Philadelphia Criminal Defense Blog

Zak Goldstein 10/18/18 Zak Goldstein 10/18/18

PA Supreme Court: Consent to Search Car Does Not Necessarily Include Consent to K9 Search

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Valdivia, holding that a motorist’s consent to a police search of his car does not automatically include the consent to detain the motorist for 40 minutes and then conduct a canine search. Instead, the scope of the search by the police should have been limited to that for which a reasonable person expected he or she had provided consent.

The facts of Valdivia

In Valdivia, Pennsylvania State Police Troopers were on patrol in a marked police cruiser on Interstate 80 in Centre county, PA. At some point, they drove behind the defendant, who was driving a white minivan with Michigan plates. After two miles, they saw the van change lanes without using a turn signal. They decided to pull the defendant over. The defendant complied and pulled over to the side of the road.

The troopers both approached the vehicle. One of the troopers asked for the defendant’s license, registration, and proof of insurance. The defendant responded that he was about to run out of gas, but he provided the trooper with his Florida driver’s license and a rental agreement for the van. As troopers so often do, the trooper testified that the defendant seemed nervous and that his hands were shaking when he provided the documentation.

The troopers then began asking the defendant about his travel plans. He explained that he was on his way to New Jersey to visit family and provided an elaborate story about how he ended up renting a minivan instead of flying from Florida. From outside of the van, the trooper was able to see two large boxes wrapped in Christmas paper in the back of the van. The trooper found it odd that the gifts had no markings from an airline and that they were not banged up. He also later testified that drug traffickers often wrap up containers of drugs in Christmas paper during the holidays. The trooper also had concerns about the fact that the van had been rented thirty miles away from the airport for a one-way trip. He then ran the defendant’s record and found that he had priors for possession with the intent to deliver.

The troopers contacted a State Police K9 officer who was not currently on duty and asked him to come to the scene. While they waited for him, they told the defendant to get out of the van. They explained that they were going to provide him with a written warning for failing to use his turn signal when changing lanes. After returning his documentation, the trooper asked the defendant if he would answer a few more questions. The defendant said that he needed to get gas, but he would answer a few more questions. The troopers then continued to grill him about his travel plans and the paperwork for the van. The defendant’s story changed a little bit, the troopers became increasingly suspicious, and they then asked for consent to search the van. The defendant gave verbal consent first and then signed a written consent form, two things which you should virtually never do. The troopers had not told the defendant that a K9 officer was on the way.

Because it was cold, the troopers generously asked the defendant if he would like to wait in the back of the patrol car while they searched the minivan. The troopers then waited for the K9 officer; they did not start searching the minivan in the meantime. When the K9 arrived, the troopers removed the Christmas boxes from the minivan and had the K9 sniff them. The K9 “alerted",” suggesting that they were drugs in one of the boxes. The troopers opened the boxes and found lots of marijuana. They seized the marijuana, a mobile smartphone, and a tablet, and they arrested the defendant. Prosecutors charged him with possession of a controlled substance, possession with the intent to deliver, and possession of drug paraphernalia.

The Motion to Suppress - Were there limits to the consent to search?

The defendant filed a motion to suppress the marijuana, arguing that although he had consented to a normal search of the minivan, he had not agreed to wait for 40 minutes and then allow a K9 search. The trial court denied the motion. It found that the defendant voluntarily consented to the search and that it was not the product of police coercion. Further, it found that the defendant consented to the K9 search because he had not placed any limits on the scope of the search when he authorized the troopers to search his car. The court reasoned that because he was engaged in the transportation of drugs, he should have realized that troopers may use a dog for the search. The defendant then proceeded by way of bench trial, was found guilty of all charges, and sentenced to 11.5 to 23 months in jail followed by 30 days of probation.

The defendant appealed to the Superior Court. The Superior Court agreed with the trial court and affirmed the trial court’s decision. The Superior Court found it to be a close case, but ultimately ruled against the defendant. The Superior Court concluded that there is nothing about a K9 search which differentiates it from a human search when it comes to the issue of consent to search. The defendant then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Court accepted the case.

Consent to search does not automatically include consent to a K9 sniff

The Pennsylvania Supreme Court reversed the suppression court’s decision. It found that the consent to search provided by the defendant did not automatically include the consent to wait 40 minutes and then be subjected to a K9 sniff. In Pennsylvania, police typically need a search warrant or probable cause in order to search a motor vehicle. However, one exception to the probable cause requirement is that police may conduct a search without any level of reasonable suspicion or probable cause when the defendant agrees to it. Notably, New Jersey has a different rule in which police must have reasonable suspicion in order to request consent to search.

When is consent to search valid?

Although police need not have any level of suspicion in order to legally conduct a consensual search, there are some limitations with which they must comply even during a consent search. For example, they must have obtained the consent voluntarily. If the police obtained the consent by threatening to shoot the defendant, then that would probably not be voluntary consent. Additionally, the search must be limited to the scope provided by the suspect. This means that if the suspect agrees to a search of one room but not another, police cannot search that other room without obtaining a warrant or unless some other exception applies. When there is some ambiguity to the valid scope of the search, the scope is determined by what would be objectively reasonable. This means the court does not look to what the defendant actually intended or what the officer understood, but instead what a reasonable person would have understood by the exchange between the officer and the person.

Given the scope limitations on consent searches, the issue became whether the defendant should have reasonably expected that police would detain him for nearly an hour and then conduct a K9 search. The Supreme Court ultimately found that he should not have reasonably expected such police behavior. Courts have long held that a K9 search is different from a regular search, and the police did not mention to the defendant that they had a K9 on the way or that he would have to wait for such an extended period of time. The defendant gave two human officers permission to search his car. There was no K9 or K9 handler present at the time, and nothing about the interaction suggested that one was on his or her way. Under these circumstances, a reasonable person would not have anticipated a K9 search of the boxes. Accordingly, the troopers exceeded the scope of the defendant’s consent, and the trial court should have granted the Motion to Suppress.

Goldstein Mehta LLC Criminal Defense Attorneys

FACING CRIMINAL CHARGES? WE CAN HELP.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Possession with the Intent to Deliver, Aggravated Assault, Sexual Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 10/13/18 Zak Goldstein 10/13/18

PA Superior Court: Villanova University Campus Safety Officers Can Search Your Room

The Pennsylvania Superior Court has decided the case of Commonwealth v. Yim, holding that the Villanova Public Safety Officers are not state agents for purposes of the Fourth Amendment. This is a significant decision for those who attend private universities which do not have police forces because it means that campus safety officers may be able to search a dorm room without a search warrant.

Commonwealth v. Yim

On February 13, 2016, Villanova University’s Public Safety Officers became engaged in violent confrontations with two resident students and a female visitor who later admitted to ingesting LSD. These three individuals were restrained by the public safety officers until Radnor Police Officers arrived on scene. One of the residents lived at Good Counsel Hall, which is located on Villanova’s campus, with the defendant. It is important to note that although Villanova has now established an actual police force, at the time, its officers were not police. They did not have arrest powers or carry weapons or handcuffs. Further, Villanova is a private university.

As a condition of living at Good Counsel Hall, the defendant had signed a housing contract in which he consented to a search of a dorm room where it has been determined by public safety officers that items or individuals in a particular room pose a possible safety or health risk to the community. Later that day, the Villanova University Director of Public Safety was advised of the events that transpired involving the defendant’s roommate. The administration subsequently ordered a search of the defendant’s room.

Prior to searching the room, the administrators unsuccessfully attempted to contact the defendant by telephone. The Director of Public Safety, along with two Public Safety Officers, unlocked and entered the dorm room. Once inside, they observed contraband and cash strewn throughout the room. They saw a syringe in plain view on top of a desk. The defendant’s passport, cash, LSD “stamps”, marijuana, $8,865.00, and other drug paraphernalia was also found on and in the defendant’s desk.

After the contraband was recovered, the Director of Public Safety called the Villanova University dispatcher and asked him to contact the Radnor Police Department to report the discovery of the drugs and paraphernalia. The Radnor Police arrived on scene, but they remained in the hall outside the room. The police officers never entered the room nor did they participate in the search. After the public safety officers searched the room, they turned over the contraband and other items to the Radnor Police. The Public Safety Officers also provided an investigative report, which included photographs, for future use in University administrative proceedings. The police then obtained an arrest warrant for the defendant. He was eventually arrested and charged with possession of a controlled substance, possession of drug paraphernalia, and possession with the intent to deliver (“PWID”).

The defendant filed a motion to suppress the evidence seized from his person and the dorm room. The trial court denied the motion, ruling that the public safety officers did not need a search warrant to search the dorm room because they were not law enforcement officers and Villanova was not a public university. The trial court found the defendant guilty after a non-jury trial and sentenced him to a term of three to 23 months’ incarceration plus four years probation.

What is the Fourth Amendment?

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment often provides a defense to criminal charges relating to drug possession, illegal gun possession, or the possession of other contraband because it prevents the prosecution from introducing evidence at trial if the evidence was seized illegally. However, one significant limit on the Fourth Amendment is that it does not apply to searches and seizures conducted by other private citizens. It only protects citizens from the government; it does not protect them from private actors. Thus, the Fourth Amendment may be invoked as part of a motion to suppress evidence when the when a government actor like a police officer enters an individual’s home without a search warrant or stops someone without probable cause or reasonable suspicion. In this case, however, the officers who seized the contraband from the dorm room did not work for the government. They were not police officers performing a government function and Villanova is a private school.

Can the Fourth Amendment Apply to Non-State Actors?

In some circumstances, the Fourth Amendment can apply even to non-government employees. For example, the Fourth Amendment’s protections against unreasonable searches and seizures do apply to non-state actors when private individuals act as an instrument or agent of a state. Here, the defendant argued at the motion to suppress that Villanova’s public safety department had assumed a governmental function and essentially acted as the police. Accordingly, the defense argued that the public safety officers should be treated as state actors. Unfortunately, cooperation with the authorities alone does not constitute state action. The mere fact that the police and prosecutors use the results of a private actor’s search does not transform the private action into a state action. Instead, it must be shown that the relationship between the person committing the wrongful acts and the state is such that those acts can be viewed as emanating from the authority of the state. This means that if a college or university forms an actual police department with certified officers who have arrest powers, then the Fourth Amendment should apply to those officers. Likewise, the Fourth Amendment may apply to the public safety department of a public university because the officers would be government employees. Here, however, the officers were not actual police officers or government employees.

Can Campus Safety Officers Search a Dorm Room Without a Warrant?

Ultimately, the Pennsylvania Superior Court affirmed the suppression court’s denial of the defendant’s motion to suppress. The Superior Court found that the University conducted the search on its own terms and in accordance with its own policies aimed at preserving student safety. The public safety department did not act jointly with the police or at the behest of the police in carrying out the search. Additionally, the public safety department had not assumed a governmental function such that it should be subject to the Fourth Amendment because the Radnor Township Police Department still served as the actual police force on university property. The court denied the appeal, and the defendant will not receive a new trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Possession with the Intent to Deliver, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 7/11/18 Zak Goldstein 7/11/18

PA Superior Court: Violation of Philadelphia Police Directives Does Not Require Suppression of Drugs

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McCleary, holding that suppression of the evidence is not required when Philadelphia Police Officers violate their own police department’s directives. In McCleary, the Court reversed the decision of the trial court and ruled that drugs recovered by the police officers may be admissible at trial even though police did not follow department protocol related to obtaining consent to a search of a private home.

The Facts of Commonwealth v. McCleary

In McCleary, Philadelphia police officers responded to a radio call for a burglary in progress at a certain address. When they arrived at that address, they walked into the eventual-defendant’s house through an open door. In the living room, they found the defendant speaking with two other police officers. The arriving officers relieved the two who had already arrived and tried to figure out what was going on.

The defendant told the police officers that a woman who was present on the scene had tried to break into his home and that he had a valid Protection from Abuse (“PFA”) order against her. The woman responded that she lived there, had the right to be present in the home, and that she had belongings in the second-floor bedroom which would prove that she lived there. The officers did not take any steps to verify if the defendant in fact had a valid PFA.

Instead, the officers asked the defendant if they could see if the woman had belongings in the second-floor bedroom. The defendant twice told them that they could. The officers then walked upstairs to the bedroom. In the bedroom, they found in plain view a scale, a sandwich bag with marijuana, a box of unused drug packaging, eleven bags of crack cocaine, and clear plastic Ziploc bags. The defendant told the officers that the drugs belonged to him. The officers arrested him and charged him with Possession with the Intent to Deliver.

Motion to Suppress the Drugs

The defendant filed an omnibus pre-trial motion to suppress his statements and the drugs. The trial court held a hearing on the motion to suppress and ultimately granted the motion to suppress. The trial judge found that police violated with Philadelphia Police Department Directive 5.7, Sections 12 through 16, which address the procedure by which Philadelphia Police Officers are expected to obtain valid consent to search a home. The court found that the officers violated their own police directives by failing to obtain signed consent, failing to inform the defendant of his right to refuse consent, failing to consult with a supervisor, and failing to verify the defendant’s valid PFA and arrest the woman who was alleged violating it. The trial court granted the motion to suppress and ruled that the evidence would be inadmissible at trial, thereby essentially excluding the Commonwealth’s entire case.

The Commonwealth’s Appeal

The Commonwealth appealed to the Superior Court. In the appeal, the Commonwealth argued that Philadelphia Police Directives do not have the force of law. The Commonwealth argued that because police are not required by law or the constitution to follow them, the remedy for a violation of the directives should not be suppression of the evidence.

The Superior Court agreed with the Commonwealth’s arguments. It found that exclusion of the evidence via a successful Motion to Suppress is only required where the Government has violated a person’s right to be free from an unreasonable search and seizure as provided by the Fourth Amendment to the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Exclusion is not automatically warranted simply because the police failed to comply with a Rule of Criminal Procedure or the police department’s directives or regulations. Instead, suppression is only required when the police violate the constitution or certain statutes.

When can police search a home without a warrant?

The Superior Court held that the question was not whether police violated their directives; instead, the question which the trial court should have addressed was whether the police obtained constitutionally valid consent to search the property. Although law enforcement officers must ordinary obtain a search warrant prior to searching a home, there are some exceptions to this rule. One of the main exceptions to the warrant requirement is consent. If you tell the police that they can search your house, then they do not have to get a warrant prior to doing so.

How will a court decide if police voluntarily obtained consent to search a home?

In evaluating consent, previous appellate decisions have suggested that courts consider the following factors:

the presence or absence of police excesses;
whether there was physical contact;
whether police directed the citizen’s movements;
police demeanor and manner of expression;
the location and time of the interdiction;
the content of the questions and statements
the existence and character of the initial investigative detention, including its degree of coerciveness;
the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, thus suggesting to a citizen that his movements may remain subject to police restraint; and
whether there was an express admonition to the effect that the citizen-subject is free to depart, which is a potent, objective factor.

Here, the Court evaluated the factors and found that there was nothing coercive about the police request to see the rest of the home. Certainly, they should have followed their directives, but their failure to do so did not rise to the level of a constitutional violation. Accordingly, the Superior Court reversed the decision of the trial court and ruled that the drugs may be admissible in the prosecution for Possession with the Intent to Deliver.

Notably, one of the three judges on this panel dissented, arguing that the trial court had in fact found that the police officers simply were not credible on the issue of whether they truly obtained consent. The trial court simply considered the violation of the directives as part of analyzing whether the police were telling the truth. This is important because once the defense files a motion to suppress in Pennsylvania, the Commonwealth must produce sufficient evidence to show that it is more likely than not that the police complied with the United States and Pennsylvania Constitutions during the search and/or interrogation. If the trial judge finds that the police are not credible, then the judge may grant the motion to suppress for that reason even if what the police claim they did was legal. Thus, on remand, the defense may still argue that the judge found that the police were not credible and that the judge should clarify his or her opinion. However, it is clear that as a matter of law, a violation of the Philadelphia Police Department’s Directives does not automatically result in suppression of the evidence.

Facing criminal charges? We can help.

If you are facing criminal charges, we can help. We have successfully defended thousands of clients at the trial and appellate level in courts throughout Pennsylvania and New Jersey. We know the law and the defenses that will work in your case, and we recognize the types of defenses and arguments that are going to withstand appellate scrutiny. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Demetra Mehta 6/28/18 Demetra Mehta 6/28/18

PA Superior Court Finds Police Command to Remove Hands from Pockets Requires Reasonable Suspicion

Criminal Defense Attorney Demetra Mehta, Esq.

The Pennsylvania Superior Court recently decided the case of Commonwealth v. Hemingway, and it has significant repercussions for criminal defendants who want to litigate a motion to suppress.

The Facts of Commonwealth v. Hemingway

The facts of this case were as follows: Altoona Police Department patrolmen Joseph Detwiler and Derek Tardive responded to a noise complaint “in a high crime area.” No information or description was given regarding any person involved in the noise complaint. Once at the location, officers observed Mr. Hemmingway and another man speaking with two women in a car. Mr. Hemmingway had his hand in his pocket, and neither he nor the man he was with were inside the building where the noise complaint originated. Despite the fact that the noise complaint came from inside the building and the men were distinctly outside of the building, the officers decided to investigate the men because they were concerned that “if they responded to the noise complaint first, the men would not be there when they got outside."

Officer Detwiler ordered Mr. Hemingway to remove his hand from his pocket. Officer Tardive ordered Mr. Hemingway to put his hands on his head and stated that he would be conducting a pat-down search. Rather than comply, Mr. Hemingway immediately fled on foot. After the foot chase, the officers recovered Mr. Hemingway’s shoe. Near the shoe, they found four bags of a white powdery substance, later identified as cocaine. Mr. Hemingway was arrested and charged with possession with intent to deliver a controlled substance (“PWID”), resisting arrest, escape, and disorderly conduct.

The Motion to Suppress

In November 2016, Mr. Hemingway’s defense attorney filed a suppression motion, arguing police officers did not have reasonable suspicion to justify their initial attempt to stop and frisk. This motion argued Mr. Hemingway’s mere presence in a high crime area and the fact that he had his hand in his pocket did not reasonable suspicion make. In February 2017, the suppression court convened a hearing at which Officer Detwiler testified, and at which Officer Tardive’s preliminary hearing testimony was read into the record.

On March 17, 2017, the suppression court granted the motion to suppress, finding that Mr. Hemmingway was subjected to an unlawful investigative detention as the officers lacked reasonable suspicion that criminal activity was afoot.

The Criminal Appeal

Not liking this opinion, the Commonwealth appealed, seeking relief by arguing the following points: 1) the suppression court erred in concluding that Officers Detwiler and Tardive did not possess reasonable suspicion that criminal activity may be afoot and that the defendant was armed and dangerous, and 2) the suppression court erred in suppressing controlled substances that were not found pursuant to a search of defendant, but were discarded by him before or during his struggle with police.

In support of its arguments, the Commonwealth cited the following facts: 1) that the time of the encounter was 2:00 a.m.; 2) the area was a high crime area; 3) Appellee’s interactions with the vehicle were consistent with drug transactions; 4) Appellee “shoved his hand into his pocket when he made eye contact with the officers.

Before delving into its analysis of the sort of encounter Mr. Hemingway had with these officers the court noted: “ [t]here are three types of encounters between law enforcement officials and private citizens.” 1) A “mere encounter” which need not be supported by any level of suspicion but carries no official compulsion to stop or respond. 2) An “investigative detention” which must be supported by reasonable suspicion and subjects the suspect to a stop and a period of detention, but it does not have the coercive conditions that would constitute an arrest. (The courts determine whether reasonable suspicion exists by examining the totality of the circumstances.) 3) An arrest, or “custodial detention,” which must be supported by probable cause.

In Mr. Hemingway’s case, the court had to determine 1) the type of encounter and corresponding level of suspicion required to support that encounter; and 2) whether the facts supported said level of suspicion.

Previously the Superior Court has found that “to determine whether a mere encounter rises to the level of an investigatory detention, [it] must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer’s request or otherwise terminate the encounter.” Commonwealth v. Reppert, 814 A.2d 1196, 1201–1202 (Pa. Super. 2002). Therefore, the focal point of its inquiry in this case would be if, considering the circumstances surrounding the incident, a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant’s shoes.

Now, a mere encounter is a “request for information.” It does not need supported by any level of suspicion and, carries no official compulsion to stop or respond. However, in order to conduct a pat-down of a person, police must have reasonable suspicion: A police officer is entitled to conduct a limited search of an individual to detect weapons if the officer observes unusual and suspicious conduct on the part of the individual which leads the officer to reasonably believe that criminal activity is afoot and that the person may be armed and dangerous.

In Pennsylvania, there is some precedent regarding police requests that defendants remove their hands from their pockets, and the level of encounter resulting from such orders. However, in this case, the Court concluded that although it could draw from such precedent, every incident is a fact-specific inquiry and partially dependent on the timing of the request. In Martinez, two police officers in an unmarked vehicle pulled up alongside the defendant, requested that she come over to them, turn around, take her hands from her jacket, and put them on the car. See Martinez, 588 A.2d at 515. The officers exited the vehicle and approached Martinez from either side, preventing her from leaving. Id. The Martinez Court thus concluded that she had been seized for Fourth Amendment purposes and that reasonable suspicion was necessary to justify the stop. Id. at 515-16.

The Pennsylvania Superior Court has previously stated in the case of Commonwealth v. Carter that if, during a mere encounter, an individual on his own accord, puts his hands in his pocket, he or she has created a potential danger to the safety of a police officer, the officer may justifiably reach for his side arm and order the individual to stop and take his hand out of his or her pocket. Such reaction by a police officer does not elevate the mere encounter into an investigative detention because the officer’s reaction was necessitated by the individual’s conduct.

The Pennsylvania Supreme Court, in Commonwealth v. Zhahir, has also recognized that when police officers are investigating an allegation of narcotics trafficking in a high crime area, they are justified in asking a defendant, who matches a police description, to remove his hands from his pockets. Similarly, in Commonwealth v. Coleman, police officers were dispatched to a robbery in progress involving two black males wearing green hooded jackets covered by black coats. Police saw a man who they believed matched the flash description, and the officer inquired if he had a gun. In response, Coleman fumbled with his hands in his pockets. The officer then ordered Coleman to take his hands out of his pockets. Coleman refused, so the police took him to a police van, and two knives were recovered from his pockets. In this case, the court concluded that the officer’s request did not constitute a seizure and that the combination of 1) the description of the robber and 2) Coleman’s refusal to remove his hands from his pockets was sufficient to justify an investigative detention and protective frisk.

This is different when a police officer creates his own dangerous situation and then uses that self-created danger as a basis for escalating the encounter into a seizure. See Carter, 779 A.2d at 594 (noting that telling suspect to put his hands in his pockets, then ordering him to take them out, police officer manufactured danger himself.)

In Mr. Hemingway’s case, the Superior Court decided that the initial interaction between officers and the defendant was not a mere encounter. Because, as noted above, a mere encounter constitutes a request for information and carries no official compulsion to stop and respond. As noted above the police may not manufacture their own dangerous situation to escalate a mere encounter into a seizure. Here, the defendant already had his hands in his pockets when the officers initiated the encounter. The Superior Court ruled that the interaction commenced with Officer Detwiler’s command that the defendant remove his hands from his pocket. Thus, the initial interaction was not a “mere encounter,” but was, instead, an investigative detention that must be supported by reasonable suspicion.

In this case the officers had no description of any suspects; they only had a complaint about noise. There was no report that anyone was armed with a weapon, nor was Mr. Hemingway’s behavior particularly suspicious. When the police arrived, Mr. Hemingway was speaking to two women, and his hands happened to be in his pockets. For these reasons the Superior Court declined to overturn the findings and rulings of the trial court.

As I wrote above this case does have some repercussions for defendant’s hoping to successfully litigate a motion to suppress. First, it re-establishes that the police may not manufacture a crisis and then use that to escalate their interaction with a suspect. Second, absent other indicators of danger, a suspect having his or her hands in his or her pockets when the police first encounter them is not, by itself an indication of danger. That written, the court was clear that these interactions are to be treated on a case-by-case basis.

What that means for anyone facing a possessory crime is that they should immediately contact an attorney in order to prepare a defense. Once an issue like this is missed, it is very difficult to revive on appeal or even though a PCRA. If you are facing criminal charges, we can help. We offer a free criminal defense strategy session to every potential client. Call 267-225-2545 to speak with an award-winning defense attorney today.