PA Superior Court Finds Police-Created Exigent Circumstances Support Warrantless Blood Draw in Homicide by DUI Case

The Pennsylvania Superior Court has decided the case of Commonwealth v. Trahey. In Trahey, the Court held that because Philadelphia Police were understaffed, failed to respond to the incident in a timely manner, and did not have procedures in place for quickly obtaining a warrant by electronic means, officers were justified in conducting a warrantless blood draw of a suspect who had been arrested on suspicion of Homicide by DUI. The opinion is an absurdity which suggests that because the Philadelphia Police have not taken adequate steps to investigate cases and create procedures for quickly obtaining search warrants even in potential homicide cases, they can ignore the United States Supreme Court's holding in Birchfield that drawing a suspect's blood in a DUI case requires voluntary, uncoerced consent or a search warrant. 

Commonwealth v. Trahey

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

On September 4, 2015, which was Labor Day weekend, 911 dispatchers received a report that a car had struck a cyclist on the 4900 block of Wynnewood Avenue in Philadelphia. Despite the call about someone being struck, police were not dispatched to the scene until approximately 45 minutes after receiving the call. Officers testified that this was “due to the lower priority of auto accidents on the hierarchy of circumstances in which Philadelphia Police Officers are dispatched to emergency situations.” The 911 call did not mention that this may be a DUI-related crash or that someone had been seriously injured. 

Upon arrival, police officers observed a smashed bicycle and a pickup truck that was partially on the sidewalk. The police testified that the truck’s hood and grill were damaged, its windshield was shattered, and there was blood on the street. The officers spoke to a group of bystanders who informed them that the defendant had been driving the truck and the cyclist, who he had hit, had been transported to the hospital. Unfortunately, the cyclist died as a result of this incident.

The defendant told one of the officers that he was the driver of the truck that struck the cyclist. While speaking with the defendant, the officer noticed that the defendant had a strong odor of alcohol on his person, his speech was slow and slurred, his eyes were glassy, and he had an unsteady gait. Based on these observations, the officer believed that the defendant was under the influence of alcohol. The officer arrested the defendant for DUI. It does not appear that any field sobriety tests were performed despite the fact that the officers were on the scene for approximately 45 minutes before they arrested the defendant. They then left the scene to transport the defendant to police headquarters for booking and presumably for a blood test.            

While en route to police headquarters, the officers were called back to the scene by the Accident Investigation District (AID). AID is a unit that investigates car accidents and DUI cases. One of the AID officers examined the defendant and also noticed signs of intoxication. The AID officer learned that nearly ninety minutes had already passed since the crash. This is significant because police have two hours to do a blood test or a breathalyzer after they arrest someone on suspicion of DUI. After two hours, the results of the test become significantly less accurate. The rules therefore suggest that a court should not allow prosecutors to use the results of an untimely test. Consequently, one of the AID officers sent the defendant back to the police headquarters for a blood test and/or breathalyzer.

When the defendant arrived at police headquarters, he gave verbal consent to the blood testing, and he signed a 75-439 form which is the written version of these warnings. However, on this form, he did not check the box that consented to blood testing. After all of this, the defendant had blood taken from his arm. It was two hours and five minutes after the accident occurred. The defendant was subsequently charged with homicide by vehicle, homicide by vehicle while driving under the influence, involuntary manslaughter, and DUI. He then filed a pre-trial suppression motion in which he argued that the police subjected him to an unlawful search by taking his blood without a search warrant. 

The Motion to Suppress 

Several police officers testified at the hearing. They generally testified that officers would not have had sufficient time to seek a warrant for the chemical testing of the defendant’s blood within two hours of the accident. They also testified that a significant amount of time had elapsed before the officers were able to respond to the accident scene and that they did not know this was potentially a DUI related accident. It is important to remember that the 911 call did mention that someone had been struck by an automobile, yet apparently this had no effect on the promptness of the Philadelphia police’s response time to the scene of the accident.

The officers provided a number of different reasons for why they could not get a warrant within the two-hour time frame. This included: it would have taken too long to type up the warrant, drive from the accident to the AID headquarters, communicate with the on-call prosecutor for approval of the affidavit, arrange to meet with an available commissioner to consider the warrant application, travel to arraignment court, wait for a commissioner, have the commissioner review the application, and then return to the police headquarters with the approved request. The officer estimated that the entire process could take anywhere from seventy minutes to three hours.

At the conclusion of the hearing, the trial court granted the defendant’s motion to suppress.  The trial court held that the defendant’s oral consent was invalid because of the United States Supreme Court’s decision in Birchfield v. North Dakota (which holds that the government cannot subject you to a penalty by refusing to consent to blood testing). However, the suppression court did not address the exigent circumstances argument posed by the Commonwealth. The Commonwealth then filed a timely interlocutory appeal.

What is the “Exigent Circumstances” Exception to the Warrant Requirement?

Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution protect individuals from unreasonable searches and seizures. Usually, this means that if the government wants to go into your home or take something from your body (i.e. blood) the government needs a warrant to do so. However, throughout the years, both federal and Pennsylvania case law has evolved to include an “exigent circumstances” exception. Typically, this is limited to circumstances where there is a reasonable belief that evidence will be destroyed unless the police take prompt action. Courts use a totality of the circumstances approach to analyze the facts of a particular case in determining whether there were exigent circumstances.     

To give an example of exigent circumstances, let’s say a police officer sees someone engage in a hand-to-hand exchange of drugs for money. The police then approach the defendant, and he runs into a house. The police officer follows him into this house and seizes drugs from his person. At a motion to suppress, the Commonwealth may reasonably be able to argue that there were exigent circumstances because if the police officer had not gone into the house, the defendant would have had time to flush the drugs down the toilet or find some other way to destroy them. Therefore, depending on all of the circumstances, a court could rule that the officer was not required to obtain a search warrant and deny the defendant’s motion to suppress.

The exigent circumstances exception has been applied in DUI cases, as well. This is understandable to some extent because alcohol in a person's blood dissipates relatively quickly.  However, exigent circumstances do not automatically apply in DUI cases solely from the fact that alcohol eventually dissipates. The United States Supreme Court addressed this issue in the case of Missouri v. McNeely. The Court held that the natural dissipation of alcohol in a person’s bloodstream is not a per se (automatic) exigency and held that the police are not free from the requirement of obtaining a search warrant to obtain a DUI suspect’s blood. However, McNeely also did not hold that the police must always get a warrant to take a DUI suspect’s blood. The McNeely court acknowledged that obtaining a warrant is not always practical in DUI cases. Therefore, in cases where the police do not get a warrant, courts must analyze the facts of a given case to determine whether it was objectively reasonable for the police to draw blood without a search warrant.       

The Pennsylvania Superior Court Holds That Easily Resolved Logistical Challenges Qualify as Exigent Circumstances

In Trahey, the suppression court did not address the issue of exigent circumstances.  Nonetheless, instead of remanding the case for the suppression court to consider whether there were exigent circumstances, the Superior Court improperly decided to conduct the analysis itself. Of course, it found that there were exigent circumstances in this case. What is absurd about the Superior Court’s decision is that the exigent circumstances that the Court found in favor of the Commonwealth were entirely created by the Philadelphia Police Department's poor performance in giving the call priority and failure to create electronic or telephonic procedures for obtaining a search warrant. Such procedures for quickly obtaining a search warrant in emergency situations obviously exist in countless jurisdictions both small and large throughout the country, but the Superior Court refused to suggest that a jurisdiction as large as Philadelphia should be expected to implement them. 

The Superior Court gave a slew of reasons as to why there were exigent circumstances in this case. One of the reasons was that that the officers did not arrive on scene until 45 minutes after the accident. However, this was because the emergency dispatch in Philadelphia does not prioritize car accidents for police response (apparently even when the 911 call indicates that someone has been hit). Further, when the police arrived on scene, it took an additional 45 minutes for the officers to determine that the defendant may have been under the influence of alcohol or a controlled substance. This determination was not because the officers had the defendant engage in any field sobriety tests. Rather, it took this long based on their observations of the defendant and conversations with him and bystanders. Additionally, the Superior Court noted that on this particular night, the Philadelphia police lacked manpower because only 5 AID officers were assigned to Philadelphia on Labor Day weekend.

As such, all of these exigent circumstances were a consequence of the failures of the Philadelphia Police to be adequately prepared. Thus, arguably, the police created the exigent circumstances in this case. Courts have held that if the police create the exigent circumstances, they are not entitled to sidestep the protections of the Pennsylvania and the United States Constitution. However, the Superior Court’s decision in Trahey does exactly that: it incentivizes the police to not be prepared so that they can later claim exigent circumstances and evade the Constitution's search warrant requirement. Trahey will likely be appealed, and hopefully an en banc panel of the Court or the Pennsylvania Supreme Court will reverse it and require law enforcement to comply with the Pennsylvania and United States Constitutions. 

Award-Winning Philadelphia Criminal Defense Attorneys

Philadelphia DUI Defense Attorneys

DUI cases can be complicated. However, there are several ways to beat them. If you are charged with DUI, you need a skilled attorney with the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully defended countless DUI cases. 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. 

PA Supreme Court Agrees Police May Not Search Cell Phone Without Warrant

Zak Goldstein - Philadelphia Criminal Defense Attorney

Warrantless Searches of Cell Phones in Pennsylvania

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Fulton, agreeing with the United States Supreme Court that law enforcement officers generally may not search a cell phone incident to a defendant’s arrest without first obtaining a search warrant. The Court further concluded that the introduction of the evidence obtained from the illegal search of the defendant’s phone in this homicide case did not amount to harmless error. Therefore, the Court reversed the defendant’s conviction and ordered a new trial.  

The Facts of Commonwealth v. Fulton

On June 15, 2010, Philadelphia police received a call from Michael Toll reporting that he had been shot. Police responded to the call and found Toll in a vehicle on the sidewalk with gunshot wounds on the right side of his body. Toll told the police that Jeff shot him, and he gave them a description of Jeff. Police took Toll to the hospital and searched the car. They recovered a cell phone, and the cell phone showed that Toll had exchanged phone calls with someone listed in the phone as Jeff. Police determined that the number for Jeff was linked to a prepaid phone with no subscriber information.

Toll eventually died from his wounds. On the morning that he died, police received a call concerning drug activity and a man with a gun at a specific address. Police responded to the call and found several individuals in and around a 2002 green Mercury Marquis. The police saw a gun, a gun holster, and cell phones in the vehicle. They arrested the four men who were nearby. One of those men was Fulton, the defendant in this case. Police took a cell phone from Fulton incident to his arrest and obtained a search warrant for the vehicle but not the phone.

The Search of the Phone

The phones were given to Homicide Detectives who were investigating Toll’s death. The detectives opened the phones, turned them on, and examined them in order to determine the phone number associated with each phone. One of the phones turned out to have the same number as the phone number for Jeff that was in the decedent’s phone. Homicide detectives did not obtain a warrant prior to going through the phones. Further, detectives began answering incoming calls to the phone that had been linked to Jeff.

One person called and eventually told detectives that the phone number belonged to Fulton and that she regularly purchased heroin from him. Armed with this information, detectives interrogated Fulton, and Fulton promptly incriminated himself in the shooting. Police obtained a search warrant for Fulton’s residence and found ammunition which was the same as that used in the fatal shooting. Police also interviewed some of the other men who they had arrested along with Fulton and obtained statements from them which implicated Fulton in the murder. Accordingly, police charged Fulton with murder.

The Motion to Suppress

Prior to trial, Fulton moved to suppress the evidence obtained from the warrantless search and use of the cell phone. The trial court denied the motion, but the trial court made its decision prior to the United States Supreme Court’s decision in Riley v. California holding that police must obtain a warrant prior to searching a cell phone. Fulton went to trial and was eventually convicted of third-degree murder and sentenced to 15-30 years of incarceration. Fulton appealed to the Superior Court, and the Superior Court denied the appeal.

By the time of the Superior Court’s decision, the United States Supreme Court had held that police may not search a phone without a warrant. The Superior Court recognized that police should have obtained a search warrant for the phone, but it held that the intrusion into the phone was minimal because police did not review personal data or social media located on the phone. Therefore, the Superior Court held that Riley did not apply. It also found that to the extent that the police violated Fulton’s rights, the introduction of the illegal evidence amounted to harmless error which would not justify overturning the third-degree murder conviction.

Petition for Allowance of Appeal

Fulton filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court ultimately overturned the defendant’s conviction. The Court concluded that there was really no dispute. Riley’s holding could not be clearer: in order to access any information on a cell phone, police must first obtain a warrant. The Supreme Court did not create an exception for what police or courts may deem a minimally invasive search of a cell phone. The Court specifically rejected a case-by-case test for searches of phones. Instead, it held that police simply must get a warrant or they cannot use the results of the search of a cell phone in court. Any search of a cell phone requires a warrant.

The Court concluded that homicide detectives conducted three separate searches of the phone without a warrant. First, they searched the phone by powering it on. Second, they searched the phone by going into it and obtaining its phone number. Third, they searched the phone by monitoring incoming calls and text messages.

Philadelphia Criminal Defense Lawyers

Having concluded that the police violated Fulton’s rights by searching the phone without a warrant, the Court next found that the constitutional violation did not amount to harmless error. The Court ruled that all of the evidence that was found due to the searches of the phone must be suppressed. This included the existence of the woman who identified Fulton as a drug dealer, her statement, and the evidence that the phone number was the same number as that for Jeff. Given the extensive use of this evidence against the defendant at trial and the fact that much of the evidence was contradicted and inconsistent, the Supreme Court rejected the idea that the conviction could stand under the harmless error doctrine. Accordingly, the Court vacated the conviction and ordered a new trial for Fulton without the illegally seized evidence. 

Anonymous Tip Cannot Provide Reasonable Suspicion for Police Stop

Can the the police stop someone based on an anonymous 911 call? 

Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Mackey, once again holding that an anonymous tip of criminal activity, no matter how serious, does not provide police officers with the reasonable suspicion necessary to stop, arrest, or search a suspect. This is true even when the tip is for a person with a gun on a SEPTA bus. Although this has long been settled law, trial courts routinely attempt to disregard this rule in cases involving guns and drugs.

Commonwealth v. Mackey

In Mackey, Philadelphia Police Officers received an anonymous radio call for a person with a gun on a specific SEPTA bus. The radio call further described the person as “a black male wearing a white T-shirt and a flowered hat.” The officer who received the tip responded immediately, stopped the bus, and boarded the bus. Upon boarding the bus, which contained 50 to 60 passengers, the officer saw the defendant on the bus wearing a pink and green flowered hat and a shirt that was white on the back and black on the front. The officer testified that the hat was extremely distinctive in that it was a bucket hat patterned with pink and green flowers.

As soon as the officer saw the defendant and realized that the defendant matched the description from the anonymous radio call, the officer pulled his gun, pointed it at the defendant, and ordered him to raise his hands. The defendant sat up straight while the other passengers ducked for cover. The officer then handcuffed the defendant and removed him from the bus. He testified that as the defendant was being escorted from the bus, he waddled in a strange way, suggesting that he might have been walking that way to keep a gun from falling out of his loose-fitting pants. Once they were off the bus, the officer frisked the defendant and found a gun. He arrested the defendant and charged him with various gun charges.

Motion to Suppress the Firearm

The defendant filed a motion to suppress, arguing that under well-established case law, the police did not have the right to stop him and frisk him based on a totally anonymous radio call. At the evidentiary hearing for the motion to suppress, the officer was unable to provide any additional information about the radio call relating to who called it in. The officer also could not provide any specific reason for why he believed the call to be trustworthy prior to stopping and searching the defendant.

The trial court denied the motion to suppress. The Commonwealth and the court relied on the fact that the tip contained a great deal of detail and that the defendant waddled in a strange way while exiting the bus. The Commonwealth also stressed that the defendant sat up very straight while everyone else on the bus ducked for cover. The court denied the motion, found the defendant guilty following a bench trial, and sentenced him to 2 to 5 years in state prison followed by three years of probation.   

Mackey's Appeal to the Pennsylvania Superior Court

The defendant immediately appealed, and on appeal, the Superior Court reversed the conviction and the denial of the motion to suppress. The Superior Court heavily emphasized the difficulty in these cases. On one hand, police are fully expected to respond to a 911 call for a person with a gun, and the failure to do so could have disastrous consequences. At the same time, an anonymous radio call simply provides the police with no way to determine whether the call is genuine and reliable. If such a call provides the police with the basis for stopping and searching a suspect, then there are few protections for anyone as the police would be able to stop a person based on a prank phone call or even where another police officer has anonymously called 911 in order to provide the basis for the stop.

The Superior Court recognized that a long line of cases, including Commonwealth v. Jackson and Commonwealth v. Hawkins, have repeatedly held that the police may not conduct a stop based on anonymous information. The Commonwealth has repeatedly asked the courts to find a public safety or firearms exception to the warrant requirement in these cases because of the risk created by firearms, and the courts have unanimously rejected such an exception as unconstitutional. This case was no different. Accordingly, the Superior Court found that the officer did not have reasonable suspicion to stop the defendant. Finally, the Court found that the defendant was immediately seized when the officer entered the bus and pointed a gun at him. Because the officer only found the gun and noticed the waddling after stopping the bus, boarding it, and pointing a gun at the defendant, the waddling and strange behavior could not be used to provide reasonable suspicion because it happened after the illegal seizure. Accordingly, the Court reversed the denial of the motion to suppress, vacated the firearms convictions, and remanded the case for a new trial without the suppressed guns.    

Cases like Mackey are extremely important because they protect citizens from unconstitutional police searches even in cases involving charges as serious as illegal gun possession charges. They also prevent Pennsylvania citizens from being harassed and searched based on unreliable or even knowingly false information by requiring the police to show some evidence of reliability in the information before acting on it. At the same time, the officer’s hands were not totally tied. The officer likely would have been justified in getting on the bus and asking Mackey if he could ask him a few questions. If Mackey then acted nervously, walked strangely, or the officer observed a gun shaped bulge, the officer then may have been able to conduct the frisk lawfully. Instead, the officer immediately pointed a gun at the defendant without any basis for believing the tip, and this is particularly problematic given the fact that it is legal to carry a gun with a permit in Pennsylvania.

OUR PHILADELPHIA CRIMINAL DEFENSE LAWYERS CAN HELP YOU WITH WEAPONS AND FIREARMS OFFENSES

Philadelphia Criminal Defense Lawyers

If you are charged with the illegal possession of a gun or other weapons offense, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. We have won countless cases involving firearms and other weapons offenses at the prelminary hearing, motion to suppress, and trial court levels. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session. 

PA Supreme Court: Police May Not Search Car Parked in Driveway Without Warrant

Can The Police Search My Car Without A Warrant If It's In My Driveway?

Criminal Defense Attorney Demetra Mehta, Esq.

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Loughnane, holding that the automobile exception to the warrant requirement does not apply to a car parked in a residential driveway. This decision provides a commonsense limitation on the ability of the police to search private property in Pennsylvania and follows a recent trend of the Pennsylvania Supreme Court seeking to increase privacy protections for the Commonwealth's citizens. 

Commonwealth v. Loughnane

In Loughnane, the defendant was charged with accidents involving death or serious injury. On July 24, 2012, a large dark-colored truck struck and killed the victim while she was outside of her apartment that she shared with her boyfriend in Wilkes-Barre, Pennsylvania. Her boyfriend witnessed the accident. When the boyfriend reported the accident to the police, he told them that the truck which hit the decedent was a large, dark-colored truck that had a distinctive sound.  

A few weeks later, the boyfriend's father drove through a residential neighborhood and saw a truck that matched the description provided by his son parked in a residential driveway. He called his son, and his son came to this residence and identified the truck as the one he saw on July 24. The boyfriend then called the police. Later that day, police detectives went to the house, ran the truck's license plate, and determined that the truck belonged to the defendant. Detectives then unsuccessfully attempted to contact the defendant.  

After failing to reach the defendant, police sought guidance from the local prosecutors. Apparently, at some point during the investigation, the lead detective learned that the keys to the truck were inside the automobile. Believing that it was about to rain and potential forensic evidence could be lost, the police decided to take action without obtaining a search warrant. They towed the truck to the Wilkes-Barre police garage. Four days later, they obtained a search warrant for the vehicle. The search did not result in the discovery of any evidence. However, they brought the boyfriend back to the police station to make a second identification of the truck. They also turned the truck on and revved the engine, and the boyfriend confirmed that the engine sounded the same as the engine on the truck that hit the decedent. 

The defendant was arrested and charged with Accidents involving death or serious bodily injury (hit and run). The defense filed pre-trial Motions to Suppress. At the Motion to Suppress hearing, the defendant's defense lawyer successfully moved to suppress the boyfriend's police station identification of the vehicle. The suppression court granted the motion because the truck was taken from the defendant's private property and there were no exigent circumstances that justified the warrantless taking of the truck. The Commonwealth then filed an interlocutory appeal. The Superior Court reversed the decision of the trial court and ordered that the Commonwealth be allowed to use the results of the warrantless seizure. In its opinion, the Superior Court inexplicably ruled that a private driveway does not provide any reasonable expectation of privacy becasue it is not part of the curtilage of a home. This ruling was contradicted by dozens of cases in Pennsylvania, the federal courts, and other states.  Therefore, the defendant then asked the Pennsylvania Supreme Court to review the Superior Court's decision, and the Supreme Court agreed. 

Limits to the Automobile Exception

On appeal, the defendant asked the Pennsylvania Supreme Court to decide whether the automobile exception applies to automobiles parked in driveways of private residences. The defendant argued that the automobile exception does not apply to vehicles in private residential driveways. As a preliminary matter, the Pennsylvania Supreme Court corrected the Superior Court and held that a driveway is constitutionally protected curtilage. This was crucial because in order to have a valid constitutional claim, one must have a reasonable expectation of privacy in the person, place, or thing that the government searched or seized.

The Pennsylvania Supreme Court then addressed whether the automobile exception applies to cars parked in a residential driveway. In making its determination, the Pennsylvania Supreme Court analyzed federal and other state cases that addressed the automobile exception.

In its analysis, the Pennsylvania Supreme Court highlighted the fact that in cases that upheld the automobile exception, a deciding factor was that the automobile was in a public space. This is consistent with the United States Supreme Court’s justification for the automobile exception (the inherent mobility of motor vehicles and that an individual has a reduced expectation of privacy in a vehicle as compared to an individual’s home or office).

However, the Pennsylvania Supreme Court did not end its analysis there. It also reviewed federal circuit court and other states’ decisions that found the automobile exception inapplicable. In those cases, the courts consistently held that the automobile exception did not apply when the car was parked in a residential driveway. The Pennsylvania Supreme Court went on to say that “[because] none of the justifications for the automobile exception apply to vehicles parked in a residential driveway, there is no reason for the exception to apply.” Thus, the Pennsylvania Supreme Court adopted the rationale of these courts and held that the automobile exception does not apply to automobiles that are parked in residential driveways. If the Commonwealth searches or seizes an individual’s car without a warrant, the limited automobile exception applies and there must be both probable cause and exigent circumstances.   

Motions to Suppress

Philadelphia Criminal Defense Attorney

Trials can be won and lost with a motion to suppress. If you are facing criminal charges, you need a defense attorney who has the knowledge and expertise to defend 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.