PA Superior Court Continues to Struggle With Meaning Of "Stop"

Motions to Suppress in Gun and Drug Cases

The first line of defense to criminal charges like gun possession or drug possession is often the Motion to Suppress. If the police stopped or searched you or your belongings without reasonable suspicion or probable cause, it may be possible to have the evidence suppressed. Once the evidence is suppressed, the Commonwealth would not be able to proceed to trial in a case involving a possessory offense, and the case could be thrown out. In cases involving illegal stops or searches of pedestrians, the first thing that the defense must typically show is that the police actually stopped or “seized” the defendant under either Article I Section 8 of the Pennsylvania Constitution or the 4th Amendment of the United States Constitution. 

What makes a stop a stop? 

As recently as three months ago, in the case of Commonwealth v. Morrison, the Pennsylvania Superior Court concluded that when a police officer says stop, that means stop. Thus, a reasonable person would not feel free to leave, and the encounter rises to the legal level of a Terry stop. In the case of Commonwealth v. Newsome, a different panel of the Superior Court has reached a different conclusion. In Newsome, the Superior Court held that the mere use of the word “stop” does not necessarily transform a police encounter into a Terry stop requiring reasonable suspicion or probable cause. Instead, whether police conduct rises to the level of a stop depends on the totality of the circumstances and the specific facts of each case. 

Commonwealth v. Newsome

In Newsome, the defendant was arrested in Philadelphia and charged with various Violations of the Uniform Firearms Act (“VUFA”). The defendant moved to suppress the evidence, and the court held an evidentiary hearing on the motion to suppress. At the hearing, a Philadelphia Police Lieutenant testified that he received an anonymous radio call that a group of males were outside on the 2000 block of Croskey Street passing around a gun. The officer drove to the scene. When he arrived, he saw a group of men huddled together. Two of the men left the group and walked to the other side of the street.

The defendant was one of the two men who crossed the street and began to walk southbound down Croskey street. The officer exited his marked patrol car and asked the defendant to “come here” so he could talk to him, but the defendant refused and continued walking. The officer began to radio for backup to stop the defendant when he observed the defendant reach into his waistband, remove an object that looked like a gun, and place it in a nearby flowerpot. Although the defendant discarded the gun in view of the officer, the gun could be suppressed if the defense could show that the defendant discarded the gun only in response to some sort of unlawful illegal police activity or seizure. 

A different police officer recovered the firearm, and the police arrested the defendant. On cross examination, the officer testified that he approached the defendant and the other men because he believed that they may have been violating Philadelphia’s 10:30 pm curfew. He also testified that he had not seen the defendant with any bulges or weapons on his person and that the defendant did not make any suspicious movements prior to putting the gun in the flowerpot. 

The trial court found the officer’s testimony credible, but it granted the Motion to Suppress. The trial court concluded that by saying stop and asking the defendant to come talk to him, the officer had stopped the defendant and legally seized him. Thus, the officer was required to have reasonable suspicion in order to make a stop, and the officer did not have that level of suspicion because he did not observe the defendant doing anything suspicious. Further, it is well-settled in Pennsylvania that an anonymous radio call cannot provide the basis for reasonable suspicion or probable cause, and even accepting the radio call as true, the radio call did not identify the defendant as the person with the gun.

The Superior Court’s Decision On Appeal

On appeal, the Superior Court reversed the trial court’s decision and concluded that the officer had not legally stopped the defendant. Instead, the officer had attempted to have a mere encounter with the defendant, and a mere encounter need not be supported by any articulable level of suspicion. In determining whether the officer conducted a stop, the court noted that it must evaluate all of the circumstances “evidencing a show of authority or exercise of force, including the demeanor of the police officer, the manner of expression used by the officer in addressing the citizen, and the content of the interrogatories or statements.” Courts must also consider the number of officers present, whether the officer accuses the citizen of criminal activity, the officer’s demeanor and voice, the location and timing of the interaction, the visible presence of weapons on the officer, and the questions asked. Where a reasonable person would not feel free to leave due to the behavior of the officer, the encounter rises to the level of a stop and requires at least reasonable suspicion. 

Here, the Superior Court found that the officer had not stopped the defendant and reversed the decision of the trial court. The Superior Court found that it was only a mere encounter because the officer simply exited the vehicle and asked the defendant to come here so he could talk to him. Although he was in full uniform and in a marked car, he did not engage the lights and sirens, display his weapon, or tell the defendant that he was not free to leave. He also did not block the defendant from moving in any particular direction. He did admit asking the defendant to stop two or three times, but he did not threaten any consequences for non-compliance or use an authoritative tone. Further, the defendant clearly felt no compulsion to stop because he continued walking away. Only after the defendant discarded the gun did the police arrest the defendant. Therefore, the defendant was not seized and officers were not required to have any level of suspicion.

THE EVIDENTIARY CONSEQUENCES OF AN ILLEGAL STOP

Motions to Suppress guns can be difficult to win, but police are required to follow the law. Although judges may be reluctant to suppress illegal firearms and large amounts of drugs, it remains the law that police must have reasonable suspicion or probable cause prior to making a stop or conducting a search. When the police stop or search someone illegally, the Fourth Amendment requires that the evidence be suppressed, meaning that it may not be used at trial. However, it is critical that the defense establish that the police conducted a stop or a search in order to win a Motion to Suppress. Clearly, the Superior Court’s decision in Newsome conflicts with recent precedent in which the Court held that the use of the word stop transforms an encounter into a Terry stop. Therefore, the question of whether a defendant is stopped for purposes of the Fourth Amendment remains highly fact specific. In many cases, a successful motion to suppress will require skillful cross examination by the defense in order to establish that based on the totality of the circumstances, a reasonable person in the defendant’s position would not have felt free to leave. This is particularly true in cases involving “Forced Abandonment” in which a defendant who has been illegally seized discards a gun or drugs prior to being physically restrained by the police. 

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If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended clients against gun charges, drug charges, and other possession of contraband cases in preliminary hearings, pre-trial motions to suppress, and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys. 

Read the Opinion: Commonwealth v. Newsome

PA Superior Court Finds Suspicionless Boat Searches Unconstitutional

On August 21, 2017, the Pennsylvania Superior decided the case of Commonwealth v. Karash, holding that the government cannot stop a boat without probable cause or reasonable suspicion. This was a case of first impression in Pennsylvania that will affect the thousands of people who utilize Pennsylvania’s waterways each year.

Commonwealth v. Karash

In Karash, the defendant was charged with not having the required safety equipment on his boat. On May 23, 2016, Mr. Karash was fishing on his boat when he was stopped by a waterways conservation officer. The officer did not see Mr. Karash do anything illegal prior to boarding his boat. Regardless, the officer boarded Mr. Karash’s boat to conduct a license check of those who were fishing. After this check was completed, and the occupants were cleared, the officer then performed a safety inspection. During this inspection, the officer determined that Mr. Karash did not have sufficient flotation devices and issued him a citation.

Mr. Karash contested his citation at a hearing. Mr. Karash litigated a Motion to Suppress where he argued that the officer lacked reasonable suspicion or probable cause to board his vessel in violation of his rights under the Pennsylvania Constitution. The magisterial district court denied his motion because 30 PA C.S. § 901 (a)(10) allows a waterways conservation officer to board a boat to make sure it is in compliance with the administrative aspects of the Fish and Boat Code (i.e. licensing requirements). It is important to note that this particular provision does not require an officer to have reasonable suspicion or probable cause for a government official to board one’s boat. After the hearing, Mr. Karash was found guilty of not having the required number of life vests and fined $75.

WHAT IS THE DIFFERENCE BETWEEN PROBABLE CAUSE AND REASONABLE SUSPICION?

Typically, a motion to suppress is a motion that asks a court to exclude evidence against a defendant because it was obtained when police acted without “probable cause” or “reasonable suspicion.” Probable cause and reasonable suspicion are similar, but distinct legal concepts.  Probable cause is mentioned in both the United States Constitution (the Fourth Amendment) and the Pennsylvania Constitution (Article I, Section 8). In order for the government to arrest you, there must be probable cause that you committed a crime. The Pennsylvania Supreme Court has defined “probable cause” as “the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 203 (Pa. 2009).

“Reasonable suspicion” is different. Unlike “Probable cause,” reasonable suspicion is not mentioned in either the U.S. or Pennsylvania constitutions. Despite this, courts have allowed police officers and other government officials to stop people on “reasonable suspicion” after the United States Supreme Court’s landmark decision in Terry v. Ohio. To be clear, “reasonable suspicion” is not as rigorous a standard as “probable cause.” Additionally, a person cannot be arrested or have their home searched based on “reasonable suspicion.” However, an individual can be detained for an “investigatory detention” based on “reasonable suspicion.”  The Pennsylvania Supreme Court defines “reasonable suspicion” as “a less stringent standard than probable cause…and depends on the information possessed by the police and its degree of reliability in the totality of the circumstances…a police officer must be able to point to ‘specific and articulable facts’ leading him to suspect that criminality is afoot.” Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2010).   

Typically, the government needs either “reasonable suspicion” or “probable cause” to detain someone. There are exceptions when the government can make a suspicionless stop of you (i.e. point-of-entry searches at public schools for weapons and DUI checkpoints). In determining whether a suspicionless check will be upheld, Pennsylvania courts employ a “balancing test…wherein the intrusion on the individual of a particular law enforcement practice is balanced against the government’s promotion of legitimate interests.” Commonwealth v. Blouse, 611 A.2d  1177, 1167 (Pa. 1992). Thus, the issue for the Karash Court was whether suspicionless checks for boats are constitutional.

As stated above, this was a case of first impression. Thus, the Karash Court looked for guidance from other jurisdictions to see how they ruled on this issue. The United States Supreme Court addressed a similar issue in United States v. Villamonte-Marquez. In its decision, the United States Supreme Court held that the federal government could conduct suspicionless "Customs checks" on vessels with close proximity to the open sea because of the complexity of the documentation required by federal law and the governmental interest in preventing smuggling. Thus, in Villamonte-Marquez, the United States Supreme Court upheld the warrantless and suspicionless search of a ship that resulted in finding thousands of pounds of marijuana.  

Can the Police Search a Boat Without Reasonable Suspicion or Probable Cause? 

Despite the ruling in Villamonte-Marquez, the Pennsylvania Superior Court declined to follow its holding. In Karash, the Pennsylvania Superior Court held, understandably, that ensuring recreational boater safety on Pennsylvania’s waters is a legitimate government interest. Nonetheless, the Karash Court also held that government had not demonstrated that it was unable to achieve its goal of recreational boater safety by a means other than suspicionless searches. 

The Karash Court analogized the Commonwealth’s waterways to its roads. Specifically, the Court focused on DUI Checkpoints. Pennsylvania allows DUI Checkpoints, but there are extremely strict limitations that the appellate have imposed on police departments in setting up these highly intrusive checkpoints. Police do not have “unfettered discretion” and along with other guidelines (i.e. prior notice, momentary stoppage of drivers, checkpoints placed on roads where DUI’s are more likely, etc.), courts have imposed rules to reduce the intrusiveness of the checkpoints so that they may comply with the Pennsylvania Constitution.  Commonwealth v. Tarbert, 535 A.2d 1035, 1037 (PA 1987).

The Karash Court held that the Commonwealth has not employed these same safeguards on its waterways. As such, the Karash Court held that Mr. Karash’s constitutional rights were violated when the waterways conservation officer boarded his boat without probable cause or reasonable suspicion. Thus, Mr. Karash’s conviction was overturned. 

Motions to Suppress

Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys

Trials can be won and lost with a motion to suppress. If you are facing criminal charges, you need an attorney who has the knowledge and expertise to litigate these motions even when the law has yet to be conclusively established. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

K9 Searches | When Can Police Use Drug Sniffing Dogs in PA?

Both the Philadelphia Police Department and the Pennsylvania State Police frequently use trained canines to detect drugs and combat drug trafficking. When the police find drugs based on the alert of a drug sniffing dog, there are often issues as to whether the police had the right to conduct the search in the first place. In some cases, it may be possible to challenge the search and seek suppression of the evidence if the police conducted the canine search without reasonable suspicion or probable cause. Pennsylvania and Federal law differ on the level of suspicion which police must have in order to conduct a K9 search. However, both federal and state law provide substantial protections to individuals from unlawful searches.

Pennsylvania Law on Drug Detection Dogs  

The Pennsylvania Supreme Court has repeatedly recognized that a canine search constitutes a search under Article I, Section 8 of the Pennsylvania Constitution. Therefore, if police conduct a canine sniff without the required level of suspicion, the results of the search could be suppressed.

Canine Sniffs of the Person

Under Pennsylvania law, police are required to have different levels of suspicion depending on whether the search was of a person or a car. When the police want to use a drug sniffing dog to detect whether a person has drugs on them, the police are required to have probable cause for the search. In Commonwealth v. Martin, the Pennsylvania Supreme Court recognized that “an invasion of one’s person is, in the usual case, a more severe intrusion on one’s privacy interest than an invasion of one’s property.” While reasonable suspicion may justify a canine sniff of a place or a car, reasonable suspicion is too low of a standard for the search of a person.

When the sniff is of a person, the police must have probable cause to believe that a canine search will produce contraband or evidence of a crime. Probable cause means that it is more likely than not that some evidence or illegal contraband will be found. This means that if the police conduct a canine sniff without probable cause, the results of the search could be suppressed in court by filling a Motion to Suppress.

Canine Sniffs of a Car

When the police want to conduct a canine sniff of a car, they are only required to have reasonable suspicion. Reasonable suspicion is a lower standard than probable cause. Reasonable suspicion permits an officer to detain an individual in order to conduct an investigation if the officer reasonably suspects that the individual is engaging in criminal conduct. When evaluating whether an officer had reasonable suspicion, the court will look at the totality of the circumstances and whether the officer can provide specific, articulable facts as to why the officer believed the suspect was engaged in criminal activity. If the officer has reasonable suspicion of criminal activity, then the officer may conduct a K9 sniff.

Recently, the Pennsylvania Superior Court approved of a canine sniff in the case of Commonwealth v. Green. In Green, the Court found reasonable suspicion for an investigative detention and canine sniff based on the following factors:

• The defendant was overly nervous for a routine traffic stop,

• The vehicle belonged to an absent third party,

• The defendant stated he was returning from Philadelphia, and the Trooper believed Philadelphia to be a source location for narcotics trafficking,

• The Trooper had prior contacts with the defendant during which the Trooper found drugs, and

• The defendant had numerous arrests and convictions for both violent crimes and drug offenses

Federal Limits on Police Canine Sniffs

There are other limits on police canine sniffs in addition to the requirement that police have either reasonable suspicion or probable cause for the decision to employ a canine. For example, police must still have reasonable suspicion or probable cause for the initial stop of the defendant that leads to the subsequent search. If the police pull a car over without any evidence of a crime or traffic offense, the results of a search could be suppressed even if the police later developed reasonable suspicion or probable cause for the canine search. Suppression would be required because of the illegality of the initial stop.

Recently, in Rodriguez v. United States, the United States Supreme Court held that police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s protections against unreasonable seizures. In Rodriguez, police stopped a car for driving on the shoulder of the highway. When police spoke with the driver, Rodriguez, he told them that he had swerved to avoid a pothole. The officer obtained the Rodriguez' paperwork and asked him to come with him to the patrol car. Rodriguez asked if he had to do so, and the officer said no. The officer returned to the patrol car to run the paperwork. After doing so, he returned to Rodriguez’ car. The officer questioned the front seat passenger, took his paperwork, and conducted a records check on that person. The officer then wrote a written warning and returned to the car to give it to Rodriguez.

After giving Rodriguez the warning, the stop should have been over. Instead, the officer asked Rodriguez for permission to conduct a canine sniff. Rodriguez politely declined, and the officer detained him anyway while he waited for backup. Once backup arrived, the officer conducted a canine sniff, the dog alerted for drugs, and police then searched the car and found drugs. Approximately eight minutes elapsed between the time when the officer finished issuing the warning and when the officer conducted the canine sniff.

Under federal law, a canine sniff is not considered a search and does not require reasonable suspicion or probable cause. However, the United States Supreme Court found that the police did not have reasonable suspicion to detain Rodriguez for the additional eight minutes before they conducted the canine sniff. The Court concluded that police may not prolong an ordinary traffic stop in order to conduct a canine sniff without reasonable suspicion. Although police may decide whether to issue a traffic ticket and check the driver’s paperwork, the police may not detain the car for additional time without a basis for doing so. Therefore, the Court reversed the conviction and ordered that the drugs be suppressed.

The Effect of Canine “Alerts”

The courts have held that canine sniffs where the canine ‘”alerts” provide police with probable cause to conduct a full blown search of a person or vehicle. Under Pennsylvania and Federal law, police are not required to get a warrant prior to searching a vehicle. Instead, they are required only to have probable cause prior to conducting a search. Therefore, if a trained police dog alerts to the presence of drugs, police may search the car or person. However, as the case law illustrates, there are still significant limits on canine searches. The courts have held that the initial stop must still be justified by reasonable suspicion or probable cause and the Pennsylvania courts have found that police must have reasonable suspicion or probable cause for the search of a car or a person. If the police make an illegal stop, improperly extend a traffic stop, or conduct a canine sniff without the required level of suspicion, then the results of the search should be suppressed.  

Philadelphia Criminal Defense Lawyers for Drug Cases

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have successfully represented hundreds of clients in drug possession and drug trafficking cases. We are experienced and understanding defense attorneys who will use our high level of skill and expertise on your behalf. We have successfully litigated pre-trial motions and obtained pre-trial dismissals and acquittals at trial. If you are facing drug possession charges, call 267-225-2545 for a free criminal defense strategy session. 

PA Supreme Court Finds Car Passenger Entitled to Suppression of Contraband in Illegally Stopped Car

Commonwealth v. Shabezz

In the case of Commonwealth v. Shabezz, the Pennsylvania Supreme Court has affirmed on appeal that a passenger in a vehicle may successfully move to suppress evidence which is recovered from the vehicle where the vehicle was illegally stopped. The passenger may move for suppression even if the passenger did not have a reasonable expectation of privacy in the contents of the vehicle.

This means that if you are the passenger in a car you do not own and the police stop and search the car and find something illegal, you may move to suppress the contraband due to the initial illegal stop. Previously, it was unclear whether a passenger had a reasonable expectation of privacy in the contents of someone else’s car, and trial judges would frequently use that line of argument in order to deny motions to suppress. 

Motions to Suppress

The first line of defense to gun charges and in drug cases is often the motion to suppress. In cases where the prosecution cannot show that the police legally recovered the evidence in question, it may be possible to have the evidence excluded at trial and the case dismissed by litigating a motion to suppress. In Pennsylvania, it is typically not enough for the defendant to show only that some sort of illegal search occurred. The defendant must also show both that he or she has standing to challenge the search and that he or she had a reasonable expectation of privacy in the place that was searched. 

What is a Reasonable Expectation of Privacy?

Standing is generally not an issue because Pennsylvania appellate courts have held that any defendant charged with a possessory offense has automatic standing to challenge the search and seizure that led to the recovery of the evidence. Reasonable expectation of privacy, however, is frequently an important issue. The defendant must show that he or she had a reasonable expectation of privacy in the place searched. If the defendant cannot show that he or she had a reasonable expectation of privacy which the police violated, then the court will deny the motion to suppress even if the police did something illegal. The prosecution bears the burden of showing that the police obtained the evidence in a lawful manner, but the defendant bears the burden of first showing that the defendant had a reasonable expectation of privacy.  

In many cases, reasonable expectation of privacy is relatively easy to understand. If you have drugs in your pocket, reasonable expectation of privacy is not going to be an issue because everyone will agree that you had a reasonable expectation of privacy in the contents of your pocket. In other cases, it is clear that you do not have a reasonable expectation of privacy. If the police search your friend’s house when you are not in it and recover evidence which connects you to a crime, you will not be able to have that evidence suppressed even if police did not first obtain a search warrant. You simply do not have a reasonable expectation of privacy in someone else’s house where you are not present or staying. Therefore, although the police may have violated your friend's constitutional rights, they have not violated your rights, and you have no remedy.  

Appellate courts have recognized that the basis test for reasonable expectation of privacy is as follows:

An expectation of privacy will be found to exist when the individual exhibits an actual or subjective expectation of privacy and that expectation is one that society is prepared to recognize as reasonable. In determining whether a person’s expectation of privacy is legitimate or reasonable, the totality of the circumstances must be considered and the determination will ultimately rest upon a balancing of the societal interests involved. The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances.

Thus, a defendant generally does not have a reasonable expectation of privacy in houses or cars belonging to other people or in public places. At the same time, a defendant may have a reasonable expectation of privacy in certain places at work or in a restroom. 

In Commonwealth v. Shabezz, the Supreme Court held that a defendant-passenger need not show a reasonable expectation of privacy in a car which has been stopped illegally in order to have drugs or guns suppressed. In Shabezz, officers testified at a motion to suppress hearing that they observed what they believed to be a drug transaction and therefore stopped the car in which Shabezz was a passenger. Shabezz ran, and the police quickly caught him. They found marijuana and cash on him. They then searched the car from which he fled and found more marijuana, scales, packaging, some pills, and a gun. Prosecutors charged Shabezz with Possession with the Intent to Deliver.

The trial court, however, did not believe the police as to the reasons why they stopped the car. Although police testified to observing a drug transaction prior to stopping the car, they had completely failed to mention the drug transaction in any of the police reports which they prepared at the time of the arrest. They also testified that they were able to see the exchange of money for small objects from 45 feet away at night without binoculars. Therefore, the court granted the motion to suppress, finding that the initial stop of the vehicle was illegal. 

The prosecution appealed, and the appeal eventually reached the Pennsylvania Supreme Court. On appeal, the Commonwealth argued that the motion should have been denied because Shabezz was merely a passenger in a vehicle, and as a passenger, he did not have a reasonable expectation of privacy in the car. 

What Happens if the Police Illegally Stop a Car?

The Pennsylvania Supreme Court rejected that argument. It noted that there is a difference between standing and reasonable expectation of privacy. In order to prevail in a motion to suppress, the defendant must typically be able to show both. As explained, standing is easy – if you are charged with a possessory offense, you have standing. But reasonable expectation of privacy is often more complicated. In this situation, however, the Pennsylvania Supreme Court found that no reasonable expectation of privacy was required. The defendant must simply show that he was a passenger in the car and that the car was stopped illegally prior to the police finding the evidence which the prosecution wants to use. Here, the Court found that the initial police illegality of unlawfully stopping the vehicle tainted all of the subsequently recovered evidence. That evidence became fruit of the poisonous tree, and therefore, the trial court properly granted the motion to suppress.

The Court's opinion simplifies the remedy for challenging an illegal car stop. If the police stop a car illegally and find contraband, it does not matter if the defendant is the driver or the passenger. Both the driver and the passenger have had their rights violated by being seized without reasonable suspicion or probable cause. Therefore, both the driver and the passenger now have the same remedy.

Charged with a crime? We Can Help 

If you are facing criminal charges in Pennsylvania or New Jersey, our Philadelphia criminal defense lawyers can help. We have successfully litigated countless motions to suppress in gun and drug cases, and we have helped clients favorably resolve all types of criminal charges. We offer a 15-minute criminal defense strategy session to anyone who is facing criminal charges or who may be under investigation. Call 267-225-2545 to speak with an award-winning defense attorney today.