PA Superior Court: Police May Not Use Pretext to Stop Defendant One Month After Drug Sales

Superior Court Enforces Limits on Police Stops

The Pennsylvania Superior Court has just held that in the absence of more recent criminal activity, police may not conduct a Terry stop of a defendant for selling drugs one month after the defendant sold the drugs. In Commonwealth v. Parker, police officers in Lancaster County investigated drug sales in June and July of 2014. During that investigation, the defendant, who police knew only by the street name “Heart,” allegedly sold drugs to an undercover police officer. The officers recorded a description of Heart’s appearance and that he walked with a limp, but they did not attempt to stop or arrest him at that time.

In August, one of the officers from the drug surveillance operation saw the defendant near a local McDonald’s. The officer testified that he was 100% sure that the defendant was “Heart,” meaning he was the same person who had sold drugs to the undercover officer. The officer then made the decision to stop the defendant in order to find out his real name. The officer, however, did not observe the defendant doing anything illegal that day.  

Despite the fact that the defendant had not done anything illegal that day, two officers stopped the defendant as he was walking away from the McDonald’s. One of the officers who stopped him told him that there had been a disturbance at the McDonald’s and that he believed the defendant was part of the disturbance. He asked the defendant for his name, date of birth, address, telephone number, and social security number because the defendant did not have identification on him. After the officers confirmed the defendant’s identity, they released him. The officers agreed at the motion to suppress that the only reason they stopped him was to identify him for purposes of their drug investigation, and one of the officers specifically testified that the stop was part of a “ruse.”

Even Identifying Information Can Be Incriminating

Although the information obtained by police during the stop may seem relatively harmless, it turned out to be very incriminating. Police had used the phone number given by the defendant during the stop to set up the narcotics transactions earlier in the summer. Accordingly, despite learning only relatively basic identifying information, the phone number turned out to be very incriminating because it connected the defendant to the drug sales and increased the likelihood that the police were correct in believing him to be "Heart." 

The Motion to Suppress

Eventually, police arrested defendant Parker and charged him with Possession with the Intent to Deliver and Criminal Use of a Communications Facility. Prior to trial, Parker moved to suppress the information obtained by police during the pretextual stop, including the incriminating phone number. Parker’s attorneys argued that the police did not have reasonable suspicion or probable cause to stop Parker on the day of the incident. The trial court denied the motion to suppress. The trial judge found that the police had reasonable suspicion to stop the defendant because they had seen him sell drugs in June and July. The defendant was eventually convicted of drug charges following a jury trial, and he appealed the denial of the motion to suppress.

Types of Police Encounters at Issue on Appeal

On appeal, the Superior Court reversed the trial court’s denial of the motion to suppress. The court noted that there are three types of police encounters. The most restrictive encounter is a “mere encounter.” A mere encounter does not require any level of reasonable suspicion or probable cause because the suspect is not compelled to stop or searched. Thus, if police had merely encountered defendant Parker, then the information they obtained could not be suppressed because police may conduct a mere encounter without any level of suspicion. 

The next level of encounter is an “investigative detention.” An investigative detention, often called a Terry stop, requires police to have reasonable suspicion. Reasonable suspicion means that the police have specific, articulable facts leading the officer to believe that criminal activity is afoot. Here, the Commonwealth certainly argued that police would have had reasonable suspicion from observing the defendant engaged in drug sales earlier in the summer. Parker's attorneys, however, argued that the police did not have reasonable suspicion because the drugs sales did not take place that day. 

Finally, the most restrictive type of seizure, which was not really at issue in this case, is a full-blown arrest. An arrest requires probable cause, which means the officer is aware of facts making it objectively more likely than not that the defendant committed a crime. Whether or not an arrest has occurred typically involves an analysis of whether a reasonable person in the defendant's position would believe themselves to be under arrest. Some of the many factors in whether a stop is an arrest could include whether police used handcuffs, displayed weapons, told the suspect he or she was under arrest, gave Miranda warnings, or transported the suspect to the police station. 

Investigative Detention

The Superior Court agreed with the trial court that the defendant was subject only to an investigate detention. He was stopped and asked for information, but he was not handcuffed, transported, interrogated for a lengthy period of time, or told he was under arrest. However, he was not free to leave because he was stopped by two uniformed officers who told him that he was suspected of criminal activity and demanded information from him. Although the request for identification alone does not convert a mere encounter into an investigatory detention, the request for identification coupled with the police officers telling the defendant that they suspected him of wrongdoing would lead a reasonable person in his position to feel that he was not free to leave. Therefore, police were required to at least have reasonable suspicion that criminal activity was afoot in order to stop him.

Police Did Not Have Reasonable Suspicion

The Superior Court found that police did not have reasonable suspicion to stop Mr. Parker because although he may have engaged in criminal activity in June, they had not seen him do anything at all on the day that they stopped him. He was simply walking down the street, and his lack of criminal activity prompted the police to invent a pretext that he had been part of a disturbance at the McDonald’s. Accordingly, the results of the illegal stop must be suppressed. Therefore, Parker will receive a new trial in the lower court at which the illegally obtained evidence cannot be introduced. 

Although the opinion is certainly of benefit to Parker and others in similar situations, the Superior Court's reasoning is unclear. The opinion focused almost entirely on whether the stop was a mere encounter or a Terry stop, and the Superior Court failed to fully explain why the police no longer had reasonable suspicion. Clearly, if Parker had sold drugs to the police earlier in the summer, then the police would have had reasonable suspicion and probable cause to stop and/or arrest Parker at that time. Probable cause, however, can become "stale." If police do not act on information quickly enough, then they may no longer be able to act on it. Police may have been able to obtain an arrest warrant for him, but they did not have the right to stop Parker without a warrant more than a month after the prior sales. Further, the court could have been concerned about the police use of lies to justify the stop and interrogation. 

We Can Help With Criminal Charges

If you are charged with selling or possessing illegal drugs, you need an experienced drug charges attorney who can investigate and evaluate your case, determine if your rights have been violated, and provide you with all of the options and a strong defense. You do not have to plead guilty just because the police found drugs on or near you or in a vehicle. The prosecution must prove that the search was legal and that the drugs were yours. We have the experience to challenge them every step of the way. Call 267-225-2545 for a confidential criminal defense strategy session.  

PA Superior Court: If Police Have Probable Cause to Search a Car, They May Search All Containers In the Car

Police May Search Bags and Purses in a Car If They Have Probable Cause to Search the Car

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Runyan, 2017 PA Super 114. In Runyan, the Commonwealth sought reversal of a suppression order which found that police could not automatically search the purse of a passenger in an automobile even where police had probable cause to search the car itself. The Superior Court held that if police have probable cause to search a car, they may search all containers within the car in which they could reasonably expect to find the object of their search. Accordingly, police in Pennsylvania no longer need a search warrant in order to search bags or other containers in a car if they have probable cause for the search of the car. This is true regardless of whether there is any link between the container being searched and the driver of the car. In other words, police may search the purses and luggage of passengers in the car.  

The Car Search

In Runyan, local police officers in Mercer County observed a sedan parked with four occupants in it. Police observed the sedan in an area that the officers described as a high crime, high drug area. The vehicle was parked there late at night, so officers approached the vehicle to see what was going on.

As one of the officers approached the vehicle, he smelled the door of burnt marijuana coming from the area around the vehicle. When he walked up to the passenger side door, he could see a small bag of marijuana on the back seat passenger side floor. Naturally, the officer mentioned the bag of marijuana to the occupants of the car. The driver then attempted to crawl from the front of the car into the back seat and exit the car. At that point, the police officers asked everyone to get out of the car, handcuffed each occupant of the car, and began searching the vehicle.

Upon searching the car, the officer recovered the bag of marijuana which he had seen on the floor. Additionally, he found a number of purses in the car, and the officer searched those purposes. In one of the purses, he found a spoon, syringe, and crack pipe. The spoon had white residue on it, so the officer concluded that he had found drug paraphernalia. In another purse, the officer found a spoon with white residue on it and a number of syringes. That purse, unfortunately, also had the identification card for the defendant, Ms. Runyan.

Possession of Drug Paraphernalia

Based on the discovery of the drug paraphernalia in the purse, the officers arrested Ms. Runyan and charged her with possession of drug paraphernalia. Ms. Runyan moved to suppress the evidence, arguing that although police may have had probable cause to search the car, they were required to and did not have independent probable cause to search her purse. The trial court agreed and granted the motion to suppress. The court found that the “warrantless search of purses of passengers of a vehicle is not justified by the search incident to arrest exception.”

Police May Search A Car Without A Warrant – But They Must Have Probable Cause

The Commonwealth appealed, and the Pennsylvania Superior Court reversed the trial court’s order suppressing the drug paraphernalia. The Superior Court cited the recent case of Commonwealth v. Gary in which the Pennsylvania Supreme Court held that police do not need a warrant to search an automobile. Instead, because of the inherent movability of a vehicle and possibility that evidence could be lost during the delay inherent in obtaining a warrant, police may search an automobile whenever they have probable cause to do so. Probable cause means that it is more likely than not that the police will find some sort of contraband or evidence in the car. Obviously, the odor of marijuana, bag of marijuana in plain view, driver’s attempt to flee from the back of the car, and the officer’s extensive experience in making drug and marijuana arrests all combined to establish probable cause that there would be some kind of drugs or more marijuana in the vehicle. Therefore, the Superior Court held that officers could search any container in the car in which the contraband could be concealed, including Ms. Runyan’s purse.

The United States Supreme Court has already held that police may search any containers within a car when police have probable cause to do so. Therefore, following the Pennsylvania Superior Court’s decision, Pennsylvania and federal courts will now apply the same standard in automobile search cases. Police need only probable cause in order to search any container within the car.

There Are Defenses in Car Search Cases

Despite the Superior Court’s ruling, there are often still defenses in cases involving searches of cars. Although police may search the car and the containers therein when they have probable cause, it is often possible to challenge both the initial stop of the vehicle and whether the police really had the probable cause to conduct the search. First, depending on the type of stop, police must have either reasonable suspicion or probable cause to actually conduct a stop of a vehicle. If the defense can show that the police stopped the car arbitrarily or pretextually, it may be possible to have all of the results of the stop suppressed. Second, if the police did not actually have probable cause to search the car, then the results of the illegal search would be suppressed. Here, police saw drugs in plain view and the driver attempted to flee, but in many cases, the evidence of contraband is not so obvious and can be challenged. Finally, many drug possession and gun possession cases raise issues of constructive possession. In this case, Ms. Runyan made the foolish decision to store her identification card with her drug paraphernalia. However, in most cases, people do not do that. Had her ID not been with the contraband, then police would have had a difficult time establishing to whom the purse belonged without some kind of statement.  

A Philadelphia Criminal Defense Lawyer Can Help With Drug Cases  

Zak T. Goldstein, Esq - Philadelphia Drug Lawyer

The Philadelphia Criminal Defense and Drug Defense Lawyers of Goldstein Mehta LLC can help with drug and gun cases in Philadelphia. We have litigated and won countless motions to suppress and possession cases involving vehicle searches and other searches in Pennsylvania and New Jersey. Our lawyers will work closely with you to build the strongest possible defense to your charges. Call 267-225-2545 for a complimentary, 15-minute criminal defense strategy session.  

PA Superior Court Rejects Search Warrant Issued on Word of Unproven Confidential Informant

The Use of Confidential Informants in Drug Cases

It is not a secret that the police often use confidential informants in the investigation of narcotics offenses. However, even when police make arrests and prosecutors bring charges based on evidence obtained by confidential informants, the identity of the confidential informant and extent to which police have used the CI in the past often remain a secret. The use of confidential informants is particularly prone to abuse. In cases where courts do not require prosectors to provide information about the identity of the confidential informant and proof of the CI's reliability, the defense is left with few options for challenging or verifying the testimony of the police officer about the evidence allegedly obtained by the CI.

Instead, officers are routinely permitted to testify, often without specifics, that the confidential informant has provided reliable information in the past and should therefore be trusted now. Likewise, despite the constitutional right to cross-examine one’s accusers in a criminal case afforded by the Confrontation Clause, Pennsylvania courts have increasingly accepted police and prosecution arguments that revealing the identity of the confidential informant in any case would jeopardize the safety of the confidential informant. Therefore, courts often deny defense attempts to learn any information about the confidential informant and deny motions to reveal the CI's identity. 

Confidential Informants Must Be Reliable In Order to Provide Probable Cause

In Commonwealth v. Charles Manuel (likely no relation to the World Series-winning Phillies manager), the Pennsylvania Superior Court appears to have reached its limit. In many cases, judges take an officer’s word for it on whether the CI has been reliable and whether the CI’s safety would be jeopardized by disclosure to the defense. In Manuel, the Superior Court held that the fact that the CI provided information on one prior occasion which led to an arrest did not sufficiently establish that the CI was reliable enough for police to obtain a search warrant based on the CI’s word alone.

In Manuel, police obtained a search warrant for the defendant’s house based solely on the word of a confidential informant. The confidential informant told officers that he or she had been to the defendant’s house and observed a marijuana grow operation. Police had also used the CI on one prior occasion, and the prior use of the CI led to an arrest. At the time of the investigation, however, the charges stemming from the prior investigation were still pending and had not been adjudicated. Accordingly, officers could not establish that the CI’s prior information was reliable enough to lead to an actual conviction. Finally, officers asserted that they had corroborated the CI's allegations because the CI told the officers the names of the occupants of the house. 

After officers checked real estate records and confirmed that the CI had correctly identified the owner of the house, officers applied for a search warrant. In the warrant, the officers indicated that the CI was reliable because the CI’s prior information had led to an arrest and that the public records check provided corroboration of the CI’s allegation that officers would find a grow operation. Because officers wrote that the CI observed the alleged marijuana grow operation, a magistrate granted a search warrant for the property. Of course, when officers executed the search warrant, they did find a marijuana grow operation. The trial judge denied the ensuing motion to suppress, and the defendants were convicted of Possession with the Intent to Deliver marijuana.

On appeal, the Pennsylvania Superior Court reversed the defendants’ convictions. The Court ruled that the trial judge should have granted the motion to suppress because the warrant was lacking in probable cause. In many cases, the word of a confidential informant may be enough to obtain a search warrant. The court noted, for example, that an informant’s tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity. However, there must be some real basis for believing the CI’s information to be reliable. In many cases, the police will use the CI to conduct controlled buys or conduct some other investigation of the defendant in order to corroborate the CI’s allegations. Once the allegations have been corroborated, the officers may obtain a valid search warrant.

Here, however, the officers simply failed to corroborate the allegations of the confidential informant, and there was nothing to suggest that the CI was in fact reliable. Although there is no magic number of arrests or convictions for which a CI must have previously provided information in order to be deemed reliable, it is clear that one prior arrest is not enough. The court must evaluate the totality of the circumstances, but in the absence of some corroboration, one prior arrest is likely insufficient. Because the information from the CI failed to establish probable cause, the warrant was defective. Accordingly, the Superior Court reversed the defendants’ convictions and the trial court’s ruling denying the motion to suppress.

Our Philadelphia Criminal Defense Lawyers Can Help With Drug Charges

Goldstein Mehta LLC - Philadelphia Drug Lawyers

If you or a loved one are under investigation or facing drug charges, we can help. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC today. Our defense attorneys have extensive experience fighting drug charges in Pennsylvania and New Jersey. We have obtained successful results in cases involving alleged observed drug transactions, expert witnesses, and controlled buys involving confidential informants. Call 267-225-2545 for a free, 15-minute criminal defense strategy session.

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Can the police search a guest in a home when executing a search warrant?

Can The Police Search Me If I Am A Visitor In A House? 

A search warrant for a particular location gives the police broad authority to search within that location for evidence of contraband like drugs, guns, and other incriminating items. There are, of course, limits, and in Pennsylvania, even searches which are supported by a warrant may be subject to challenge with a Motion to Suppress. In addition to the possibility of attacking the legality of the warrant itself, there may be other grounds for suppressing the results of a search even if the police had a warrant in cases where the police officers exceed the scope of the warrant.

For example, even when the police have a search warrant, the authority to search is generally limited to areas within the property where the police could reasonably expect that the evidence being sought could be found. For example, if the police are looking for guns, then they could not search a container which is too small to contain a gun. Likewise, the police probably could not search the contents of your computer in order to find a gun unless the search warrant specifically gives them authority to analyze the data on the computer.

Searches of Visitors Pursuant to a Search Warrant for the House

Philadelphia Criminal Lawyer Zak T. Goldstein, Esq.

An important issue arises when there are guests present in a home when the police show up to execute a search warrant. As a general rule, under Pennsylvania law, the police may not search the physical person and clothing of the people in the home unless those people are identified in the warrant or the police have other independent probable cause to arrest those people and conduct a search incident to arrest. This means that if the police have a search warrant for the house, and you happen to merely be there when the police show up to execute the warrant, then the police may not search you and the clothing that you are wearing merely because they have a warrant for the house. If you are described in the warrant or they have existing probable cause to arrest you, then they could search you, but if you happen to merely be a guest in a property which is the target of a search warrant, the police do not have the authority to search you without more than just the warrant.

Although the Pennsylvania Constitution provides strong protections to visitors in a home even during the execution of a search warrant, it is important to note that the standard is different in federal court because the federal courts have determined that police may detain and potentially search everyone in a home during the execution of a search warrant for officer safety purposes.

Searches of Clothing and Bags in the House when Police Have a Warrant  

The issue becomes trickier when there are items of clothing or bags which could contain the contraband being sought which are not physically on the person in the house. This was the situation which arose on appeal in a recent case in the Superior Court, Commonwealth v. Petty. In Petty, the officers were executing a search warrant for drugs in a house in Philadelphia. Mr. Petty happened to be a guest in the house, and when police entered the house, Petty was in bed in the rear bedroom. Unfortunately for Mr. Petty, he did not have his pants on. Police ordered Petty out of the bed, and as Petty complied and tried to put on his pants, which had been lying on the floor, police first took the pants before Mr. Petty could pick them up, and the police searched them, recovering drugs.

Petty’s criminal defense lawyer filed a motion to suppress the drugs, alleging that the police in effect had searched his person because the police knew that the pants were his. Because police had no prior information on Petty, this search would have exceeded the scope of the warrant because Petty was not identified in the warrant. Therefore, police did not have authority to search Mr. Petty or his clothing.

The Philadelphia Municipal Court granted the motion to suppress, but unfortunately for Mr. Petty, the Superior Court reversed. The Superior Court concluded that the search was permissible because police officers who are executing a search warrant have the authority to search any container which could contain contraband. The court noted:

Holding that clothing removed from a person and placed nearby is an extension of his person rather than simply an article of personal property on the premises interjects an element . . . that requires police to guess whether items in proximity to a person not identified in a warrant would soon be used by that person. Because Appellee did not physically possess the pants when officers found them, police were authorized to search them.

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Although Petty lost on appeal, the Superior Court’s decision reaffirms the holding that police may not search guests in a home merely because they have a warrant to search that home. As always, if you are facing criminal charges, it is critical that you hire a criminal defense attorney who focuses his or her practice on criminal law and stays on top of new developments in the law. If you are facing charges in Pennsylvania or New Jersey, call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.