Philadelphia Criminal Defense Blog

Zak Goldstein 8/8/23 Zak Goldstein 8/8/23

PA Superior Court: Police May Search Car and Defendant Without Warrant When Defendant Has Gun and Drugs in Plain View

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, affirming a Philadelphia trial court’s finding that police officers had reasonable suspicion to believe that the defendant was in possession of illegal narcotics and a firearm where the defendant was sitting inside of a car that police believed to be abandoned with drug paraphernalia in plain view, the odor of burnt marijuana emanating from the car, and the outline of what police believed to be a gun in his pocket. Although the Pennsylvania Supreme Court recently granted allocatur on the issue of whether the plain view exception to the warrant requirement applies to automobiles, The moral of the story is that it is ill-advised to keep your guns and drugs in plain view where the police can see them.

The Facts of Green

On June 1, 2019, two Philadelphia Police officers were on routine patrol in a marked police vehicle and investigating complaints of narcotic sales and illegally parked vehicles near the West Poplar Apartment Complex. One officer was familiar with the housing complex as he had worked in that district for more than ten years and made numerous narcotics and firearms arrests in that apartment complex and area. One of the officers noticed a white Chevy Malibu he believed had been parked in the complex, unmoved, for about two weeks. The officers pulled up to investigate the vehicle, believing that it may have been abandoned. The officers approached on foot, noticed the vehicle’s inspection stickers were peeling off and it had damage to the body of the vehicle. They smelled the odor of burnt marijuana emanating from the car. The vehicle had tinted windows, and as one officer went to the front to look through the windshield, he noticed the defendant in the front passenger seat fully reclined. The officer then noticed small vials and plastic baggies, which he recognized to be consistent with narcotics packaging for crack cocaine, as well as “blunt guts” scattered around the vehicle.

As the officer took a closer look at the defendant through the windshieled, he noticed the outline of a firearm in the front pocket of the defendant’s tight-fitting sweatsuit. The officer could see the entire imprint of the firearm. That officer notified his partner he believed he saw a firearm and radioed for backup.

One police officer attempted to speak with the defendant by knocking on the windshield and requesting that the defendant step out of the vehicle and provide paperwork. The defendant opened his eyes slightly and then closed them again as if he were checking if the officers were still there and then pretending to be asleep. The police were unable to get him to respond.

The officers attempted to make contact for fifteen minutes. They were on the verge of calling for a SWAT team, but their supervisor directed them to break the windows and pull the defendant out of the car. They did so, and they recovered a 9mm pistol from the defendant and placed him under arrest.

The Criminal Charges

The defendant was charged with carrying a firearm without a license and carrying a firearm on the public streets of Philadelphia without a license (VUFA § 6106 and § 6108). Both these offenses are violations of the Uniform Firearms Act. The defendant filed a motion to suppress the firearm, and the trial court denied the motion to suppress. The judge found him guilty following a bench trial, and he appealed.

The Superior Court’s Ruling

On appeal, the defendant argued that the trial court should have granted the motion to suppress. First, the Court explained the typical rules that may apply to this type of police encounter. Pennsylvania Courts have developed three categories of interactions between citizens and police officers to better determine if an individual’s rights are being infringed. The categories are:

1) a “mere encounter” (or request for information) which need not be supported by any level of suspicion but is not an order and can be completely ignored.

2) an “investigative detention” which must be supported by a reasonable suspicion; it subjects the individual to a stop and a period of detention but does not rise to the level of the functional equivalent of arrest, and

3) “custodial detention,” or the functional equivalent of an arrest, which must be supported by probable cause.

A person is subject to an investigative detention, which requires reasonable suspicion, when a reasonable person in their position would not feel free to leave.

In this case, the Superior Court concluded that the officers did not need any level of suspicion to approach the parked car on foot, but they needed reasonable suspicion to break the windows and pull the defendant out of the car. The Court, however, found that they had reasonable suspicion based on the totality of the circumstances - the defendant was in a car which had numerous obvious motor vehicle code violations, there was drug paraphernalia in plain view, he pretended he did not see the police even though he opened his eyes, and he also had a gun on him.

Accordingly, the police were justified in breaking into the car and removing him from the vehicle. Whether or not the police may retrieve contraband from a car when the contraband is in plain view is still an open question; as previously mentioned, the Pennsylvania Supreme Court recently granted review on that issue. So far, however, the Superior Court has repeatedly held that police may enter a car to retrieve obviously visible contraband even without a search warrant. The police ordinarily may not search a car without a warrant, but when guns and drugs are out in the open, the police may not need to get a warrant.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

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. We have also won criminal appeals and PCRAs in state and federal court. 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 5/25/23 Zak Goldstein 5/25/23

Attorney Goldstein Wins Re-Sentencing on Appeal for Client Who Received 35 Years for Drugs

Criminal Appeals Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won a new sentencing hearing for a client who received 17.5 - 35 years’ incarceration followed a conviction for possession with the intent to deliver in Blair County, PA. The client was originally charged with drug delivery resulting in death, possession with the intent to deliver, criminal use of a communications facility, and recklessly endangering another person. The jury convicted him only of the PWID, CUCF, and REAP. It did not convict him of the homicide. Nonetheless, the trial judge imposed a sentence of 17.5 - 35 years’ incarceration for PWID even though the Commonwealth’s pre-trial offer had been for a jail term of less than half of that on the homicide charge. The client retained Attorney Goldstein for appeal, and the Superior Court vacated the sentence. It is rare for an appellate court to determine that a sentence should be vacated purely because it was excessive, but in this case, Attorney Goldstein was able to convince the Superior Court that the sentence was far too much. The Court found that the sentence was clearly excessive and remanded for a new sentencing hearing. Learn more here.

Facing criminal charges? We can help.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 5/12/23 Zak Goldstein 5/12/23

PA Superior Court: COVID Speedy Trial Rule Suspensions Are Absolute Even if the Prosecutors Took Two Years Off

The Pennsylvania Superior Court has decided the case of Commonwealth v. Malone, holding that the COVID-related suspensions of Pennsylvania’s speedy trial rules are absolute no matter how little the Commonwealth did to try to move a case forward during the suspension.

In Malone, the Philadelphia Court of Common Pleas dismissed the defendant’s aggravated assault and possession with the intent to deliver case due to a violation of Rule 600. The court found that the Commonwealth failed to bring the defendant to trial for nearly two years and that the Commonwealth had failed to act with due diligence during that period. The Philadelphia courts suspended Rule 600 from March 2020 to October 1, 2021 due to COVID, but the trial court ruled that the Commonwealth would be entitled to the benefit of the suspension only if the Commonwealth had acted with due diligence during the relevant time periods. Because it had not, the time still counted, and the court dismissed the charges.

What is Rule 600?

Rule 600 is a state court speedy trial rule which requires the Commonwealth tho bring a defendant to trial within 365 days from the filing of the criminal complaint. Unfortunately, Rule 600 in general has a lot of exceptions. Time not attributable to the negligence of the prosecution generally often does not count. For example, continuance requests from the defense, the unavailability of a judge to hear the case, or even a police officer’s failure to appear for a good reason may result in the time between two court dates being excluded from the 365 day limit. In other words, time between hearings that is not really the prosecution’s fault does not count so long as the prosecution acted with reasonable due diligence in attempting to move the case forward to trial.

In March 2020, the Pennsylvania Supreme Court suspended Rule 600 as courts throughout the state shut down due to COVID. The Supreme Court lifted its suspension shortly thereafter, but it gave president judges for each county the authority to extend the suspension locally. Some counties, like York, began operating normally almost immediately. Others, like Philadelphia and Montgomery County, did not resume normal operations for nearly two years and are still struggling with COVID-related backlogs. Accordingly, Philadelphia’s president judge left the suspension in effect until October 1, 2021.

The Superior Court’s Ruling

The issue in this case, therefore, was whether the general rule that the Commonwealth must act with due diligence in order for the time between court dates to not count trumps the speedy trial rule suspension or whether the suspension of the rule was absolute. In this case, the Superior Court ruled that the suspension was absolute and the Commonwealth had absolutely no obligation to do any work on its cases during the nearly two year period that Philadelphia suspended the operation of Rule 600. Therefore, the Superior Court reversed the decision of the trial judge and reinstated the charges. It seems reasonable to expect the prosecution to have monitored its cases and worked to get them ready during the shut downs, but the Superior Court has ruled that they had no obligation to do so.

The defendant will now again face trial in the Court of Common Pleas. Given that the case is now more than three years old, the Commonwealth will likely struggle to prosecute the defendant, but further litigation will follow.

Facing criminal charges? We can help.

Criminal defense attorney Zak T. Goldstein, Esquire arguing before the PA Supreme Court

Zak Goldstein 5/3/23 Zak Goldstein 5/3/23

PA Superior Court Approves of Consolidation of Unrelated Drug Case With Drug Delivery Resulting in Death Case

The Superior Court has decided the case of Commonwealth v. Shackelford, holding that the trial court properly allowed the Commonwealth to consolidate the defendant’s possession with the intent to deliver case with his drug delivery resulting in death case. Police executed a search warrant at the defendant’s house in order to investigate a drug delivery homicide, and when they did so, they found a significant quantity of drugs. The drugs obviously could not have caused the decedent’s death as the death occurred prior to the execution of the warrant, but the trial court allowed the Commonwealth to try the cases together. The Superior Court affirmed, holding that the discovery of drugs during the execution of the search warrant would have been admissible in the homicide prosecution. The Court also rejected the defendant’s suppression challenge, finding that a reliable confidential informant provided sufficient probable cause for police to obtain a search warrant.

Commonwealth v. ShackelFord

In April 2021, the decedent was found unresponsive on her bathroom floor. She died in the hospital a few hours later, and police quickly began investigating her death as a potential drug delivery resulting in death homicide. The coroner subsequently determined that the cause of the woman’s death was combined drug toxicity. In her house, detectives located, among other things, cocaine, heroin laced with fentanyl and tramadol, associated drug paraphernalia, and the woman's cellphone. A search of her cellphone revealed that on the night before her death, she had been communicating with a number ending in "7678.” The number was labeled in her phone contacts as "Jazz." Detectives identified the phone number as belonging to the defendant. Fortuitously for the police, investigators were already investigating the defendant for dealing drugs. Investigators found a text message thread between the woman and the defendant which included a request from her to buy drugs. The texts also included messages between the two outlining when and where they would meet.

Detectives spoke with a confidential informant, and the CI told them that the defendant was known to sell drugs. Police thereafter executed a search warrant at the defendant's home based on information from the confidential informant. The police found approximately $7,900 in U.S. currency, over 250 wax paper bags of packaged fentanyl mixed with heroin, over 80 grams of methamphetamine, and quantities of cocaine and marijuana. The defendant later admitted to selling drugs and selling specifically to the woman who died. The Commonwealth filed two sets of charges against the defendant. The first case charged drug delivery resulting in death and criminal use of a communication facility in April 2021. The second case charged possession with intent to deliver fentanyl, possession with intent to deliver methamphetamine, possession of marijuana, and possession of drug paraphernalia for the contraband found in his home in August 2021.

The Commonwealth filed a motion to consolidate the cases and try them together. The defendant filed a motion to sever the cases and suppress the evidence found in his home, arguing that the police did not have probable cause for the search. The trial court heard the motions and denied both of them. In June 2022, the court held a consolidated jury trial on both cases. The defendant was found guilty of drug delivery resulting in death, criminal use of a communication facility, and two possession with intent to deliver charges. The trial court sentenced the defendant to an aggregate incarceration term of 11 – 25 years’ incarceration.

The Criminal Appeal

On appeal, the defendant raised two issues: (1) did the trial court err by failing to find that the search warrant lacked probable cause, and (2) did the trial court err by failing to order separate trials? In the first issue, the defendant argued that the search warrant was issued without probable cause, claiming that the CI’s claims were not credible. He argued that the trial court incorrectly decided the motion, and so all of the evidence obtained in the search should have been deemed inadmissible for trial.

The Superior Court’s standard of review on this issue is limited to the evidence presented at the suppression hearing. At a suppression hearing, the Commonwealth must prove that it did not obtain the challenged evidence in violation of the defendant's rights. The prosecution must prove this by a preponderance of the evidence. A preponderance of the evidence is the lowest burden of proof and requires the Commonwealth essentially to show that it is more likely than not that they did not violate the defendant’s rights. Further, in the absence of an allegation that the police lied in the search warrant, challenges to a search warrant are based solely on the information in the document's four corners. In determining probable cause, the courts utilize a totality of circumstances approach. Probable cause exists where the facts and circumstances are reasonably known and from a trustworthy source and a prudent person of reasonable caution would believe there is a possibility that evidence of a crime could be found in the location to be searched.

The Superior Court agreed with the trial court that the warrant established probable cause. The court reasoned that past information from the CI in question led to two felony convictions. The court further noted that the CI had engaged in an undercover drug purchase from the defendant and that the police had conducted independent surveillance to corroborate the CI’s information. Therefore, the Superior Court agreed with the trial court's assessment that the CI was credible and the warrant contained probable cause. The court rejected the suppression challenge.

In addressing the second issue, the defendant argued that evidence that he had drugs in August 2021 had no relevance in a homicide prosecution for events that took place in April 2021. The defendant argued that evidence from one case would not otherwise be admissible in the other and was merely used to smear him as a drug dealer. The Commonwealth argued that the evidence that he was involved in drug sales just a few months later was relevant to show that he could have been engaged in drug sales in April.

In deciding whether to consolidate or sever two separate cases, a court must determine: (1) whether the evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether such evidence is capable of separation by the jury so as to avoid the danger of confusion; and, if so, (3) whether the consolidation of offenses will unduly prejudice the defendant.

The Superior Court noted that the defendant’s argument only focused on the first aspect. The court determined that the evidence of crimes other than those in question may not be admitted solely to show a defendant's bad character or propensity to commit the crime. However, evidence of other crimes is admissible to demonstrate motive, intent, absence of mistake or accident, a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or the identity of the person charged with the commission of the crime on trial. Additionally, evidence of other crimes is admissible when such evidence is part of the history of the case and forms part of the natural development of the facts.

Here, the trial court had reasoned that the cases should not be severed because the cases proved identity, and the discovery of the drugs was linked to the investigation into the homicide, so the events were connected. The Superior Court agreed with the trial court’s opinion, finding that evidence of each offense would have been admissible in a separate trial for the other. Therefore, the Superior Court affirmed.