PA Supreme Court: Concerns About Officer Safety Do Not Justify Suspicionless Seizure of Motorist

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

It should go without saying that the police cannot stop, search, and interrogate people without a warrant or some prior observation of potential ongoing criminal activity. Nonetheless, trial and appellate courts throughout the state  state of Pennsylvania often attempt to justify coercive police detentions which occurred without reasonable suspicion or probable cause by finding that the police did not actually “stop” the defendant for Fourth Amendment purposes.

If the court can find that the police conducted a mere encounter and had to take some common sense steps to ensure officer safety, the court may try to justify a decision denying a motion to suppress. Unfortunately, many of these opinions ignore the fact that when a police officer approaches a person and begins asking questions or issuing commands, that person would never reasonably feel free to terminate the encounter and leave without following the orders of the officer.

In the recent case of Commonwealth v. Adams, the Pennsylvania Supreme Court reiterated once again that police cannot conduct a stop without reasonable suspicion, and a stop occurs when a reasonable person would not feel free to leave due to some action taken by the officer. Further, there is no reasonable suspicion for a Terry stop when the suspect has done nothing more than park his or her car in a commercial parking lot late at night despite the fact that it may be a little bit unusual to park there. Instead, police must have specific, articulable facts from which they can conclude that criminal activity may be afoot, and those facts must be based on more than mere speculation. Only then may police conduct a stop and potentially take actions related to officer safety such as frisking the defendant or limiting the defendant’s freedom of movement in some way.

Commonwealth v. Adams

In the case of Commonwealth v. Adams, a Pleasant Hills, PA police officer was on routine patrol at around 3 am. He observed a white Dodge Dart enter a parking lot that served two closed businesses - a hobby store and a pizza shop. The car drove behind the buildings. The officer waited to see if the car came back and left the lot, but it did not. The officer then drove behind the parking lot to locate the vehicle because he wanted to “simply check why a car drove behind two dark, closed businesses” at 3 am. He testified at a motion to suppress hearing that he recognized the potential for drug activity or an attempted burglary.

After driving behind the buildings, the officer saw the car parked behind the pizza shop. The car was off. There were no “no parking signs” behind the building, but there were also no marked parking spaces. The officer did not believe that this area would generally be used as public parking. Instead, he believed that it could be an area for deliveries and employee parking.

Despite having seen nothing more than a car parking in a parking lot early in the morning, the officer pulled his marked police cruiser behind the car. He did not activate his lights or sirens, but he did call for backup. Prior to backup arriving, he exited his police car and walked up to the parked vehicle. He shined his flashlight into the vehicle as he approached. When he reached the driver’s side door, he knocked on the window. The defendant, who was seated in the driver’s seat, opened the car door. The officer physically closed the car door himself, preventing the defendant from getting out of the car. He instructed the defendant to lower the window, and the defendant explained that he could not do so because he did not have the keys to the car. The officer, however, could see the keys on the floor in the back of the car. The officer then remained outside of the car until backup arrived, which was approximately a minute later.

Once backup arrived, the officer opened the defendant’s door and began to speak with him. The defendant told him that he owned the pizza shop and had just come from inside. Obviously, this was not true. The officer smelled alcohol on the defendant’s breath and asked the defendant to perform field sobriety tests. The defendant complied and “failed.” From there, things deteriorated until the defendant was eventually formally arrested and charged with DUI.

The Motion to Suppress

Following the filing of DUI charges against him, the defendant filed a motion to suppress. He argued that the police officer violated his Fourth Amendment rights by stopping him without reasonable suspicion or probable cause. The trial court heard the motion to suppress and denied it, finding that the interaction between the defendant and the officer was only a mere encounter which did not require any level of suspicion. The court found that the officer was justified in preventing the defendant from opening the door by concerns about officer safety because the officer was alone, it was late at night, and the defendant was physically bigger than the officer. With the motion to suppress denied, the court found the defendant guilty at a bench trial of DUI and sentenced him to six months of probation.

The defendant appealed to the Pennsylvania Superior Court, and the Superior Court affirmed the denial of the motion to suppress. The Court agreed with the trial court, essentially finding that the police officer conducted only a mere encounter with the defendant and that even if it was a Terry stop, the officer had reasonable suspicion based on the defendant’s behavior and statements. The defendant filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Supreme Court agreed to accept the case.

What is a Petition for Allowance of Appeal?

The Pennsylvania Supreme Court does not hear most cases. When a defendant is convicted and wishes to appeal, the defendant’s appeal is generally to the Pennsylvania Superior Court. The Superior Court is required to consider all timely-filed appeals and address issues which were not waived in the trial court. If the Superior Court denies the appeal, then the defendant may then file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. Unlike Superior Court, the Supreme Court does not have to hear every case. Instead, the court chooses a limited number of cases in which it feels that there is an important or novel issue of law in question or where it believes the Superior Court has made a significant error. Thus, when a defendant loses in the Superior Court, the defendant may file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court asking that court to review the ruling of the Superior Court. Most of these Petitions are denied, but in this case, the Pennsylvania Supreme Court agreed to accept the appeal.

The Court’s Ruling

The Pennsylvania Supreme Court found that both the trial court and Superior Court erred in finding that the police officer did not “stop” the defendant for Fourth Amendment purposes and that the officer had reasonable suspicion to conduct a stop. First, the Court explained the standards for the three types of encounters between police officers and members of the public. The lowest level of interaction is a mere encounter. A mere encounter does not require a warrant or any level of suspicion, and police may simply walk up to any person and try to talk to them. The police may not do anything to restrict the person’s freedom of movement or require compliance during a mere encounter, but nothing stops an officer from trying to talk to someone.

The second level of interaction is an investigative detention or Terry stop. This type of encounter is something less than an arrest, but it allows police to investigate potential criminal activity. A Terry stop occurs when the police do something to indicate that the person would not be free to leave. For example, telling someone to stop, frisking them, or restricting their freedom of movement could result in a Terry stop. A Terry stop must be relatively brief or it could turn into a full blown arrest and require probable cause. During a Terry stop, police may sometimes take precautions to ensure their own safety such as frisking a suspect or requiring the suspect to remain in his or her vehicle. However, police may not engage in a Terry stop or take these safety precautions unless they have reasonable suspicion for the stop. The reasonable suspicion standard requires police to show that they have specific, articulable facts which would indicate to a reasonable officer that criminal activity is afoot.

The most restrictive level of interaction is a custodial detention. A custodial detention is the functional equivalent of an arrest and must be supported by probable cause. A custodial detention also constitutes a seizure. A police encounter is more likely to be considered a custodial detention if it is prolonged, takes place at the police station, involves handcuffs, or if the police tell the suspect that he or she is under arrest.

In this case, the Pennsylvania Supreme Court ruled that the lower courts made a mistake in finding that the interaction between the officer and the defendant was only a mere encounter. Instead, the Court concluded that the defendant would not have felt free to leave, and in fact could not leave, when the officer parked behind him, exited his car, shined his flash light into the defendant’s car, and physically closed the defendant’s door when the defendant attempted to get out of the car. Thus, in addition to not feeling free to leave, the defendant physically could not leave because the officer prevented him from doing so.

Because the Court concluded that the officer conducted an investigative detention by seizing the defendant and preventing him from exiting the car, the subsequent observations of the officer would be admissible as evidence at trial only if the officer had reasonable suspicion to conclude that the defendant was engaged in criminal activity prior to the officer’s decision to shut the defendant’s car door. The Court concluded that there was no reasonable suspicion because the officer had seen the defendant do nothing more than park in a public parking lot. While it was slightly unusual that the defendant chose to park in an empty lot behind two buildings at 3 am, it was not necessarily criminal. There was no evidence in the record that the parking lot was closed to members of the public at that time, and so the officer was not justified in believing that the defendant was going to commit a crime such as engage in a drug transaction or commit a burglary. Therefore, the Court ruled that the lower courts should have granted the motion to suppress.

This decision is particularly important because the Court stressed the fact that not every police action can be justified by merely reciting the magic words “officer safety.” If the officer had reasonable suspicion for the stop, then the officer might have been justified in physically closing the door and restricting the defendant to his car. But the officer safety issue only comes into play after it has been determined that police have reasonable suspicion. Concerns about officer safety do not transform an otherwise illegal stop into a legal one. Thus, whether police may frisk a defendant or take other steps out of concerns for officer safety is a two-part test. First, the police must actually have reasonable suspicion. Second, they must reasonably believe that some action like a frisk or closing the car door is necessary for safety reasons. If they cannot satisfy both parts of this test, then the subsequently-obtained evidence should be suppressed as fruit of the poisonous tree. This is a great opinion for privacy rights because it establishes that police cannot just stop and detain people on a whim or a mere hunch. They must be able to point to actual evidence of criminal activity, and simply reciting the phrase officer safety does not transform a constitutional violation into a legitimate stop.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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. In just the past few months, we have won motions to suppress in cases involving drug possession, gun possession, and Driving Under the Influence (“DUI”). We have also successfully obtained full acquittals, dismissals, and other successful results in cases involving charges such as Conspiracy, Possession with the Intent to Deliver, Aggravated Assault, Rape, and Homicide. 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. 

PA Superior Court Approves Current Philadelphia Police DUI Checkpoint Procedures

Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Mercado, holding that Philadelphia Police conducted a constitutional DUI checkpoint despite the fact that the officer who planned the checkpoint selected the location of the checkpoint without any data indicating how many DUIs have occurred at the location of the checkpoint. This is an extremely bad case for privacy rights which allows police to basically establish motor vehicle checkpoints at will without any prior research. The decision also conflicts with the court’s longstanding precedent in cases like Commonwealth v. Blee and Commonwealth v. Garibay.

The Facts of Mercado  

In Mercado, the Philadelphia police stopped the defendant at a DUI checkpoint on the 300 block of East Allegheny Ave in Philadelphia, PA. The officers noticed that the defendant had bloodshot, glassy eyes, and they smelled the odor of burnt marijuana coming from his vehicle and breath. The defendant subsequently admitted to smoking marijuana. He submitted to a “field sobriety test” and presumably failed, and the police then took him into custody on suspicion of DUI. They then transported him to the Police Detention Unit for a blood test.

Prosecutors later charged the defendant with DUI in the Philadelphia Municipal Court. The defendant filed a pre-trial motion to suppress the results of the stop, including the blood test results, arguing that the police did not have sufficient data regarding prior incidences of DUI at 300 East Kensington Ave. to establish a constitutional checkpoint at that location.

At the motions hearing, the Commonwealth called the Philadelphia Police Lieutenant who ran the checkpoint to testify. The lieutenant testified that to determine the location of the checkpoint in question, he tabulated all DUI-related incidents in Philadelphia over the previous two years and broke those figures down by DUI-related incidents per police district. He found that the 25th police district, which is 2.3 square miles, had the most DUIs in the city during that period.

He did not have any data specific to the location of the checkpoint. However, he testified that he selected that location because it is one of the only locations in the district which would be large enough and safe enough to conduct a checkpoint involving eighteen police officers, two police cruisers, and one large processing center the size of a fire truck. He also testified that the 300 block of East Allegheny Ave is a main vein of travel within the 25th district.

The Motion to Suppress and Appeal

The Philadelphia Municipal Court granted the motion to suppress, finding that existing case law required the officer to have data specific to the location of the checkpoint in order to avoid a constitutional violation. The Commonwealth appealed to the Court of Common Pleas, and the motions court judge in the Court of Common Pleas affirmed the order granting the motion to suppress. The Commonwealth then appealed to the Pennsylvania Superior Court.

 The Pennsylvania Superior Court reversed the decision of the Municipal Court and ruled that the motion to suppress should not have been granted. The Court noted that DUI checkpoints are governed by the “Tarbert/Blouse” guidelines. Pursuant to those guidelines, the Commonwealth must be able to show that the checkpoint satisfied five requirements in order to be constitutional.

Those requirements are:

1. vehicle stops must be brief and must not entail a physical search;

2. there must be sufficient warning of the existence of the checkpoint;

3. the decision to conduct a checkpoint, as well as the decisions as to time and place for the checkpoint, must be subject to prior administrative approval;

4. the choice of time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and

5. the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.

Further, substantial compliance with the guidelines is all that is require in order to minimize the intrusiveness of a roadblock seizure to a constitutionally acceptable level.

The Court’s Opinion

The Court found that Philadelphia Police substantially complied with these rules. The officer testified that he selected the route based on statistical data demonstrating that the district in question accounted for the highest rate of DUI arrests in the city, and that Allegheny Avenue was the main avenue of East-West travel in the district. He also considered traffic volume and safety factors when selecting the location of the checkpoint. The Court rejected the defendant’s argument that the police should have had some kind of data relating specifically to Allegheny Avenue. Instead, the Court reasoned that the relatively high rate of DUIs in that district coupled with the safety considerations considered by the lieutenant made the selection of that location constitutional.

Unfortunately, this decision amounts to carte blanche for the police to establish a checkpoint anytime and anywhere. Previous decisions such as Commonwealth v. Blee and Commonwealth v. Garibay required actual numbers as to how many DUIs occurred on the street selected for the checkpoint. This opinion lets the police simply establish a checkpoint in any district where they can testify that the district has a large number of DUIs and on any road that could be characterized as a busy road. The opinion simply ignores the prior case law, and hopefully it will be appealed to the Pennsylvania Supreme Court. Hopefully, this opinion may be limited to the 25th District as that is the only district where police would be able to claim that the district has the highest number of DUIs. In other districts, police may still be required to have more information before establishing a checkpoint. Each DUI case involving a checkpoint should still be carefully evaluated for a potential “checkpoint motion” as well as a motion to suppress based on other grounds such as an illegal arrest or the failure to provide Miranda warnings.

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 obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Forgery, Access Device Fraud, Rape, 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.

PA Superior Court: Pulling Over to the Side of Road Is Not Suspicious

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hampton, holding that police illegally stopped the defendant by physically blocking in his car after the officer saw the defendant do nothing more than pull over to the side of the road. In Hampton, the Court rejected the idea that an officer can stop someone under the community caretaking exception to the warrant requirement just because they pulled over to the side of the road.

The Facts of Commonwealth v. Hampton

In Hampton, a Montgomery County, PA  police officer was on patrol in a marked vehicle at approximately 3:22 am. The officer saw a vehicle drive by her, turn, and then pull over into a field on a property belonging to a church. The driver, who was later identified as the defendant, stopped his car in the grass in front of the church’s office building. The officer pulled behind the car, but she did not activate her lights or sirens. She did, however, park her car in such a way that the car blocked the defendant’s ability to drive back onto the road. The defendant and his passenger eventually got out of their vehicle, and after an interaction with the officer, the officer ended up arresting the defendant for Driving Under the Influence.

The Motion to Suppress

After prosecutors charged the defendant with DUI, the defense lawyer filed a motion to suppress all of the evidence. The defendant argued that the officer stopped the defendant by physically blocking his car with her car without reasonable suspicion or probable cause. At the hearing on the motion to suppress, the officer admitted that she had “stopped” the defendant and that her car physically blocked his. She also admitted that she had not seen any evidence of ongoing criminal activity or motor vehicle code violations. However, she testified that she pulled in behind the defendant because she was concerned that he could be having some kind of medical emergency or car trouble. She also had not activated her lights or sirens. The trial court denied the motion to suppress. Because this was the defendant’s third DUI offense, the court sentenced the defendant to 1 – 5 years’ state incarceration.

The Superior Court Appeal

The defendant appealed the denial of the motion to suppress to the Pennsylvania Superior Court. The Superior Court ultimately overturned the conviction and found that the trial court should have granted the motion.

First, the Superior Court concluded that although the officer did not activate her lights or sirens or specifically tell the defendant to stop, the officer had stopped the defendant by physically blocking the movement of his car. Because the officer had conducted a stop for Fourth Amendment purposes, the officer was required to have reasonable suspicion, probable cause, or some other exception to the warrant requirement.

Second, the Superior Court concluded that the officer did not have reasonable suspicion or probable cause to stop the defendant because the officer candidly testified at the motion to suppress hearing that she did not see any criminal activity of any kind.

Third, the Superior Court rejected the trial court’s conclusion that the stop was justified by the community caretaking exception. Under the community caretaking exception, police may conduct a warrantless search or seizure under limited circumstances such as to render emergency aid when such aid is reasonably necessary. In order for the exception to apply, the officer’s actions must be motivated by a desire to render aid or assistance rather than the investigation of criminal activity. Additionally, the officer must be able to point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance. Thus, the officer must have reasonably believed that an actual emergency was ongoing.

Here, the Superior Court rejected the application of the community caretaking exception because the defendant did nothing more than pull over to the side of the road. Such behavior is encouraged and perfectly consistent with innocent activity. A motorist may pull over the road to answer the phone, rest for a moment, check a map, or for any number of other legitimate reasons. Therefore, the community caretaking exception did not apply. Accordingly, the Court reversed the defendant’s conviction and remanded the case to the trial court with instructions to grant the motion to suppress.

This is a good case for Fourth Amendment rights because the Superior Court recognized the obvious fact that when a police officer in a marked car blocks someone’s ability to drive away, the officer has stopped that person for Fourth Amendment purposes. In many cases, courts attempt to characterize contact between police and defendants as a “mere encounter” which does not require any level of suspicion. Here, the Court recognized that any reasonable person in the defendant’s position would not have felt free to leave and therefore a stop had occurred. 

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

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 state and federal courts throughout Pennsylvania and New Jersey. We have obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, DUI, Rape, 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.

PA Superior Court Continues to Undermine US Supreme Court's Birchfield Ruling

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Moser. In Moser, the Superior Court concluded that police lawfully obtained the defendant’s blood sample without a search warrant because the defendant consented to the blood draw before police read him defective and coercive O’Connell warnings. Accordingly, the court reversed the trial court’s order suppressing the results of the blood test. 

The Facts of Commonwealth v. Moser

Moser was charged with Homicide by vehicle while under the influence of alcohol or controlled substance (Homicide by DUI), three counts of DUI, homicide by vehicle, and related traffic offenses. Moser filed a motion to suppress, arguing that police coerced him into submitting to warrantless blood testing by reading him defective O’Connell warnings which informed him that if he refused the blood testing, he would be subjected to stricter criminal penalties. The United States Supreme Court has previously held in Birchfield v. North Dakota that a state cannot impose criminal penalties on a defendant who refuses to submit to a warrantless blood draw, and Pennsylvania courts have suppressed blood testing in which defendants were told they would face criminal penalties if they refused prior to the testing. 

The trial court granted the motion to suppress. It found that the behavior of the police was unlawfully coercive and violated Moser’s rights because the police told him that he would face criminal penalties if he refused the testing. By granting the motion to suppress, the court ordered that the prosecution could not use the results of the blood testing at the homicide trial. 

The Commonwealth appealed to the Superior Court. On appeal, the Commonwealth argued that Moser had actually agreed to the blood testing while in the back of the police car on the way to the hospital. The police who were investigating the case did not read him the defective warnings until he arrived at the hospital. Therefore, the prosecution argued that he had already agreed to the blood draw prior to hearing anything coercive. Because the warnings were not provided until later, they could not have coerced him into giving up his right to insist on a search warrant prior to a blood test. 

The Superior Court agreed. It found that although the warnings were improper and could have been coercive, the warnings did not coerce the defendant in this case because they were not given until after he had already consented to the blood draw in the back of the police car. Therefore, the court reversed the decision of the trial court and ordered that the blood test results may be introduced at trial going forward.

This case continues a recent trend in the Sueprior Court of rejecting these Birchfield challenges and allowing the Commonwealth to use evidence even where the police gave improper warnings. A number of Birchfield cases are still on appeal, and the Pennsylvania Supreme Court has granted review in at least one of them. Therefore, although this is a significant set back for the defendant in this case, it is possible that the rules surrounding blood testing in DUI cases will continue to change and that the Superior Court could be overturned. For the time being, the Superior Court continues to regularly undermine the basic holding of Birchfield that states may not impose criminal penalties on a defendant for refusing blood testing when police have not obtained a search warrant. Obviously, the constitution requires search warrants, but the appellate courts continue to allow police to ignore this requirement and forgives their basic refusal to set up electronic or telephonic warrant application systems for DUI cases. 

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers

If you are facing criminal charges or may be under investigation, we can help. We are experienced and understanding Philadelphia criminal defense lawyers who will fight for you. We have successfully defended thousands of clients in trial courts throughout Pennsylvania and New Jersey as well as on appeal and in Post-Conviction Relief Act Petitions. We offer a complimentary 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an award-winning defense attorney today.