Philadelphia Criminal Defense Blog

Zak Goldstein 2/15/22 Zak Goldstein 2/15/22

PA Superior Court: Police Generally May Not Search Car Incident to Arrest Without Search Warrant

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lutz, holding that the police generally may not search a car incident to the driver’s arrest without first obtaining a search warrant. This is an important holding because it provides substantial protections for Pennsylvania citizens that are not provided by federal law. Further, the court also suggested that police may not be able to go into a car to retrieve contraband under the plain view doctrine without first obtaining a warrant, as well.

The Facts of Lutz

In Lutz, the defendant was arrested for DUI as well as possession of marijuana and possession of drug paraphernalia. The defendant moved to suppress the evidence which the police had recovered from her vehicle, namely the marijuana as well as a marijuana pipe.

The trial court held a hearing on the motion to suppress. At the hearing, Sergeant Nunemacher of the Lansford Police Department testified that he responded to a report of a suspicious vehicle parked at the foot of a private community on a water authority road. Police regularly patrolled this area because it was known for drug activity and as an area where people dump garbage. When he arrived, he found the defendant’s vehicle parked in a rocky area. He heard loud music coming from the car.

The defendant exited the vehicle and approached the officer. The officer quickly concluded that the defendant was under the influence of alcohol and called for backup. He asked the defendant to participate in field sobriety tests as well as to take a breathalyzer, but she did not really comply. He ultimately arrested her for DUI.

The officer then checked on the defendant’s vehicle. The defendant had left her keys in the ignition, and the car was still running. When the officer looked into the car, he saw a marijuana pipe sitting on the driver’s seat. He went into the car to turn off the car and retrieve the pipe. The defendant told the officers that they might find some marijuana in the car, so the officers then searched the rest of the car and unsurprisingly found marijuana.

The trial court denied the motion to suppress. The court found that police were not required to obtain a search warrant because the pipe was contraband which was in plain view and because they were allowed to search the car incident to the defendant’s arrest. The defendant appealed.

The Pennsylvania Superior Court Appeal

The Superior Court reversed the trial court’s ruling on appeal. The Superior Court found that with respect to the pipe, the officers had not violated the requirement that they obtain a search warrant prior to searching a vehicle because the officers found the pipe pursuant to the plain view exception to the warrant requirement.

Under Commonwealth v. Alexander, police generally must obtain a search warrant prior to searching a vehicle. There are exceptions, however, for exigent circumstances. In this case, there were no exigent circumstances that would allow a frisk of the vehicle, but the plain view exception applied.

The plain view exception allows police to conduct a warrantless search and seizure if four elements are met. First, the police must not have violated the Fourth Amendment in arriving at the location from which the item could be viewed. Second, the item must be in plain view. Third, the incriminating character of the item must be immediately apparently. Fourth, the police must have a lawful right of access to the item itself.

Here, the Court found that all four requirements were met with respect to the pipe. The police were on public property and able to see the pipe without going into the car. The pipe was plainly visible without opening the door or moving anything, and based on the officers’ experience, the pipe was clearly for use with marijuana instead of tobacco.

The fourth requirement, however, was a little bit more complicated. Police did not have a search warrant, so they could not really enter the defendant’s car. The Superior Court, however, found exigent circumstances from the fact that the defendant had been arrested and police needed to go into the car to turn the car off and retrieve the keys because the defendant had left the car running. Once they were in the car for the purpose of turning it off and getting the keys, the police were then allowed to retrieve the pipe without getting a warrant. They had a lawful right of access to the item from the exigent circumstances of needing to turn off the car.

This would have been a more difficult question had the car not been running. The Court’s opinion implies that in that case, the police would likely need to get a warrant prior to retrieving the pipe even if they could tell that it was contraband before they entered the car. This is an important issue which has not totally been resolved by the Pennsylvania courts as officers often claim to have seen contraband in plain view during traffic stops. Here, the Court relied on the exigency of needing to turn the car off to support the warrantless entry into the car, suggesting that if the car had been off, police would have needed to get a warrant prior to retrieving the pipe.

With respect to the rest of the search of the car for the items that were not in plain view, the police action was very clearly unconstitutional. As previously mentioned, in Commonwealth v. Alexander, the Pennsylvania Supreme Court found that police generally need to get a search warrant prior to searching a vehicle. As a general rule, there is a search incident to arrest exception which allows police to search a person who has been arrested for drugs or contraband as well as to inventory their belongings. The Court here held that that exception does not extend to a person’s vehicle once the person has been arrested, removed from the vehicle, and placed in handcuffs. At that point, there is no basis for believing that the person could retrieve a weapon and destroy evidence, so the exception does not apply. Therefore, the trial court should have granted the motion to suppress with respect to the marijuana in the car. The Court reversed the conviction and remanded the matter for a new trial without the illegally seized drugs.

Read the Superior Court’s Opinion

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Zak Goldstein 7/2/21 Zak Goldstein 7/2/21

SCOTUS: Warrantless Entry Into Home Not Automatically Justified by Flight of Misdemeanor Suspect

The United States Supreme Court has decided the case of Lange v. California, holding that the police may not automatically enter a fleeing misdemeanor suspect’s home. This decision is significant because police have frequently justified the entry into a defendant’s home on the basis that the suspect ran away from the police and they needed to enter the home in “hot pursuit.” This decision now restricts law enforcement and potentially only allows an officer to pursue a fleeing misdemeanor suspect into his home when there is a valid law enforcement emergency.

In determining whether a claimed emergency is legitimate, courts must now apply a totality of the circumstances approach to determine whether the officer was justified in entering a misdemeanor suspect’s home without a warrant. Further, it should be emphasized, that this decision only applies to misdemeanor cases. The police still can often enter a fleeing felony suspect’s home without a warrant.

Lange v. California

The defendant drove past a California highway patrol officer while playing his music very loudly and repeatedly honking his horn. The officer began to follow the defendant and then eventually activated his overhead lights to signal to the defendant that he should pull over. When the officer activated his lights, the defendant was about a hundred feet from his home. Rather than stopping, the defendant continued to his driveway where he entered his garage. The officer activated his lights solely due to the disturbance that the defendant was causing while driving.

The officer then parked his vehicle and followed the defendant into his garage and began to question the defendant. While questioning the defendant, he noticed that the defendant was showing signs of intoxication and he subsequently had the defendant perform field sobriety tests. The defendant did not perform these tests to the officer’s satisfaction and was arrested. The defendant later submitted to a blood test that showed his BAC was more than three times the legal limit.

The defendant was charged with DUI and a low-level noise infraction. Prior to trial, the defendant moved to suppress all the evidence that was obtained after the police entered his garage arguing that it had been a warrantless entry that violated his Fourth Amendment rights. Further, the prosecutor argued that because the defendant had fled from the officer, the officer did not have to obtain a search warrant to enter the defendant’s home because it was an exigent circumstance that permitted a warrantless entry into the defendant’s home.

The defendant’s motion to suppress was denied and the defendant was subsequently convicted of the aforementioned charges. The defendant then filed a timely appeal. The California Court of Appeal denied the defendant’s appeal, holding that the police are always allowed to enter a suspect’s home when said suspect is fleeing after the commission of a crime, regardless of whether it is a misdemeanor or not. The California Supreme Court declined to hear the defendant’s case. Undeterred, the defendant then filed a writ of certiorari with the United States Supreme Court to hear his case. The Court agreed to take his case because “[c]ourts are divided over whether the Fourth Amendment always permits an officer to enter a home without a warrant in pursuit of a fleeing misdemeanor suspect.”

The United States Supreme Court’s Decision

The United States Supreme Court vacated the defendant’s conviction and remanded it for additional proceedings. The Court held that there is no blanket fleeing suspect exception to the Fourth Amendment’s warrant requirement. Specifically, the Court held that police cannot automatically enter one’s home to pursue a suspect without considering the type of crime the suspect may have committed.

Courts across the country will now have to apply a totality of the circumstances approach to determine whether a valid law enforcement emergency exists to permit an officer to enter one’s home, without a warrant, to pursue a fleeing misdemeanor suspect. According to the Court, examples of such valid law enforcement emergencies include: imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home. If any of these scenarios are applicable, then the police will not need a warrant to enter a suspect’s home. Therefore, the defendant’s conviction is vacated and his case is remanded back to the trial court. The trial court will have to make a determination, based on the facts of his case, whether the officer was legally justified in entering the defendant’s home without a warrant.

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Zak Goldstein 5/6/21 Zak Goldstein 5/6/21

PA Superior Court: DUI With Child In Car Not Automatically Endangering Welfare of Child

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Vela-Garrett, holding that evidence that a defendant drove a vehicle with a child in the car while under the influence of alcohol or a controlled substance is insufficient to support a conviction for endangering the welfare of a child without some evidence of actual reckless driving. The mere act of driving under the influence will no longer support a conviction for this charge. Instead, the Commonwealth must show that the defendant was unable to safely drive. Typically, the Commonwealth would try to show this by introducing evidence that the defendant actually operated the car in an unsafe manner.

Commonwealth v. Vela-Garrett

A Pennsylvania State Police (“PSP”) Trooper was patrolling in a marked police cruiser when he observed a white BMW that did not have an inspection sticker on its windshield. The Trooper began following the vehicle and activated his lights. The vehicle pulled over and upon approaching the vehicle, the Trooper smelled a strong odor of marijuana. The defendant was driving the vehicle. The defendant’s girlfriend and their three-month-old baby were also in the vehicle. The Trooper proceeded to search the vehicle. He discovered a digital scale and an “empty twisted corner of a baggie” which, according to the Trooper, often contains some sort of controlled substance. A bag of marijuana was found in the girlfriend’s pants, and the defendant admitted it belonged to him.

The Trooper also performed field sobriety tests on the defendant. According to the Trooper, the field sobriety tests that were performed on the defendant could detect whether someone was under the influence of marijuana. The defendant later admitted to smoking marijuana. The defendant was then arrested. He also consented to a blood draw which showed that he had forty nanograms of the inactive metabolite of marijuana in his system. The defendant was subsequently charged with DUI (a)(1), DUI (d)(2), and EWOC.

The defendant elected to proceed by jury trial. He was acquitted of DUI (a)(1), but was convicted on the other two charges and then sentenced to 42 to 96 months’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He filed a timely appeal. On appeal, the defendant raised two issues. Only the issue of whether the evidence was sufficient to sustain a conviction for the crime of EWOC will be addressed in this blog.

What is EWOC?

18 Pa.C.S. § 4304 (a)(1) governs the crime of EWOC as it relates to parents. It states:

“[a] parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” It is a specific intent offense which was enacted in broad terms to safeguard the welfare and security of children. To be convicted for EWOC, the Commonwealth must prove that a defendant’s actions amounted to a “knowing violation of a duty of care.”

The Superior Court has adopted a three-prong standard to determine whether the Commonwealth has met its burden to convict a defendant of EWOC. First, the Commonwealth must prove that the defendant is aware of his/her duty to protect the child. Next, the Commonwealth must show that the child is in circumstances that could threaten the child’s physical or psychological welfare. Finally, the Commonwealth must show that the defendant failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the defendant’s EWOC conviction. The Superior Court held that just because the defendant was impaired, he did not knowingly place his child in danger by driving with the child in the vehicle. The Superior Court highlighted the fact that the record omitted any allegations of unsafe driving by the defendant. Therefore, the evidence was not sufficient to support the EWOC conviction. Consequently, the defendant’s conviction for EWOC will be vacated and he will get a new sentencing hearing.

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Zak Goldstein 1/12/21 Zak Goldstein 1/12/21

PA Superior Court: Police May Destroy Evidence So Long As They Do Not Do It In Bad Faith

The Pennsylvania Superior Court has decided the case of Commonwealth v. Donoughe. This decision reaffirms established law that states a defendant must make a showing that the police acted in bad faith when they destroy “potentially useful” evidence. This decision is obviously frustrating given that we, as a society, should expect that the Commonwealth should keep and maintain all evidence that is gathered during a case. Unfortunately, as Donoughe shows, that is not the case and thus defendants have an additional hurdle to overcome when they allege violations of this kind.

Commonwealth v. Donoughe

Pennsylvania State Troopers were driving on Pennsylvania Route 30 in Westmoreland County when they noticed the defendant’s blue Jeep Cherokee traveling at a high rate of speed. The troopers initiated pursuit of the vehicle and at one point had to travel at 94 miles per hour (“mph”) to maintain contact with the defendant. The speed limit on that part of the road was 55 mph. After an unknown amount of time spent following the defendant, the troopers activated their overhead lights and conducted a traffic stop of the defendant’s jeep in an adjacent store parking lot. At this time, the dashcam located on the troopers’ car initiated a mobile video recording (“MVR”) of the stop.

According to the troopers, upon reaching the driver’s side window, they were able to detect a strong odor of alcohol emanating from both the jeep and the defendant’s breath. While speaking with the defendant and requesting his documents, the troopers also noticed that the defendant’s eyes were bloodshot and glassy and his movements were very slow. Additionally, the troopers saw a case of unopened beer on the backseat. When the defendant was asked how much he had been drinking that evening, the defendant answered that he had two beers prior to driving.

The troopers then ordered the defendant to exit his jeep to undergo a field sobriety test. However, the troopers decided that because the defendant was short and obese it would be unfair to administer the full set of physical performance tests and so they only had the defendant perform the horizontal gaze nystagmus test and a portable breath test. Based on the results of those tests, the defendant was placed under arrested for DUI. He was then taken to the Greensburg Barracks where he performed a “legal breath test” which registered a .107% BAC which is above the legal limit.

The defendant was subsequently charged with DUI, careless driving, and speeding. The defendant then applied for and was accepted into Westmoreland County’s Accelerated Rehabilitative Disposition (“ARD”) program and his charges were held in abeyance upon successful completion of the program. Unfortunately, the defendant was removed from the ARD program after he failed to complete the terms of his ARD sentence. Criminal charges were subsequently refiled against him and he was listed for a non-jury trial.

The defendant filed an omnibus pre-trial motion to dismiss the two DUI counts on grounds that the MVR was not provided to the defense and thus was “potentially exculpatory” and “represented critical evidence necessary to preparing a proper defense.” The trial court denied the defendant’s motion. The court’s reasoning was that the defendant only gets relief when “potentially useful” evidence is destroyed in bad faith. Westmoreland County has a policy to destroy MVR recordings 90 days after a defendant’s acceptance into the ARD program and thus there. In this case, more than a year had passed since the defendant was arrested and when his charges were refiled against him and thus the video was destroyed as a result of county policy and not because of any animus towards the defendant.

The defendant subsequently went to trial and was found guilty of the aforementioned charges with the exception of careless driving. The defendant then filed timely post-sentence motions which were denied. He then filed an appeal. On appeal, he raised two issues. For purposes of this blog, only the issue of whether the trial court’s denial of his omnibus motion violated his due process rights will be addressed because the Superior Court found that the defendant waived his other issue.

When Does a Brady Violation Occur?

Pennsylvania courts created a three-part test to determine whether a Brady violation has occurred. First, there must be evidence that is suppressed by the prosecutor. Second, it must be shown that the evidence is favorable to the defendant. This means that the evidence could be used to impeach a Commonwealth witness or it could be exculpatory for the defendant. Finally, there must be a showing that the defendant was prejudiced by the withholding and/or destruction of this evidence. In other words, there must be a showing that the outcome of his case could be affected if this evidence was presented at trial.

In the instant case, the MVR evidence was not Brady issue because it was unknown whether the MVR would have been helpful to the defendant. The defendant therefore could not meet the third prong of the test. This is why this MVR video was described as “potentially useful.” Therefore, in order to prevail on a claim of “potentially useful” evidence, the Pennsylvania courts have required that a defendant show that the evidence was destroyed in bad faith on the part of the police. This is different from whether a Brady violation has occurred because the law allows for a defendant to get relief for a Brady violation even if the evidence was inadvertently lost or destroyed.

The Superior Court’s Decision

The Superior Court affirmed the defendant’s convictions. The Superior Court followed the established law and found that the defendant must make a showing that there was bad faith involved when the police destroy “potentially useful” evidence. This case was not a good test case to try and create new law. Specifically, in this case, the defendant conceded that the police did not act in bad faith because the MVR was destroyed in accordance with Westmoreland County policy. Further, the defendant did not even submit any reason as to why the MVR footage would have been exculpatory. Therefore, it was unlikely that the Superior Court was going to overturn an established precedent based on this set of facts. Consequently, the defendant will not get a new a trial and he will be forced to serve his sentence.