Philadelphia Criminal Defense Blog

Zak Goldstein 3/16/24 Zak Goldstein 3/16/24

PA Superior Court: Police May Drive Defendant’s Car to Secure Location While They Get Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Floyd, granting the Commonwealth’s appeal and holding that the trial court erred in granting a motion to suppress drugs and guns where a Philadelphia police officer testified that he saw the defendant engage in two hand-to-hand transactions. The Court also held that the officers did not violate the defendant’s rights by driving the defendant’s car to a secure location to await the signing of a search warrant.

The trial court had granted the motion to suppress, finding that the police should not have driven the car themselves before they got the warrant and that the two alleged hand-to-hands did not provide probable cause to arrest the defendant and search the car. The Superior Court disagreed. The crux of the appeal was the admissibility of evidence seized from Floyd's vehicle following his arrest for alleged involvement in illegal narcotics transactions.

A member of the Philadelphia Police Department’s Narcotics Strike Force observed the defendant engage in suspicious transactions on September 9, 2021. The defendant was seen accepting money from two individuals and then handing them small objects. He went in and out of the car in question before each alleged transaction. One of the alleged buyers was not stopped, so the police could not confirm whether that person had purchased drugs. The second person, however, was stopped and searched by police, and she had containers of crack cocaine on her.

Based on these observations, the police arrested and searched the defendant. They also obtained a search warrant for his vehicle. Instead of having a tow truck move the car, one of the officers drove the vehicle to a secure location while they obtained the search warrant. They claimed that they did not actually search the vehicle en route to that location or before they got the warrant. The eventual search of the car resulted in the discovery of drugs and a gun with an obliterated serial number.

The defense challenged the seizure and subsequent search of Floyd's vehicle, filing a motion to suppress and arguing that the police's initial warrantless entry into the vehicle, to move it to a secure location pending the approval of a search warrant, violated the defendant’s constitutional rights. The trial court agreed and suppressed the evidence obtained from the car.

On appeal, the Superior Court held that the police action was justified under statutory authority, which allows for the seizure and relocation of a vehicle under certain conditions, such as when the vehicle's owner or user is in police custody, the vehicle is on public property, and there is probable cause to believe the vehicle contains evidence of a crime. The court found that the evidence had an independent source—the observations made by Officer Outterbridge prior to the vehicle's relocation—which validated the search warrant and the subsequent discovery of the narcotics and firearm.

The statute that allows the police to move a car under certain conditions is 75 Pa.C.S. § 3352(c), specifically subsection (c)(3). This provision is part of the Pennsylvania Vehicle Code and grants police officers the authority to remove or cause to be removed a vehicle to a place of safety or to the place of business of the operator of a wrecker or a nearby garage under the following circumstances:

The vehicle has been reported stolen or taken without the consent of its owner.
The person or persons in charge of the vehicle are physically unable to provide for its custody or removal.
The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.
The vehicle is in violation of section 3353 (relating to prohibitions in specified places), except for overtime parking.
The vehicle has been abandoned, as defined in the title.

In this case, subsection (c)(3) was particularly relevant. This subsection applies when the person in control of the vehicle is arrested for an offense requiring that they be brought before an issuing authority without unnecessary delay. The statute gives police the authority to remove the vehicle to ensure its safety and the integrity of potential evidence, especially when the vehicle is on public property and there exists probable cause to believe it contains evidence of a crime.

Here, the Superior Court reasoned that the courts have held for about 15 years that one observation of a hand-to-hand transaction in a designated enforcement area or high crime area provides experienced narcotics officers with probable cause to stop a suspect and search them. In this case, the officer testified to seeing two hand-to-hand transactions. The first person had not been stopped, and the second person testified at the suppression hearing that she in fact had drugs on her but did not buy them from the defendant. Unfortunately, she did not testify that she did not in fact give anything to receive anything to or from the defendant. She just said she did not get the drugs from him. And the police testified that the defendant went in and out of the car before both alleged transactions. Thus, the Superior Court found probable cause to arrest the defendant and search him as well as to support the search warrant for the car. Based on the above statute, the police then had the right to move the car. Although it is better for them to use a tow truck to move the car, the statute does not explicitly direct that the police may not move it themselves.

This case presents two problems for the defense.

The Takeaway

First, this was really a credibility motion to suppress. The defense strategy was clearly to argue that the officer had not actually seen two drug transactions given that the defense called a witness, one of the alleged buyers, to say that she did not actually buy drugs from the officer. The trial judge, however, did not explicitly say that they were ruling based on credibility. If the trial judge had put a credibility ruling on the record and indicated that they did not believe the officer’s testimony, then it would have been virtually impossible for the Commonwealth to appeal. The judge, however, did not do that.

Second, the defense witness was not asked whether or not she gave anything to the defendant or took anything from him. This allowed the Superior Court to reason on appeal that she may have had an interactions with the defendant that looked like a drug transaction even if her testimony that she did not buy drugs from him was true. Probable cause looks at what a reasonable officer would believe in terms of whether they would find evidence or believe they had observed a crime – it does not require proof beyond a reasonable doubt that a crime actually occurred. Therefore, the Superior Court was able to grant the Commonwealth’s appeal. This ruling therefore highlights the importance of really arguing credibility and asking for a clear ruling on that issue if the basis of the motion is credibility and also making sure that the witnesses are asked the right questions during the hearing.

Finally, the case allows police behavior which is ripe for abuse. It is difficult to believe that narcotics officers, who typically do not wear body cameras in Philadelphia, would not at least look around the car a little bit while driving it to the station, and the next case will probably involve some claim by police that they had to do an inspection to make sure there was nothing that could harm the officer during the drive. The law is clear that police must get a warrant before searching a car absent a limited number of exceptions which did not apply here, but here, the officer drove the defendant’s car before the police got the warrant. To really comply with the rules, they should have had a tow truck tow the car. Hopefully, the defendant will pursue further appeals on this issue.

Facing criminal charges or appealing a criminal case? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

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Zak Goldstein 3/12/24 Zak Goldstein 3/12/24

Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

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Zak Goldstein 10/30/23 Zak Goldstein 10/30/23

PA Superior Court: Police may search you to figure out who you are if you’re having a medical emergency

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Williams, holding that police did not illegally search the defendant and his bag where the search was not for evidence but instead to try to figure out who he was and why he was found unconscious on a public street.

The Facts of Williams

In Williams, the the police received a call for an unconscious male. They arrived at the location in the call, and they found the defendant unconscious in the driver’s seat of a blue Dodge Durango with the driver’s side door open. He was sort of halfway hanging out of the vehicle. One of the officers also saw several pill bottles on the sidewalk nearby and a large amount of money on the ground.

The police got him to wake up a little bit, but he seemed too intoxicated to answer any questions. He had slurred speech and did not appear to understand the police. The police were unable to get his name, and he needed assistance to exit the vehicle and sit on the ground. The defendant continued to mumble incoherently and state that he did not want to get shot.

The police were unable to get get his name and date of birth from him, so they asked him if they could search the car. He said yes. The police recovered blue pill bottles containing marijuana and $12,500. The officers also smelled marijuana coming from a backpack which was next to him on the ground. They searched the backpack and found a gun. The defendant did not have a license to carry and had prior convictions that prohibited him from carrying a gun, so the police arrested him and charged him with possession of drugs and guns.

The Motion to Suppress

The defendant moved to suppress the physical evidence. He argued that police should have obtained a search warrant before searching his backpack and that they lacked the probable cause and exigent circumstances necessary for a constitutional search. The trial court denied the motion to suppress and found the defendant guilty. It sentenced him to 4 - 8 years’ incarceration followed by 18 months’ probation. The defendant appealed.

The Pennsylvania Superior Court Appeal

The Superior Court affirmed on appeal. The Court found that the officers did not need a search warrant because they were responding to an emergency. The defendant was incapacitated, incoherent, and may have been in the midst of a medical emergency. The police did not know who he was or what was going on, and he appeared to need help. Given that the police were trying to figure out who he was and what medical conditions he might have rather than looking for evidence, the police were performing under the community caretaking function.

This exception allows the police to conduct a search or seizure where necessary to help someone during an emergency. In other words, the police do not have to wait for someone to die of an overdose or other medical condition; they can perform basic searches in order to try to help someone.

Here, the Superior Court found that that was what the police were doing rather than searching for evidence. As they found the evidence while responding to the emergency, they did not have to ignore what was obviously incriminating.

Further, the Court concluded that the evidence was also subject to the search incident to arrest exception. Once they found the defendant with marijuana and a large sum of money, they had the right to finish searching him incident to arrest for possession of narcotics. Therefore, the Superior Court denied the appeal.

The Take Away

Ultimately, if you’re going to possess contraband and illegal weapons, it’s best to try to stay conscious and avoid needing medical attention while committing serious crimes. The case law is clear that the police can and probably should respond to help people with medical emergencies, and when the police are responding to an emergency in good faith, they usually do not have to obtain a search warrant. Exigent circumstances (a real emergency) are almost always an exception to the warrant requirement, and so the Superior Court denied the appeal. The defendant’s sentence will stand for now.

It was always unlikely that the court would grant a motion to suppress in this situation. Instead, the better defense was probably to argue that the contraband could have belonged to someone else. Perhaps the defendant’s companion, realizing that the defendant had become too intoxicated to function and that the police were on their way, took off and left the contraband behind rather than encounter the police and get arrested for possession themselves.

The Search Incident to Arrest Exception

Finally, there is some question regarding the search incident to arrest exception, however. The opinion does not make it totally clear where the bag was. If the bag was in fact outside of the car, then the exception likely applies. But if the bag was in the car, then that exception should not have applied. The search incident to arrest exception allows the police to search someone incident to arrest to make sure the person does not have any contraband or weapons, but it does not generally allow them to search a car for evidence.

The United States Supreme Court has held that it only allows a search of a motor vehicle where there is reason to believe the police will find more evidence of the offense of the arrest, but the Pennsylvania Supreme Court requires a search warrant for the search of the car unless the contraband is in plain view. This case probably does not change that analysis much because the case is somewhat confusing and the court relied primarily on the exigent circumstances, but that issue is something to watch.

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Criminal Appeals Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 10/9/23 Zak Goldstein 10/9/23

Third Circuit: Defendant Has Reasonable Expectation of Privacy in Girlfriend's Rental Car

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

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Christopher Montalvo-Flores, finding that the District Court should have found that the defendant had a reasonable expectation of privacy in a rental car he was operating. The evidence from the suppression hearing showed that his girlfriend loaned him the car, but it also showed that he did not sign the rental paperwork and he did not have a driver’s license. Nonetheless, the Court found that he had a reasonable expectation of privacy in the vehicle and therefore could challenge an unlawful search of that vehicle.

The Facts of Montalvo-Flores:

In November 2019, officers executed an arrest warrant at a hotel in New Jersey for Montalvo-Flores, the defendant, in connection with his suspected involvement in a robbery. A search incident to arrest of the defendant yielded keys to an Enterprise rental car that was leased by his girlfriend. Although the defendant insisted that the keys were his, officers had knowledge that the defendant did not have a valid driver’s license. Police officers located the car in the hotel parking lot, they discovered that it was not reported lost or stolen, and they learned that its registered owner was Enterprise Rental Car Company. Earlier that day, police officers observed the girlfriend give the defendant the keys. They also observed the defendant operating the rental car.

Police officers then called Enterprise’s regional risk manager to obtain permission to search the car. The officers told Enterprise’s manager that the defendant was operating the car while involved in criminal activity. The Enterprise manager, noting that the rental contract prohibited the use of the car for criminal purposes and that the defendant was not listed on the rental agreement, purported to give officers consent of the lessee, the girlfriend, to search the car. Inside the car, officers found 304 grams of cocaine in the trunk and $35 in the center console. As a result, the defendant was charged with possession of intent to distribute cocaine in federal court.

The Procedural History

The defendant moved to suppress the cocaine and money that officers recovered after searching the rental car. He argued that he lawfully possessed and controlled the car based on permission to use the car given to him by his girlfriend. In response, the government acknowledged that the girlfriend gave him permission to operate it, but the prosecution asserted that police lawfully searched the car without a warrant because the defendant lacked a legitimate expectation of privacy due to his lack of a valid driver’s license and the fact that he was not listed on the car’s rental agreement. The government also argued that the police had consent from the car’s registered owner, Enterprise, to search the car. The United States District Court held a hearing on the motion to suppress ion order to determine the legality of the search and whether the drugs and money would be admissible at trial.

The Suppression Hearing

During the suppression hearing, the officers acknowledged that the defendant’s girlfriend rented the car and that the defendant possessed the keys. Detective Holmes, the main witness for the government, testified that prior to the search, fellow officers observed the girlfriend giving the defendant the car and that fellow officers observed the defendant operate the car. The government also acknowledged the defendant’s possession of the car when a witness for the government testified that he called Enterprise and told the agent that the person operating the car did not have a license, had warrants, and was part of an armored truck robbery. The officers used the keys to open the car and found the cocaine and cash that the defendant moved to suppress after the Enterprise agent gave permission to search.

The District Court denied the defendant’s motion to suppress, holding that he lacked standing because he failed to establish a reasonable expectation of privacy. The District Court based its opinion on Byrd v. United States, 138 S. Ct. 1518 (2018). The District Court concluded that, contrary to evidence given at the suppression hearing, the defendant “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.” After the denial of the suppression hearing, the Defendant proceeded by way of stipulated bench trial. The District Court found him guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He was sentenced to 40 months of incarceration followed by three years’ supervised released. He appealed to the United States Court of Appeals for the Third Circuit.

The Third Circuit’s Ruling

The United States Court of Appeals for the Third Circuit reversed. It found that the defendant had a reasonable expectation of privacy in his girlfriend’s rental car. The Court of Appeals opined that there was clear error in the District Court’s factual finding that the Defendant “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.”

The Court began by citing Katz v. United States, 389 U.S. 347, 361 (1967) in explaining that when making a reasonable expectation of privacy analysis, a trial court must begin with a two-prong approach to determine first, whether the defendant “exhibited an actual (subjective) expectation of privacy, and second, whether his expectation was one that society is prepared to recognize as “reasonable.” The Court noted that the defendant bears the burden of proving each element.

In finding a reasonable expectation of privacy, the Third Circuit based its opinion on the unrebutted testimony of the detective. That testimony showed the defendant proved the first prong when the officers took his keys from him and he exclaimed “those are my rent-a-car-keys!” Officers needed the keys to open the locked car parked outside his hotel. This showed that the defendant believed he had privacy in the car and took steps to preserve his privacy.

During its analysis of the second prong, the Court explained that when deciding whether the expectation of privacy is reasonable, a must make a fact-based analysis dependent on the strength of the defendant’s interest in the car and the nature of his control over it, noting that ownership is not necessary. The Third Circuit cited a case where the Supreme Court held that “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Noting that “one who . . . lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” The Appeals Court listed several facts to show that the defendant’s expectation of privacy was reasonable, noting: the lessee, the girlfriend, was the defendant’s girlfriend; she gave the car’s keys to him; he possessed the keys when arrested; the car was parked outside his hotel room; it was locked; and he was observed by police possessing and operating it. The Court reasoned that the context strongly suggested that the defendant had dominion and control of the car with his girlfriend’s permission finding the District Court’s determination was clear error.

Because the Appeals Court found the defendant had a reasonable expectation of privacy in the car, the government needed to justify its warrantless search at the suppression hearing by showing probable cause to search the car. The Appeals Court vacated the defendant’s conviction and the denial of his motion to suppress, and it ordered the case be remanded for further proceedings. This case demonstrates the fact-specific nature of suppression hearings and how a good attorney can establish a legitimate privacy interest through tactical cross-examination. This ruling shows that while a defense attorney may do a good job through skillful cross-examination in establishing a legitimate privacy interest of the defendant, trial courts do not always make the proper rulings. This case recognizes that while the initial battle may be lost the war for innocence does not stop at “guilty.”

Facing criminal charges or appealing a conviction in state or federal court? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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.