PA Superior Court Rejects Good Faith Exception to Exclusionary Rule in Birchfield Cases

Commonwealth v. Carper

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carper. In Carper, the Court held that prosecutors may not introduce illegally obtained blood test results in Driving Under the Influence (“DUI”) cases despite the fact that the police relied on then-settled law which permitted warrantless blood testing of DUI suspects. The Superior Court specifically rejected the application of the “good faith exception” and held that the evidence remains inadmissible despite the fact that the police officers may have acted in good faith and not realized that they were violating the law. 

Carper involved a relatively straight-forward DUI case. A Pennsylvania State Police Trooper pulled Carper over in October 2014 for an expired inspection sticker. During the ensuing stop, the Trooper began to suspect Carper of driving under the influence of a controlled substance. The Trooper arrested Carper, transported him to the hospital, and informed him that if he did not consent to a blood draw, he would face increased criminal penalties. Carper agreed to the blood draw, and the blood draw showed the presence of a controlled substance.

Motion to Suppress

Carper moved to suppress the evidence under the Fourth Amendment of the United States Constitution. Notably, Carper did not move to suppress the blood results under the Pennsylvania Constitution. The trial court held a suppression hearing, and the Commonwealth introduced evidence in an attempt to show that it complied with both the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Following the hearing, the United States Supreme Court decided Birchfield v. North Dakota, and then Carper filed a post-suppression hearing brief in which he also argued that the blood results should be suppressed under the Pennsylvania Constitution. Likewise, the Commonwealth filed a brief in which it argued that the Pennsylvania Constitution did not bar the introduction of the blood results into evidence. 

Birchfield v. North Dakota made it illegal for states to impose criminal penalties on DUI suspects who refuse a warrantless blood draw. Thus, the trial court granted the Motion to suppress, agreeing with the defense that the police illegally coerced the defendant into consenting to the blood draw by informing the defendant that he would face more severe criminal penalties if he refused chemical testing. 

The Good Faith Exception to the Exclusionary Rule

The Commonwealth appealed. In its appeal, the Commonwealth argued for the application of the good faith exception to the Exclusionary Rule. In the federal system, prosecutors may still use unlawfully seized evidence if police acted in good faith when they obtained the evidence. For example, courts have found that officers acted in good faith where they arrested a defendant on what they believed to be a valid warrant despite the fact that the warrant had actually been lifted. Likewise, federal courts have held that police act in good faith when they rely on existing case law when conducting a search even if later case law subsequently changes the legality of the search. Thus, the Commonwealth asked the Superior Court to find that the good faith exception applies in Birchfield cases because police relied on well-established case law. The Commonwealth also argued that the defendant failed to properly preserve his state law challenge to the blood draw because defense counsel moved to suppress the evidence only under the United States Constitution prior to the hearing and never mentioned the state law claim until the defense filed its post-hearing brief.     

The Superior Court rejected both of the Commonwealth’s arguments. First, the Court recognized that Pennsylvania appellate courts have repeatedly found that there is no good faith exception to the exclusionary rule in Pennsylvania. Thus, while the good faith exception may apply in federal court, it does not apply in Pennsylvania state courts. The only issue is whether officers violated the law; it does not save the Commonwealth’s case that the officers relied on the law at the time. Second, the Court rejected the Commonwealth’s argument that Carper waived the state law claims by failing to mention them in the initial motion. This would have led to the motion being denied because under the federal law claims, the good faith exception would have applied. Nonetheless, the Court rejected this argument as well, finding that the Commonwealth had not been prejudiced because the Commonwealth extensively briefed the state law issues and presented testimony relating to the issue of coercion at the suppression hearing. Further, the defense preserved the issue by filing the post-hearing brief and allowing the trial court to rule on it. Therefore, the Court rejected both of the Commonwealth’s appellate issues.  

Following Carper, it is clear that the good faith exception does not apply in Birchfield DUI cases. States may not penalize DUI suspects for refusing to submit to blood testing without a search warrant. Although prosecutors continuously ask the appellate courts to adopt a good faith exception in Pennsylvania, the courts have fortunately refused to do so thus far.  

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United States Supreme Court To Review Whether Police Need Warrant To Obtain Cell Phone Location Data

Potentially recognizing that the frame work for when police and federal agents are required to seek a search warrant to obtain digital information has become outdated, the United States Supreme Court announced that it will review whether the police are required to get a search warrant in order to obtain a suspect’s cell phone records. Local and federal law enforcement routinely seek cell phone location data from a suspect’s telephone company in order to track the suspect’s whereabouts around the time of the crime. The location data can be extremely powerful as circumstantial evidence in cases where the cell phone data puts the suspect at or near the scene of the crime at the time of its commission. For example, if police believe that the suspect committed a homicide, they could use cell phone location data to show that the suspect was near the decedent at the time of the murder.

Current Standards for Obtaining Cell Phone Location Data

Under existing state and federal law, police officers are generally not required to obtain a search warrant in order to retrieve this information from a phone company. Instead, in many jurisdictions, law enforcement officers simply submit a request to the phone company, and the phone company will provide the information without a warrant and court order. In other jurisdictions, officers may be required to obtain a court order in order to retrieve the data, but the court orders may be issued on a standard of evidence lower than the probable cause standard required in order to obtain an actual search warrant. This is the case in federal court, where prosecutors must show only that there are “reasonable grounds” for the records and that they are “relevant and material” to an investigation.

Courts have traditionally allowed police to dispense with the warrant requirement in obtaining this type of data because the data is not stored in the suspect’s phone or on the suspect’s person. Instead, the defendant necessarily shared the data with a third-party, the phone company, by using the phone. Thus, courts have held that defendants do not have a reasonable expectation of privacy in information that they have publicly shared or shared with third parties, and courts have not needed to obtain search warrants in order to obtain that type of information.

Reasonable Expectation of Privacy in Cell Phone Data

As a general rule, defendants may move to suppress the results of a search only where they had a reasonable expectation of privacy in the place searched. Obviously, you have a reasonable expectation of privacy in your home, car, and pockets, but courts have rejected the idea that a criminal defendant has a reasonable expectation of privacy in something that he or she has shared with a third party. This rule may have made sense twenty years ago before the advent of technology which literally tracks a person’s every movement. Devices like cell phones, sports watches, and GPS systems all track a person’s whereabouts at all times, making it much more difficult for the government to argue that a suspect should not have a privacy interest in the resulting data. If the government is not required to obtain a search warrant, then the government can essentially obtain all of the details of a person’s life without even having probable cause.

After recently determining that police must have a search warrant in order to search the contents of an arrestee’s search warrant, this case suggests that the High Court may be prepared to re-think the reasonable expectation of privacy doctrine given the realities of modern technology. The case on appeal is Carpenter v. United States. In Carpenter, without getting a search warrant which would have required probable cause, FBI agents obtained cell phone records for the defendant from his phone company which covered 127 days and revealed 12,898 separate points of location data. The data ultimately connected Carpenter to a string of cell phone store robberies, and Carpenter was convicted at trial. On appeal, the Sixth Circuit Court of Appeals ruled 2-1 that the Fourth Amendment does not require law enforcement to obtain a search warrant prior to seeking this type of data. Carpenter has appealed to the United States Supreme Court, and the Court will review whether the police should be required to obtain a search warrant in order to get this highly personal data. Search warrants are not particularly difficult for the government to obtain, and a decision in favor of Carpenter would limit the government’s ability to track your every movement without at least some showing of probable cause.

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Read the Sixth Circuit’s Opinion: https://scholar.google.com/scholar_case?case=14626167511079628834

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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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

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