PA Courts Adopt Public Servant Exception to Warrant Requirement

The Public Servant Exception to the Warrant Requirement

Zak T. Goldstein, Esq. - Criminal Defense Attorney

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Livingstone, holding that although Pennsylvania has a community caretaker and public safety exception to the warrant requirement, police officers must be able to provide specific and articulable facts for why a person may be in need of assistance prior to conducting an investigative detention. In other words, police officers may stop a person if they believe the person is in distress or that there is an emergency situation, but the police must be able to provide specific reasons for why they believe an emergency situation exists, they may not conduct a stop as a pretext to investigate criminal activity, and the stop may only as intrusive as the circumstances require. 

Commonwealth v. Livingstone

In Livingstone, a Pennsylvania State Trooper in Erie County saw the defendant’s vehicle pulled over on the shoulder of the highway. The engine was running, but the hazard lights were not activated. The Trooper activated his emergency lights, and with his passenger side window down, pulled alongside the stopped vehicle. The Trooper then began to ask the defendant some questions, and he eventually reached the conclusion that she was under the influence of a controlled substance. Accordingly, he arrested the defendant and charged her with DUI.

Motion to Suppress

The defendant subsequently filed a pre-trial motion to suppress the results of the blood test, arguing that she was stopped without reasonable suspicion or probable cause when the Trooper pulled up next to her and activated his emergency lights. The trial court denied the motion and found that after the Trooper saw the vehicle on the side of the interstate, the Trooper had a duty to determine if the defendant was in need of help. The trial court also found that the Trooper engaged only in a “mere encounter,” meaning he did not need reasonable suspicion or probable cause. With the motion to suppress denied, the court found the defendant guilty of DUI and sentenced her to a period of house arrest.

The defendant appealed. After the Superior Court affirmed the trial court’s denial of the motion to suppress, the Pennsylvania Supreme Court granted review. On appeal, the Supreme Court recognized that the case presented two distinct issues: first, was the defendant seized when the Trooper pulled up next to her with his emergency lights on, and second, if the defendant was seized, was the Trooper justified in stopping her.

The Court found that the first issue was relatively simple; the defendant was seized when a marked State Police vehicle pulled up next to her, rolled the window down, and activated its overhead lights. The Court emphasized both that official driver’s license materials provided by PennDOT instruct motorists that they should not leave when a police officer activates his or her emergency lights and that Pennsylvania law makes it a felony to flee from a police officer after the officer signals for the motorist to stop. Because no reasonable person would feel free to leave when a State Police Trooper activates his or her emergency lights, the defendant was seized when the Trooper pulled up next to her and activated the lights.

Second, the Court found that the Trooper did not have the legal authority to make the stop because the Trooper lacked sufficient information to determine that the defendant was in need of assistance. Once a court determines that police have seized someone for purposes of the Fourth Amendment, the prosecution generally must show that the police had either reasonable suspicion or probable cause depending on how extensive the stop was. In order to support a Terry stop (“an investigate detention”), the police must have reasonable suspicion. In order to arrest someone, the police must have probable cause to make an arrest.

Here, the Trooper did not have reasonable suspicion or probable cause at the time of the stop because he had no indication that criminal activity was afoot or that a crime had occurred solely from the fact that the defendant had pulled over. However, the Court recognized a “community caretaking doctrine” or public safety exception. The community caretaking doctrine applies in three circumstances. First, there is an emergency aid exception. Second, there is an automobile impoundment/inventory exception, and third, there is a public safety exception. For any of these exceptions to apply, the officer must be acting out of a motivation to render aid or assistance rather than an attempt to investigate criminal activity.

The Public Safety Exception (Public Servant Exception)

Prior to this case, the Pennsylvania Supreme Court had never specifically addressed the public safety exception. The Court recognized that the police do not exist solely to investigate and prevent criminal activity. Instead, they are also charged with ensuring the safety and welfare of the Commonwealth’s citizens. At the same time, the Fourth Amendment requires that police officers not conduct warrantless searches without reasonable suspicion or probable cause. Therefore, the Court sought to employ a test for when police can conduct a seizure of this nature that would both allow the police to help members of the public and protect the privacy rights guaranteed by the Fourth Amendment.

Can The Police Conduct A Stop If They Think Someone Needs Help? 

The Court held that in order for the public servant exception (public safety exception) to apply, the Commonwealth must be able to satisfy three requirements. First, police officers must be able to point to specific, objective, and articulable facts that would suggest to an experienced officer that a citizen is in need of assistance. Further, the Court found that the Trooper in this case could not do so because there were too many reasons why the defendant could have pulled over on the side of the road. The Court noted that the defendant could have needed to look at a map, answer or make a telephone call, send a text message, change an address in a navigation system, clean up a spill, or retrieve something from her purse or the glove compartment. Pulling over to the side of the road to do these types of things should be encouraged.

Second, in order for the exception to apply, the police caretaking action must be independent from the detection, investigation, and acquisition of criminal evidence. This does not mean that an officer must completely ignore the nature of his or her role in law enforcement, but it does mean that the courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse and ensures that police do not use the exception as a pretext for obtaining evidence without a warrant.

Third, the level of the intrusion must be commensurate with the perceived need for assistance. This requires the suppression court to evaluate the circumstances surrounding the seizure, including but not necessarily limited to, the degree of authority or force displayed, the lengthy of the seizure, and the availability of alternative means of assistance.

Here, the Court found that the Trooper did not have any reason to believe that the defendant needed assistance. He had not received a report that a motorist needed help, he did not observe anything that indicated there was a problem with her vehicle, the weather was fine, and the defendant did not have her hazard lights on. Accordingly, the Court reversed the decision of the trial court and ordered that the blood test and other evidence seized as a result of the illegal stop be suppressed.

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PA Supreme Court: Parole Agents May Frisk You Even If You Are Not On Parole

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Mathis, holding that a parole agent may detain and frisk a non-parolee visitor to the parolee’s home while performing a routine home inspection if the parole agent acts on reasonable suspicion that the visitor is engaged in criminal activity and armed.

Commonwealth v. Mathis - Can a Parole Agent Search Someone Who Is Not On Parole During a Routine Home Visit? 

In Mathis, parole agents conducted a routine check of a parolee’s home which was located in a high crime area in Dauphin County. When they arrived, they immediately recognized the strong odor of marijuana throughout the home. As they walked through the house, they observed the defendant, Mathis, receiving a hair cut from the parolee who they were there to check up on. The parolee identified the parole agents to the defendant, and the agents then questioned the parolee as to why the house smelled like marijuana. The agents also found an ashtray full of marijuana roaches in the front room, but they did not see anyone smoking marijuana. 

While one of the agents questioned the parolee, the other agent monitored Mathis. Mathis repeatedly got up from his chair and walked to the kitchen, apparently checking text messages on his cell phone. The parole agents asked him to stop using the cell phone while they were there because he seemed nervous. They asked him to leave until they finished speaking with the parolee. Mathis began to leave, and as he gathered his belongings, one of the agents noticed that he picked up his jacket as if holding it up to his body like a football or a baby. Mathis appeared to try to put his body in between the agents and the jacket, and he continued to hold it in a strange manner. The agents also noticed a bulge coming from the jacket which was roughly the size and shape of a gun. 

The agents became concerned for their safety, so they asked Mathis if they could pat him down. He refused, but one of the agents reached out and touched the jacket. The agent immediately felt what he believed to be a firearm. They then handcuffed Mathis, patted him down, recovered a bag of marijuana from between his feet, and recovered a handgun from the jacket. Because Mathis was prohibited from possessing a firearm due to his prior criminal record, the agents called the police. The police arrived, recovered the gun, and charged Mathis with gun charges, marijuana charges, and possessing drug paraphernalia.

Motion to Suppress

Mathis filed a pretrial motion to suppress the gun, arguing that the parole agents had no right to search him because he was not on parole. The trial court denied the motion to suppress, found him guilty of drug possession and gun possession, and sentenced him to thirty-two to sixty-four month’s imprisonment. Mathis appealed, and the Superior Court affirmed.

The Pennsylvania Supreme Court reviewed the case and upheld the decision of the Superior Court. The Court concluded that parole agents may conduct a Terry frisk under these circumstances for their own safety. Although parole agents may not act as police officers with respect to non-offenders or private citizens, they do have the right to protect themselves.

Parole agents are required to supervise offenders in part by conducting routine, unannounced home visits, thus risking exposure to a variety of potentially dangerous unknowns. Interactions with non-offenders are often going to occur during home visits, and parole agents have an obligation to make sure that the parolee is not living or associating with people who have been convicted of certain criminal offenses.

Parole agents are also legally classified as “peace officers,” giving them the power to make a lawful arrest upon reasonable suspicion of a felony and the authority to use deadly force to protect themselves and carry firearms. Because a parole agent has the authority to use deadly force for the protection of himself or herself and others, the agent has the authority to prevent the need for deadly force in the first place by conducting a Terry frisk when necessary.

Finally, the Court noted that the purpose of the Terry frisk is not to conduct an investigation or find evidence; instead, it is merely to check for deadly weapons so that the officer can do his or her job without fear of bodily injury. Accordingly, the Supreme Court concluded that a parole agent may conduct a frisk for weapons so long as the agent has reasonable suspicion to do so. Reasonable suspicion requires “specific and articulable facts” that criminal activity is afoot, and the authority to frisk also requires that the officer or agent have reason to believe that the suspect is armed and dangerous. 

There Are Still Limits On Probation and Parole Searches

Unfortunately, the Mathis Court's decision serves to eliminate important privacy rights for anyone who associates with someone who is on state parole. If someone has the bad luck to be present at a parolee's residence when agents show up to conduct an unannounced search, that person will now be at risk of being searched by parole agents despite the fact that they are not even on parole. This is particuclarly true for anyone who lives with someone who is on state parole; that person will now have substantailly reduced privacy rights just by virtue of who they live with. However, some protections remain in that the parole agents are still required to have reasonable suspicion and cannot conduct a search for general investigatory purposes. Therefore, motions to suppress will likely still be brought in many of these cases.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia Criminal Defense Lawyers have successfully defended thousands of cases. We offer a free, 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attoreny today. 

Can My Probation Officer Search My Cell Phone?

Probation and Parole Searches of Cell Phones

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Murray, rejecting the defendant’s challenge to his conviction on corpus delicti grounds and holding that a probation officer or parole agent may search a probationer’s cell phone without a search warrant.

Commonwealth v. Murray

In Murray, the defendant was charged with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105. Murray’s Pennsylvania State Parole Agent became suspicious that Murray may have been involved in criminal activity after the Agent visited Murray’s group home for a home visit and Murray was not present. When Murray next reported to the parole office, the agent asked him about his living situation and why he had moved without permission. Murray explained that he had been threatened by a housemate with a gun. Murray told the agent that he wrestled the gun away from the housemate and gave it to another acquittance.

Because Murray admitted to possessing a firearm, the agent took him into custody and proceeded to read the text messages on his cell phone. The agent found two incriminating text messages which had been sent right before Murray reported. One told a friend: “Yo, Kel if you didn’t hear from me by tonight I am locked up. So, my stuff is over 1247 West Huntingdon Street.” The other stated: “And the thing I was telling you about that I took from the bully is in the bathroom right under the tub.”

Of course, parole agents went to search the group home at 1246 West Huntingdon Street and found a gun under the tub in the bathroom. The agents then called the police and gave the gun to the police. The police then charged Murray with possessing a firearm as a felon.

Murray moved to exclude the statements made to the parole agent regarding the gun and also moved to suppress the results of the warrantless search of his cell phone. The trial court denied both motions. Murray was convicted of the gun charge and sentenced to 4.5 – 9 years in prison.

On appeal, Murray raised two main issues. First, he argued that the Commonwealth failed to satisfy the corpus delicti rule because it failed to show that a crime had been committed prior to introducing the statements made by Murray. Second, he argued that the parole agent should have been required to get a warrant before searching his cell phone.

The Corpus Delicti Rule

The Superior Court rejected both arguments. First, the Superior Court rejected the corpus delicti challenge. The corpus delicti rule is a rule of evidence which prohibits the prosecution from introducing an incriminating statement against the defendant unless the prosecution can first show that a crime has occurred. The prosecution does not have to prove the crime beyond a reasonable doubt, but it must show that the evidence is more consistent with a crime than with an accident. The corpus delicti, latin for “body of the crime,” may be proven by circumstantial evidence.

Here, the parole agents found a gun in a group home where Murray and numerous other parolees lived. The gun was hidden inside a plastic bag under a bathtub in the only bathroom in the boarding house. Therefore, the Court concluded that because the gun was hidden in such a way, it was more likely than not that the person to whom the gun belonged possessed it illegally. Accordingly, Murray’s statement about possessing the gun did not violate the corpus delicti rule.

Probation Officers May Search a Cell Phone Without a Warrant

Second, the Superior Court rejected Murray’s challenge to the warrantless search of his cell phone. In many situations, the police may search a person’s belongings when they take that person into custody as part of an arrest. This is known as the search incident to arrest exception to the warrant requirement. For many years, this exception permitted the police to search an arrestee’s cell phone. Recently, in Riley v. California, the United States Supreme Court held that in general, police must obtain a warrant before searching a cell phone. The Superior Court, however, distinguished Riley by finding that parolee’s and probationer’s have a reduced expectation of privacy. Riley did not involve the cell phone of a suspect who was on probation or parole. Because probation officers and parole agents may conduct a search of a probationer’s house with reasonable suspicion and without having to obtain a warrant, the Superior Court held that the same rule should apply to a cell phone. Thus, a probation officer or parole agent must only have reasonable suspicion in order to search a cell phone.

The Court concluded that the agent has reasonable suspicion to search the phone because Murray admitted to possessing the firearm and giving it to someone else. The agent had reasonable suspicion that the phone could contain text messages discussing the gun or photos of Murray with the gun. Therefore, the Court affirmed the trial court’s decision to deny the Motion to Suppress.

Philadelphia Criminal Defense Lawyers for Gun Charges

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

If you are charged with a VUFA offense, you need an attorney who has the knowledge and expertise to fight your case. 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. 

Conviction for Possession of Firearm with Obliterated Serial Number Requires Intentional Modification of Serial Number

The Pennsylvania Superior Court has just announced its decision in Commonwealth v. Ford, holding that a defendant may not be found guilty of 18 Pa.C.S. § 6110.2 (Possession of Firearm with Altered Manufacturer’s Number) when the numbers were altered through natural corrosion instead of intentional action. This decision protects individuals who own older firearms which have faded serial numbers. In Philadelphia, firearms offenses are taken very seriously, and prosecutors will often pursue severe sentences for defendants convicted of gun charges. If you are charged with possessing a firearm with an obliterated serial number or any offense involving a gun, it is crucial that you contact an attorney who is familiar with the law and is willing to fight for you.   

Commonwealth v. Ford

In Ford, Philadelphia Police Officers received radio calls for a person bleeding and a person with a gun at 2010 Wilmot Street. The officers went to the backyard of that address, but no one was there. As they proceeded through an alleyway onto Ditman Street, the officers were then directed by bystanders to 4663 Ditman Street. While standing on the porch of that address, one of the officers heard screaming coming from inside the house. Based on the screaming, the high crime level in the neighborhood, and the radio call, the officers decided to knock on the door. When no one answered, the police entered the property without a warrant.  

Once inside, the officers saw the defendant put an object which turned out to be a gun on the kitchen chair next to him. Officers promptly arrested the defendant after recovering the .38 caliber silver handgun. When officers looked at the gun, they could not see the manufacturer’s serial number. Because all modern firearms are required by law to have a serial’s number, the officers arrested the defendant and charged him with various Violations of the Uniform Firearms Act, including 18 PA C.S.A. § 6110.2 (possession of a firearm with an obliterated or altered serial number) and 18 PA C.S.A. § 6105 (possession of a firearm by a felon).

The defendant filed a Motion to Suppress, alleging that the gun should be suppressed because the police did not have a warrant when they entered the property. The Commonwealth responded that the officers were acting under the exigent circumstances exception. The exigent circumstances exception permits police to enter a house without a warrant under very limited circumstances – essentially, there must be a bonafide emergency or they must be in hot pursuit of a fleeing felon. After the officers testified to the reasons for entering without a warrant and argument from counsel, the trial court denied the Motion to Suppress. On appeal, the Superior Court affirmed, finding that though the police officers did not obtain a search warrant to enter the defendant’s home, the officers had probable cause and that there were exigent circumstances that warranted police entering his home given the radio call, the screaming, and the high crime nature of the area.

After the Motion to Suppress was denied, the defendant proceeded to trial by way of bench trial. Both the Commonwealth and the defense agreed that the serial number of the firearm had been obscured by corrosion as opposed to having been intentionally obliterated by the defendant. Nonetheless, the trial court found the defendant guilty of both possession of a gun by a felon and possession of a gun with an obliterated serial number, and the court sentenced him to a lengthy state sentence. The defendant appealed, arguing both that the trial court should have granted the Motion to Suppress and that the obliterated firearm statute does not make it illegal to possess a firearm where the serial number naturally wore away over the years and was not intentionally removed.

What is § 6110.2 (possession of a gun with an obliterated serial number)?

§ 6110.2 is one of several statutes that collectively form the Pennsylvania Uniform Firearms Act. In Philadelphia, charges brought under the Act are commonly referred to as VUFA charges, or Violations of the Uniform Firearms Act. § 6110.2 makes it illegal to possess a firearm which has the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated.” Further, unlike some of the other VUFA statutes, § 6110.2 does not require that the firearm be operable. Also, it is not a defense to § 6110.2 that the defendant possessed the gun at his or her residence or place of business, making the statute very different from § 6106 (possessing a concealed firearm or a firearm in a car without a license to carry) and § 6108 (possessing a firearm on the streets of Philadelphia). Further, § 6110.2 has recklessness as its mens rea, making it easier for prosecutors to prove as this is a lesser mens rea than other offenses (i.e. specific intent, where a defendant specifically intended to commit a particular crime) and thus easier for the Commonwealth to prove. So, typically, § 6110.2 can be difficult to defend if a defendant is not successful at the suppression hearing.   

The Superior Court Restricts § 6110.2

The issue in Ford was whether possessing a firearm with the serial number that had merely corroded would be sufficient for a conviction under § 6110.2. The Superior Court concluded that it would not. In making its decision, the Superior Court employed statutory interpretation to determine what the General Assembly intended when it passed § 6110.2. As previously stated, it is illegal to possess a firearm when the manufacturer’s number is either altered, changed, removed or obliterated. Throughout Ford, the Superior Court emphasized that it would not “add” to § 6110.2, by quoting Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) holding that “although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.”   

The Superior Court began its analysis by consulting the Crimes Code. § 6102 is the definitions section of the VUFA statutes, however “altered,” “changed,” “removed” or “obliterated” are not defined in this section. The Superior Court then turned to Webster’s Dictionary for guidance. They summarized their findings as follows:

[W]e consult[ed] the dictionary, which defines (1) “alter” as “to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing it into something else,” (2) “change” as “to make different . . . in some particular but short of conversion into something else . . . [or] to make over to a radically different form, composition, state, or disposition,”; (3) “remove” means “to get rid of as by moving” as in eradicate or eliminate, and is synonymous with erase; and (4) “obliterate” as “1 : to remove from significance and bring to nothingness : as a: to make undecipherable or imperceptible by obscuring, covering, or wearing or chipping away . . . b: to remove utterly from recognition . . . or c (1): to remove from existence : make nonexistent : destroy utterly all traces, indications, significance of . . . (2) to cause to disappear[.]”  

            Based on this analysis, the Superior Court held that natural corrosion did not fall within the definitions of altered, changed, removed, or obliterated. Therefore, the defendant should not have been found guilty of § 6110.2. Because the defendant’s conviction for § 6110.2 ran concurrent to his § 6105 conviction and was identical to it, the Superior Court then vacated the defendant’s sentence for § 6110.2, but did not remand it for resentencing.

VUFA Cases and Weapons Offenses

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

If you are charged with a VUFA offense, you need an attorney who has the knowledge and expertise to fight your case. 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.