Philadelphia Criminal Defense Blog

Zak Goldstein 12/20/21 Zak Goldstein 12/20/21

PA Superior Court: Defendant’s Consent to Search Invalid Due To Language Barrier Between Defendant and Officer

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carmenates, holding that a defendant’s consent to search his vehicle and luggage was not knowing, voluntary, or intentional because of the considerable language barrier between the defendant and the officer. This decision is significant because there are so many individuals in the United States who do not speak English. As such, this decision protects them and requires that the police show that they made a truly knowing, voluntary, and intelligent waiver of rights when they interact with a police officer in Pennsylvania.

Commonwealth v. Carmenates

The defendant was pulled over by police on Interstate 80 because, according to the police, he was following a tractor-trailer at an unsafe distance and at a speed slower than the flow of traffic. As the police officer approached the defendant’s vehicle, he noticed in the back seat several large duffel bags and a suitcase that was covered by a tan sheet and large stuffed toy bear. It should be noted that this entire interaction was recorded on the officer’s dashboard camera. The officer also observed numerous fast food and snack items, a fast-food drink items, air freshener spray bottles, and “religious paraphernalia” hanging from his rearview mirror. The officer did not observe any drugs or paraphernalia, nor did he smell any marijuana. Further, while interacting with the officer, the defendant did not make any furtive movements nor did he attempt to conceal anything.

When the officer attempted to speak with the defendant, the defendant immediately indicated that he only spoke Spanish. The officer did not speak Spanish, but told the defendant that they “could make it work.” To “make it work,” the officer used Google Translate on his cell phone to translate his statements from English to Spanish and the defendant’s statements from Spanish to English. The officer indicated that he did not have any problems understanding the responses he received from the defendant and the defendant never told the officer that he did not understand a question that was asked to him via Google Translate. The officer would later concede that Google Translate is “not 100 percent accurate at times.”

The defendant provided the officer with his driver’s license, insurance card, and registration card. After which, the officer requested that the defendant exited the vehicle. The defendant complied and the officer searched him for weapons. The officer then instructed the defendant to stand outside in the cold while he performed a criminal history check. The officer would later testify that he intended to issue a warning to the defendant, but before doing so asked him about his travel plans. A large portion of the defendant’s responses were not translated by Google Translate and some that were nonsensical. Despite this poor translation, the officer decided to continue using Google Translate to ask for the defendant’s consent to “see his luggage.” The officer could have used the Spanish-language consent form in his car and that would have been more specific, but for whatever reason he chose not use that form.

The defendant then opened his vehicle and retrieved the suitcase. However, the officer using gestures rather than words, directed the defendant to one of his black duffel bags. The defendant then grabbed the black duffel bag and complied with the officer’s non-verbal direction to open it. The bag contained a large amount of marijuana that was vacuum sealed in plastic bags. The defendant was subsequently placed in handcuffs and then the officer searched the remaining duffel bags and located approximately 39 pounds of marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver a Controlled Substance and Possession of Drug Paraphernalia.

The defendant then filed a motion to suppress. At the motion to suppress hearing, the above facts were placed into evidence. The testimony and video recording indicated that the officer never informed the defendant that he was free to leave or that he was allowed to refuse consent to search his vehicle or his personal effects. Additionally, the record also showed that the defendant was never read his Miranda rights. The defendant would also testify at this hearing, through a translator. In short, he stated that he just spoke a few words of English and that he understood the officer’s request to see his luggage in the literal sense. He also testified that he thought he had to follow the officer’s orders because “he didn’t think that he had the option to say no.” At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress, concluding that the Commonwealth had failed to establish that the defendant had voluntarily, knowingly, and intelligently consented to the search of his vehicle and luggage. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Panel Decision

The Pennsylvania Superior Court reversed the suppression court’s order granting the defendant’s motion to suppress. For a more detailed analysis, please refer to our September 8, 2020 blog “Pennsylvania Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn’t Speak English.” The defendant then filed for an Application for Re-argument En Banc. The Superior Court granted re-argument and withdrew the panel’s previous decision.

Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the suppression court’s order granting the defendant’s motion to suppress. The full panel of the Superior Court held that the defendant’s consent was not knowing, intelligent, and voluntary. The Superior Court was persuaded by the fact that Google Translate is “not 100 percent accurate at times” and that there was evidence that it produced inaccurate and nonsensical translations. Further, the officer’s use of the word “see” rather than a more precise term such as “search,” “examine,” or “look inside” was persuasive to the Superior Court that the defendant did not make a legally valid waiver of his constitutional rights. As such, the Commonwealth will not be able to use the recovered drugs and paraphernalia against him at his trial.

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Zak Goldstein 12/14/21 Zak Goldstein 12/14/21

PA Superior Court Approves Search of Man Who Overdosed in His Home Due to Bulge in Hoodie

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Davenport, holding on appeal that an officer lawfully performed a pat-down search of a defendant who had overdosed in his home after the officer noticed a bulge in his hoodie. This decision is concerning given the fact that the defendant was present in his home when the officers performed this search of him. Further, this decision seems to run afoul of Commonwealth v. Hicks which held that an officer cannot infer criminal activity merely because a defendant is in possession of a concealed firearm. Nonetheless, the Superior Court affirmed the search based on the community caretaking exception to the warrant requirement.

Commonwealth v. Davenport

A police officer in McKeesport, Pennsylvania responded to a report of a drug overdose. The officer arrived on scene and spoke with the defendant’s mother. She was the individual who had called the police. His mother told the officer that the defendant had smoked K2 marijuana and that she had found him unconscious on the back porch. The officer saw the defendant face down, breathing, but he was not responding to anyone. Medics arrived and attended to the defendant, and he began to regain consciousness. As the defendant started to get up, the officer observed a heavy bulge in the front pocket of the defendant’s hooded sweatshirt. The officer would later testify that he knew immediately that this bulge was a firearm. The officer then alerted his lieutenant that the defendant had a firearm on him. The lieutenant did a pat-down for officer safety and recovered the firearm.

The defendant was subsequently arrested and charged with person prohibited from possessing a firearm. Prior to trial, the defendant filed a motion to suppress the gun found on his person. The trial court denied the defendant’s motion to suppress. The defendant then elected to proceed to a non-jury trial at which he was found guilty. He was then sentenced to six to twelve years in prison. The defendant filed a timely appeal. On appeal, the defendant argued that the officers illegally seized him because the police officers had completed their wellness check and his medical emergency had ended.

What is the Community Caretaking Doctrine?

The community caretaking doctrine is an exception to the Fourth Amendment’s warrant requirement. This doctrine has three specific exceptions to the warrant requirement: the emergency aid exception, the public servant exception, and the automobile impoundment/inventory exception. Each of these exceptions contemplates that police officers engage in a wide variety of activities relating to the health and safety of citizens unrelated to investigating or preventing criminal activity. However, these caretaking activities must be performed in strict accordance with the Fourth Amendment.

Regarding police actions pursuant to the emergency aid exception, the actions must be independent from the detection, investigation, or acquisition of criminal evidence. Further, the warrantless intrusion must be commensurate with, and limited to, the perceived need to provide immediate assistance. In other words, once the emergency that permitted the police officers to act without a warrant has ceased, their right to enter and search under the emergency aid exception has also ceased.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s decision. In this appellate case, the defendant conceded that the police were lawfully at his residence pursuant to the emergency aid exception. However, he argues that once he regained consciousness and began to get up from the porch floor to go to the hospital, the reason for the officers’ presence in the home ended and the officers were required to leave.

However, according to the Superior Court, the officers still were allowed to conduct a pat-down for their safety when the one officer saw the bulge and “immediately knew it was a firearm.” According to the Superior Court, just because the officers were at the defendant’s house to render emergency assistance, this did not mean that they could not perform a safety frisk of the defendant. The Superior Court opined that because the defendant had just overdosed he could potentially pose a threat to himself or others. Therefore, the officers’ actions were justified. As such, the defendant will not get a new trial and he will be forced to serve his sentence.

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Zak Goldstein 11/10/21 Zak Goldstein 11/10/21

PA Superior Court Allows Detention of Motorist Based on Nervousness, Travel to Philadelphia, and Criminal Record

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Galloway, holding that a state trooper did not unlawfully prolong a traffic stop because the defendant was acting nervous and also admitted that he had just left Philadelphia. This decision is extremely troubling because it suggests that people who travel to Philadelphia have fewer rights than those who do not, and the level of suspicion here was very low. It remains possible that the decision could be reversed in further proceedings.

Commonwealth v. Galloway

A Pennsylvania State Trooper was on highway patrol when he pulled over a black Honda Civic for traveling 64-mph in a 55-mph zone. The defendant was in the passenger seat. While the trooper was conducting the traffic stop, the dashcam video picked up a car in the left bound passing lane passing the trooper and the driver’s vehicles. Because of the location of the stop, the trooper approached the passenger side window of the vehicle so that he was not so close to the traffic.

As the trooper approached, he noticed that both the defendant and the driver were acting nervous. Specifically, the defendant was not making eye contact with him and was sweating profusely. The trooper thought it was suspicious that the defendant was sweating so much because it was very cold at the time. The trooper then told the driver why he pulled him over and asked for his information. He also asked the defendant for his identification, to which the defendant told him he did not have any on him. The defendant provided him with his information verbally, and when the trooper ran the defendant’s information, he learned that the defendant “had a lengthy criminal history involving drug dealing out of the state of Delaware.”

The trooper informed the driver that he would be letting him go with just a warning, but he did not return his driver’s license to him. The trooper then continued to question the defendant and the driver as to where they were driving from, what they were doing, and the reason why the defendant was sweating so much. Both the driver and the defendant told the trooper that they just left Philadelphia where they got cheesesteaks on South Street. The trooper would later testify that based on his experience, he knew that Philadelphia was a hub for narcotics distribution. As such, the trooper asked the defendant to step out of the car and when he did, the trooper noticed a marijuana bowl in the center console of the car. The trooper then conducted a vehicle search of the car and found 1,575 bags of heroin on the floor. Both the driver and the defendant were arrested and read their Miranda rights.

The defendant was subsequently charged with possession with intent to deliver a controlled substance (“PWID”), possession of a controlled substance, and possession of drug paraphernalia. The defendant then filed a pre-trial motion to suppress the contraband found in the vehicle because of “the prolonged nature of the detention was illegal in that it went well beyond the reason for the traffic stop itself...and was not supported by a reasonable suspicion.” In other words, the defendant argued that the trooper unlawfully extended the traffic stop. The trial court held a hearing, agreed with the defendant, and granted the defendant’s motion to suppress. The trial court held that the “[t]rooper…was not presented with sufficient particularized facts to constitute the reasonable suspicion required to continue detaining [the driver] and [the defendant] past the point of writing a speeding ticket or issuing a warning.” The Commonwealth then filed an interlocutory appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s suppression order. The Superior Court found that, when viewing the totality of the circumstances, that the trooper “possessed the requisite reasonable suspicion to extend the traffic stop to investigate his concerns that [the defendant] and the driver were engaged in criminal activity.” According to the Superior Court, the trooper had reasonable suspicion to prolong the stop because: the defendant traveled to Philadelphia, Philadelphia has a reputation for narcotics sales, the defendant was acting nervous, and his prior criminal history. Therefore, the trial court’s suppression order is reversed and the Commonwealth will be able to use the drugs and paraphernalia against the defendant at his trial.

Clearly, the evidence supporting the stop in this case was thin. It is not criminal to travel to Philadelphia, and it is not unusual to be nervous when dealing with the police even if you have not done anything wrong. The Court seems to have heavily emphasized the defendant’s excessive nervousness and criminal history, but as the defendant was not on probation or parole, the criminal history should not have resulted in any lesser rights against a search or seizure. This case also fails to follow other recent cases in which the Superior Court has unequivocally held that nervousness alone is not enough to justify a search of a vehicle. Under current law, however, the troopers would have needed to obtain a search warrant prior to conducting the search. That was not the state of the law at the time of the motion, however, so the defendant failed to raise that issue. Accordingly, the Court upheld the validity of the search and remanded the case for trial.

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Zak Goldstein 9/27/21 Zak Goldstein 9/27/21

3rd Circuit Court of Appeals: Gun Enhancement for Drug Trafficking Offenses Could Apply at Sentencing Even if Gun Nowhere Near Drugs

The Third Circuit Court of Appeals has decided the case of United States v. Denmark, holding that the two-level enhancement for possession of a dangerous weapon during a drug trafficking offense applied even though the defendant conducted the drug deal over FaceTime and did not possess guns when he delivered the drugs. This case provides almost no rational limit on when the enhancement can apply and allows a court to consider applying it even when the gun has almost nothing to do with the drugs.

U.S. v. Denmark

Pennsylvania police intercepted a suspicious package that had been shipped from California to York, Pennsylvania. The package contained five pounds of methamphetamine. Police later determined that the defendant shipped the package. A few months later, law enforcement recorded a FaceTime call with the defendant. During the call, the defendant confirmed his involvement with the shipment. The caller ordered an additional three pounds of meth from the defendant who was to ship the drugs to York, Pennsylvania. The defendant then went to the post-office to deliver the drugs. While he was making his delivery, he was not in possession of any firearms. When the package arrived, the caller confirmed its delivery via phone. The meth was in a heat-sealed bag, which was wrapped in several layers of shrink wrap.

Approximately a month later, police carried out a search warrant for the defendant’s residence. The police confirmed that the defendant had made the aforementioned call in that location, as the residence matched his background during the call. Police did not recovery any drugs, but they did find stashes of firearms and drug paraphernalia in various parts of the house. Specifically, the police found a semi-automatic assault rifle, a shotgun, two handguns, a heat-sealed plastic bag, shrink wrap, and a bullet-proof vest. The police also found several loaded and unloaded magazines for the handguns and the assault rifle and over 900 rounds of ammunition.

The defendant was subsequently arrested, and a grand jury indicted him on two counts of distribution and possession with intent to distribute at least 500 grams of meth. The defendant agreed to plead guilty to one of the counts in exchange for dismissal of the other count and a three-level reduction for acceptance of responsibility. At sentencing, the Probation Department calculated the defendant’s offense level at 35, which gave the defendant a Guidelines imprisonment range of 168 to 210 months and a mandatory minimum of 10 years. The calculation included a two-level enhancement for possession of a dangerous weapon.

During his sentencing, the defendant objected to the weapons enhancement, arguing that the firearms could not have been connected with his conviction because the meth had never been at his residence. The District Court rejected this argument and applied the two-level enhancement which resulted in the defendant’s guidelines being 168 to 210 months. The Court varied downward, based in part of his previous charitable service and family responsibilities. The Court sentenced the defendant to 135 months’ imprisonment. The defendant then filed a timely appeal. On appeal, the defendant argued that for the weapons enhancement to apply, the guns had to be “actually present at the crime.” Specifically, the defendant argued that the guns had to be physically near him while he transported the meth to the post office.

How is U.S.S.G § 2D.1(b)(1) Applied?

Section 2D.1(b)(1) provides that, in connection for unlawful manufacturing, importing, exporting, or trafficking of drugs “if a dangerous weapon (including a firearm) was possessed,” then a defendant’s offense level is increased by 2 levels. The sentencing commission created the enhancement because there could be an increased danger of violence when drug traffickers possess weapons. The enhancement is to be applied if there was a weapon present, unless it is clearly improbable that the weapon was connected with the offense.

In order for this enhancement to be applied, the Government must first prove by a preponderance of the evidence that a defendant possessed a dangerous weapon. The burden then shifts to the defendant “to demonstrate that the connection between the weapon and the drug offense was clearly improbable” or, in other words, that there was a lack of connection between the firearm and the drug offense. As a practical matter, the enhancement is usually applied if a firearm was present.

The Third Circuit’s Decision

The Third Circuit Court of Appeals denied the defendant’s appeal, though it stated that this case “was so tenuous as to place it on the outer edge of the sentencing enhancement.” The Third Circuit held that a firearm does not have to be physically close to drugs or drug paraphernalia for the sentencing enhancement to apply. Instead, the Government only needs to show that there is “a connection” between the guns and the drug trafficking offense.

In the instant case, law enforcement observed the defendant make a drug deal over FaceTime from his home. According to the Third Circuit, because the defendant agreed to sell meth via FaceTime in the same home where the guns were found, the guns were connected to his drug offense. The burden then shifted to the defendant to show that the connection between the drugs and the guns were “clearly improbable.” In making its decision as to whether it was “clearly improbable,” courts consider four factors: 1) the type of gun involved, 2) whether the gun was loaded, 3) whether the gun was stored near the drugs or drug paraphernalia, and 4) whether it was accessible.

The Third Circuit found that the defendant’s guns suggested they were connected to his drug activities. Additionally, the guns were loaded and they were accessible to the defendant. As such, the Third Circuit found that the connection between the guns and the defendant’s drug offense was not “clearly improbable” and therefore his appeal is denied and he will be forced to serve his sentence.

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