Philadelphia Criminal Defense Blog

Zak Goldstein 3/10/23 Zak Goldstein 3/10/23

PA Superior Court: Bad Info From Third Party in Search Warrant Does Not Invalidate Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Adorno, holding that a search warrant is still valid even where the warrant contains incorrect information that has been provided by a third party. In this case, the Court found that the police relied on the information provided by a third party in good faith, so they had probable cause for the warrant. The fact that the information turned out to be wrong did not require suppression of the evidence that they later found.

Commonwealth v. Adorno

In this case, police officers discovered a Facebook Live video that showed a user named “Zay-Yaho” dancing while holding a gun and drugs. They identified the user as the defendant and determined that he had a criminal record which prohibited him from possessing a firearm. The officers learned that he lived at a certain address in Lackawanna County, Pennsylvania. They interviewed the landlord of the apartment building, and the landlord confirmed that the defendant lived there. The landlord also told them that the location in the video looked like the suspected address. The police then obtained a search warrant for that address. They executed the warrant, and they found three guns and prescription medication.

The Motion to Suppress

After finding the contraband, the police arrested the defendant. The defense filed a motion to suppress the evidence, and the trial court held a hearing on the motion to suppress. In the motion, the defense alleged that the police conducted a search without probable cause, that the search was based on incorrect information, and that the search exceeded the scope of the search warrant. Essentially, the defendant argued that the evidence should be suppressed because the video did not actually show the location that the police searched. At the hearing on the motion, the officers agreed that there were noticeable differences between the walls and layout of the home that they searched and the home in the Facebook video. Similarly, a friend of the defendant’s testified that the location in the video was her house, not the defendant’s apartment. She had not been aware of the video.

The trial court granted the motion to suppress, finding that police had searched the wrong location because the defendant’s apartment, which was the subject of the warrant, was not the location in the video. The Commonwealth appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the Commonwealth argued that the police properly relied on a validly issued search warrant and that the fact that the warrant turned out to contain incorrect information did not render it invalid. The Superior Court agreed. First, the Court found that there was a nexus between the crime and a home that would justify the search of a home because the video showed the gun in a home. Where a defendant commits a crime on the street, police may not have probable cause to search a come because the police cannot just assume a defendant will store evidence of the crime there. But where the crime is committed in a home, the case for searching a home is stronger.

Second, the Court found the warrant to be valid despite the factual error regarding the location depicted in the video. In order for a court to find a search warrant invalid due to a factual error, the defense must show that the police intentionally included false information or included false information with a reckless disregard for the truth. Here, the defense did not even allege that the police had acted in bad faith by either lying or including the information with a reckless disregard for the truth. Accordingly, the defense failed to meet its burden. This type of motion is often called a Franks motion. Here, the defense had argued only that the information was wrong, but showing that a warrant contains incorrect information is not enough to invalidate a warrant.

Therefore, the Superior Court reversed the order granting the motion to suppress. The defendant will have to face trial in the Court of Common Pleas.

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.

Zak Goldstein 2/17/23 Zak Goldstein 2/17/23

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

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.

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Zak Goldstein 2/8/23 Zak Goldstein 2/8/23

Attorney Goldstein Wins Motion to Suppress Firearm

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.

Zak Goldstein 11/9/22 Zak Goldstein 11/9/22

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

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.

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.