offense (in this case the traffic charge) or the subsequent offense (the PWID charge)? The defendant argued that Section 112 bars subsequent prosecutions when the previous court had jurisdiction over the first case whereas the Commonwealth argued that prosecution should not be barred if the original court does not have jurisdiction over the subsequent offense.

In making its decision, the Pennsylvania Supreme Court looked at the legislative history of Sections 110 and 112, appellate decisions that addressed these rules, and it analyzed the Model Penal Code which Section 112 was derived from. Based on this analysis, the Pennsylvania Supreme Court agreed with the defendant and determined that Section 112 was not applicable to the PWID charge because the Traffic Division did have jurisdiction to hear the defendant’s traffic case. As such, because Section 112 did not apply to his case, Section 110 did apply to the defendant’s PWID charge and therefore his case will be remanded back to the trial court for formal dismissal.

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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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