PA Superior Court: Police May Conduct Warrantless Inventory Search of Car if Necessary

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thompson. The Court held that the recent decision in Commonwealth v. Alexander, in which the Pennsylvania Supreme Court reinstated the requirement that police get a search warrant before searching a car, did not eliminate the inventory search exception to the warrant requirement. Under Thompson, when the requirements of the inventory search exception are met, the police may search a car without a warrant. The Court left open the issue of whether the exception may apply when the owner of the vehicle could potentially make other arrangements for the safekeeping of their property.

The Facts of Commonwealth v. Thompson

On July 1, 2020, police and medical personnel were dispatched to an AAMCO station for a report of an unconscious person in a vehicle. When the Marple Township Police Department arrived, EMT personnel were speaking to the defendant, whose vehicle was blocking two or three other cars. Police spoke to the defendant and concluded that he appeared lethargic, stumbled as he walked, and was slurring his speech. Police determined that he was incapable of operating the vehicle, and they decided to tow the car. Per departmental policy, they performed an inventory search of the vehicle to record its contents, and of course, they found a firearm. They charged the defendant with persons not to possess a firearm (VUFA § 6105).

The defendant moved to suppress the firearm, arguing that the police were required to obtain a search warrant prior to searching the vehicle. The trial court denied the motion to suppress after concluding that the police properly conducted an inventory search of the car which did not require a search warrant. The defendant was then found guilty of the charges, and he appealed.  

The Superior Court Appeal

On appeal, the defendant argued that the Court’s decision in Alexander requiring a search warrant for the search of a car eliminated the inventory search exception. In response, the Commonwealth argued that Commonwealth v. Alexander dealt only with searches for evidence of a crime, and therefore it did not have any relevance in whether the inventory search remains a proper exception to the warrant requirement when dealing with an automobile.

What is an inventory search?

When the police have to tow a vehicle, they are permitted to conduct an inventory search of the vehicle. An inventory search is permissible when 1) the police have acted lawfully in impounding the vehicle and 2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. Often, the challenge to an inventory search will involve challenging whether police really needed to tow the vehicle or whether they could have safely parked it or released it to someone else. In this case, the question was whether the inventory search still applied post-Alexander.  

The Superior Court’s Decision

The Superior Court affirmed the denial of the motion to suppress. The court recognized that the law contains many exceptions to the warrant requirement. In other words, many searches may be allowed even where the police do not get a search warrant. Some examples include a search due to exigent circumstances, a search for weapons for officer safety, a search where contraband is in plain view, and in this case, the inventory search exception.

Here, the court concluded that Alexander did not eliminate the other exceptions that applied prior to the decision. Instead, it only held that where police are going to search a car for evidence of a crime, they must get a search warrant or have exigent circumstances and probable cause. As an inventory search theoretically has nothing to do with searching for contraband or evidence of a crime, Alexander did not make that type of search illegal.

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. An inventory search falls under “community caretaking” and thus does not require any showing of probable cause or reasonable suspicion at all. Therefore, the police were not required to have probable cause, and they were allowed to search the vehicle in order to ensure that it did not contain anything dangerous and in order to protect the defendant’s belongings.  

The Superior Court, however, did leave the door open to the idea that an owner could object to the inventory search or make other arrangements for moving the vehicle. This is based on the theory that inventory searches are done on the behalf of the property owner, to protect it while in custody, and shield police from disputes or claims of lost or stolen property. There could also be privacy interests at stake, in which the individual’s privacy interest outweighs the government’s interests. These arguments were not raised in this appeal, so the Superior Court did not rule on them. Obviously, the inventory search exception is ripe for abuse - police who want to search a vehicle but who don’t have probable cause for a search warrant can simply claim that it was necessary to tow the vehicle for some reason, and then they are permitted to conduct a warrantless search. Therefore, as previously mentioned, motions to suppress in these cases often involve challenging whether it was really necessary to tow the vehicle.

FACING CRIMINAL CHARGES? WE CAN HELP.

Criminal Defense 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. 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.

Attorney Goldstein Wins Motion to Suppress Firearm

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently won a motion to suppress a firearm in the case of Commonwealth v. M.K. In M.K., the defendant was arrested and charged with possession of a firearm by a prohibited person (VUFA § 6105), possession of a concealed firearm without a license (VUFA § 6106), and carrying a firearm on the streets of Philadelphia (VUFA § 6108). Officers claimed that they received a radio call for a shooting in North Philadelphia. While surveying the area, the officers saw a white Chevy Malibu stopped at a stop sign. The officers claimed that it was unusual that the car waited for them to go first though the intersection because the Malibu had arrived at the intersection before them. They therefore started following the vehicle.

While following the vehicle, the officers ran the plate. When the plate did not come back as registered in the NCIC database, the officers stopped the car. They also claimed that they stopped the car because the license plate had a tinted plastic cover on it. When they got up to the car, they began questioning M.K. about whether he had ever been arrested before. As they were questioning him, they received more flash information that a silver Chevy sedan may have been involved in the shooting. Deciding that white and silver could be close enough, the officers decided to detain M.K. After a brief struggle, they removed M.K. from the car, handcuffed him, and placed him in the back of the patrol car. They then found a gun sticking out from underneath the driver’s seat. The officers formally arrested him, and the Philadelphia District Attorney’s Office charged him with the various firearms offenses.

M.K. retained Attorney Goldstein after his prior attorney was unable to have the charges dismissed at the preliminary hearing. Attorney Goldstein reviewed the discovery and the police body camera and immediately filed a motion to suppress. The trial judge in the Philadelphia Court of Common Pleas held a hearing on the motion to suppress. At the motion, Attorney Goldstein argued that police had stopped the car without reasonable suspicion or probable cause because the car was properly registered and the license plate cover was not actually tinted. He also argued that the police had illegally extended the stop by asking M.K. questions that had nothing to do with the purpose of the stop. That purpose was supposedly to investigate the license plate issues.

Through cross-examination, Attorney Goldstein confirmed that the police stopped the car only because of the allegedly tinted license plate cover. He also showed that the officer had not mentioned that the license plate was not producing any results in NCIC in any of the police paperwork. He then argued that the gun should be suppressed because the police had no legitimate reasonable suspicion for stopping the car. On cross examination, the officer confirmed that the car was in fact properly registered and that the system does not always produce results for recently purchased vehicles. Attorney Goldstein also introduced photographs which showed that although the license plate had a plastic cover on it, the plate number was still easily readable.

The Commonwealth argued that any cover at all on a license plate was illegal at the time of the stop, but the after reviewing the motor vehicle code, the trial judge agreed that not only did the plate have to be tinted, it also had to be difficult to read it from a reasonable distance. Here, the photos obtained by Attorney Goldstein showed that the plate was readable, and it was clear that the car was in fact properly registered. Therefore, there was no legitimate reasonable suspicion or probable cause that would support the stop of the car. It also did not help the Commonwealth that the officers had stopped a white car and arrested the driver when the radio call was for a silver sedan. The Common Pleas judge agreed with the defense, finding that the police did not have a basis to make the the stop. As the stop was illegal, anything that was recovered as a result of that illegal stop must be suppressed, leaving the Commonwealth with no evidence to pursue the charges. The Court therefore suppressed all of the evidence against M.K.

It is important to note, however, that this stop took place before a recent change in the law. Under the current motor vehicle code, any tint on a license plate may be the basis for a car stop and a citation. The exact meaning of tint is up for debate in terms of whether any type of covering automatically counts as tint, but the legislature has made it easier for the police to pull a motorist over in a situation like this. Fortunately, Attorney Goldstein recognized that the law had changed and that the Court would have to apply the law that was in effect at the time of the stop. Therefore, the court granted the motion to suppress.

Facing criminal charges? We can help.

Philadelphia 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 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.

PA Superior Court: Police May Enter Car To Retrieve Ghost Gun Without Warrant If Gun In Plain View

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Malik Smith, overturning a previously granted motion to suppress relating to the search of a vehicle from which the police found a “ghost gun.” The Superior Court concluded that the trial court should not have suppressed a gun found in a car pursuant to a warrantless search of that car because the police properly entered the car under the “plain view” exception to the warrant requirement.

The Facts of Com v. Malik Smith

The defendant was pulled over in his vehicle for operating the vehicle with excessive tint on the windows in violation of the Motor Vehicle Code. The defendant was the lone occupant of the vehicle and was directed to roll down all the windows. As Officers approached the vehicle, one of the Officers observed a firearm on the rear floorboard. The officers ordered the defendant to exit the car, put him in handcuffs, and put him in the back of the police car. The defendant did not have a license to carry and was eventually charged with various violations of the uniform firearms act (VUFA). Prior to trial, the defendant moved to suppress the gun, arguing that police should have obtained a search warrant prior to the search and that the search was not legal under the plain view exception to the warrant requirement because the police did not know if the defendant had a license to carry. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court’s Ruling on Appeal

The Superior Court reviewed the legal conclusions de novo, limited by the factual findings of the trial court. In its review, the court determined that the plain view doctrine allowed for the seizure of the firearm without a warrant. The Superior Court prefaced this determination based on a previous case Commonwealth v. Collins, 950 A.2d 1041 (Pa. Super. 2008). In Collins the court set out a three-pronged standard: “(1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.”

First, the Superior Court determined that the traffic stop was lawful and thus when the officer observed the firearm, it was from a lawful vantage point. The traffic stop for the window tint was justified because window tint violates the Motor Vehicle Code. Therefore, police had the authority to conduct the initial stop and pull the vehicle over.

Second, the court reviewed the second factor of whether it was immediately apparent that the firearm was incriminating - in other words, was it obviously illegal or some kind of contraband. In Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), the Pennsylvania Supreme Court ruled that possession of a firearm is not enough to infer criminal activity. When the officer observed the firearm, however, based on his years of experience, he was able to see that it had been modified, and was a “ghost gun.” Using a totality of the circumstances approach, the Superior Court determined that the incriminating nature of the firearm must have been immediately apparent, meeting the second prong. This factor is the most dubious under Hicks, but ghost guns are generally not legal in Pennsylvania, so had the officer not been able to tell that it was a ghost gun, the court might have reached a different conclusion. Finally, the court found probable cause to believe a crime had been committed based on the incriminating appearance of the firearm. Because the officer lacked advance notice and an opportunity to obtain a warrant, the officer had a lawful right to access the firearm and conduct a search.

Having met the three prongs needed to meet the plain view exception, the Superior Court determined that the seizure was lawful and did not violate the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. It therefore reversed the order of the trial court and remanded the case for trial. This case unfortunately represents a step away from the broad privacy rights granted by the Supreme Court in Commonwealth v. Alexander and Commonwealth v. Hicks. In Commonwealth v. Alexander, the Supreme Court held that police should get a search warrant prior to searching a car. In Hicks, the Court held that police may not assume that someone is possessing a gun illegally because many people possess firearms perfectly legally under the Second Amendment. Now, however, the Superior Court has begun to carve out significant exceptions to these two basic principles to the detriment of the defendant in this case and to the rights of citizens everywhere to be free of warrantless searches.

Criminal Defense Lawyer Zak Goldstein

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 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.

PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.

Commonwealth v. Bieber

A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.

At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.

VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.

The Facts at Trial

The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.

Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.

Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.

The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.

During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.

The defendant again filed a timely notice of appeal.

The Pennsylvania Superior Court’s Decision

On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.

The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.

The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.

There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.

Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.

The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.

Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.

The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.

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. 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.