Goldstein Mehta LLC Defense Attorneys Obtain Successful Outcomes in Robbery, PWID, Gun, and Assault Cases

Criminal defense attorneys Demetra Mehta and Zak Goldstein continue to obtain successful results in and out of the courtroom. In the last few months, our defense attorneys have won cases involving drug charges, gun charges, assault allegations, and juvenile robbery charges. If you are facing criminal charges, call 267-225-2545 for a complimentary criminal defense strategy session with one of our award-winning defense attorneys. Some examples of our recent not guilty verdicts and successful motions to suppress include: 

Commonwealth v. T.C. - Motion to Suppress Granted in Drug Delivery Case

Criminal Lawyer Demetra Mehta

Attorney Mehta focuses on getting the best results for her clients. In the case of Commonwealth v. T.C., she successfully moved for the suppression of 13 grams of crack cocaine. Attorney Mehta also beat the accompanying DUI charge. In this case, the government alleged Attorney Mehta's client was driving while intoxicated. The arresting police officer claimed that he pulled T.C. over because the head lights of T.C.'s vehicle were not on at night. But Attorney Mehta knew better. She recognized that this was a late-model car, and she quickly obtained proof that the car's headlights actually turn on automatically at night. Through skillful cross-examination, she was able to demonstrate this key fact to the trial judge during the motion to suppress. This led to not only the eventual suppression of the large quantity of drugs in the car but also all observations of her client, meaning the government could not proceed on the DUI charges, either. With the motion to suppress granted, prosecutors were forced to withdraw all charges. T.C. now faces no criminal record from this arrest!

Commonwealth v. G.R. – Not Guilty in Self-Defense Assault Case

G.R., the assistant manager of a local market, was charged with Simple Assault in Philadelphia for allegedly getting into a fight with a co-worker at work. Prosecutors alleged that G.R. punched a co-worker in the throat, fracturing his larynx, after the co-worker engaged in a verbal altercation with G.R. relating to work responsibilities. Although a broken bone can often lead to Aggravated Assault charges, prosecutors moved only to prosecute G.R. in the Philadelphia Municipal Court on the Simple Assault charge. Despite the fact that G.R. was charged only with misdemeanors, the stakes were high for G.R. because G.R. stood to lose his job in the event of a conviction relating to an assault of someone at work. 

Attorney Goldstein defended G.R. and obtained a full acquittal in a trial before the Municipal Court Judge. Attorney Goldstein established that G.R. acted in self-defense by cross-examining the complainant on the size difference between the two men, the discrepancies, contradictions, and omissions in the complainant’s statement, and the complainant’s lack of medical records to show that he had actually sustained the injuries that he claimed.

Attorney Goldstein established that the complainant, a much bigger man, got in G.R.’s face, pushed him repeatedly, and made a movement consistent with lining up to throw a punch before G.R. ever responded with force. A background check of the complainant also revealed that he had prior convictions for conspiracy to commit homicide as a juvenile and simple assault as an adult. Mr. Goldstein successfully moved for the admission of those convictions into evidence in order to show that the complainant was actually the initial aggressor. Mr. Goldstein then called G.R. to the stand to testify that he had acted in self-defense and believed that the complainant was about to throw a punch. The judge rejected the complainant’s inconsistent testimony and promptly acquitted G.R. on self-defense grounds. 

Commonwealth v. J.L. – Motion to Suppress Granted in Case Involving Drugs, Guns, and Cash

Our criminal defense lawyers recently won a motion to suppress of physical evidence in a case involving drug charges and gun charges in the Philadelphia Municipal Court. J.L. was pulled over by police one night as the passenger in a vehicle. Police claimed that the vehicle smelled like marijuana and that J.L. made furtive movements as they approached the car. Police also claimed that J.L. seemed very nervous and lacked identification when the police spoke with him.

Police decided to remove him from the car and frisk him based on these observations. The officer claimed to feel a pill bottle. Believing that the pill bottle would likely contain contraband, the officer then went into J.L.’s pockets, removed the pill bottle, and found crack cocaine in the bottle. The officer also claimed that J.L. had a large amount of cash in his pocket. Officers then searched the rest of the car and found more drugs and a gun in the trunk. 

Prosecutors initially charged J.L. and the driver of the car with possession both of the drugs allegedly found in J.L.'s pocket as well as the larger quantity of drugs and guns in the trunk. Prosecutors listed the case for a preliminary hearing on the felony charges, and J.L. retained the criminal defense attorneys of Goldstein Mehta LLC for the preliminary hearing. Our attorneys were able to convince the prosecutor that they could not prove that J.L. constructively possessed the items in the trunk, including the larger quantity of drugs and the gun, because J.L. did not own the car and had never been seen accessing the trunk. Prosecutors agreed, withdrew the felony charges, and remanded the case to the Philadelphia Municipal Court only on the charges of possessing the crack cocaine in the pill bottle. 

When the case was listed for trial, Attorney Goldstein moved to suppress the crack cocaine. In general, when police pull a car over in Pennsylvania, they may remove a passenger from the vehicle without any level of reasonable suspicion. However, in order to conduct a Terry frisk of the occupant of a car, the police must have reasonable suspicion both that the suspect is engaged in criminal activity and that the suspect is likely to be armed and dangerous. This means that police must be able to provide an articulable belief, consisting of real reasons, for why the officer believed that criminal activity was afoot and that the defendant was likely to have a weapon.

Here, the officer testified that he believed the defendant was likely concealing weapons or contraband in the car due to his furtive movements, nervousness, lack of identification, and the odor of marijuana in the car. He therefore decided to conduct a frisk. The officer failed to realize, however, that a Terry frisk is limited only to a cursory pat down for weapons. When an officer feels something that is plainly contraband during a frisk, the officer may then conduct a full search and remove the object for further inspection even when the officer does not believe the object is a weapon. But the officer must be immediately able to tell that the item in question is contraband. The officer cannot conduct a full search of a defendant’s pockets and the containers therein solely because the officer feels some kind of object and doesn’t know what it is or may contain.

After the officer testified that he could immediately tell that the item in question was a pill bottle, Attorney Goldstein provided the Court with Pennsylvania Supreme Court case law in which the Court held that a pill bottle cannot automatically be considered contraband. In most cases, it is perfectly legal to possess a pill bottle, and most pill bottles are not used to transport contraband. Accordingly, it is not immediately apparent that a pill bottle contains contraband. Based on this Supreme Court case, Attorney Goldstein successfully argued that the officer exceeded the scope of a lawful Terry frisk and that the pills should be suppressed. The judge agreed and granted the motion. The Commonwealth elected not to appeal and withdrew the charges. 

Commonwealth v. W.D. – ARD Obtained in Possession with the Intent to Deliver Marijuana Case 

W.D. was charged with selling a significant amount of marijuana from a car. Philadelphia Police conducted a narcotics surveillance targeting a block known for high drug activity. During the course of that surveillance, they were able to successfully have a confidential informant purchase drugs in a house on that block. Based on those controlled buys, police obtained a search warrant for the house and returned to execute the warrant. While they were preparing to execute the warrant, police allegedly observed W.D. selling marijuana to dozens of buyers from a car parked up the block. When police went to execute the search warrant, they also searched W.D. and the car in which he was sitting and found a quantity of marijuana and a large amount of money. Accordingly, police charged W.D. with Possession with the Intent to Deliver. 

Fortunately, W.D. had no prior criminal record and was enrolled in college. Our defense attorneys worked with W.D. to put together a strong application for ARD on his behalf. We obtained proof of employment, college enrollment, and character letters from family members and friends. Using this mitigation packet, we were able to convince prosecutors to offer entry into the ARD program for the felony Possession with the Intent to Deliver charges. Prosecutors almost never offer ARD for PWID, but in this case, W.D. will have to complete a short period of probation, community service, and pay a small fine. Once those requirements have been completed, the charges will be dismissed and W.D. can have the entire case expunged with no admission or finding of guilt. 

In Re: J.G. – Not Guilty Verdict Obtained in Juvenile Robbery Case 

Criminal Defense Attorney Zak Goldstein

Attorney Goldstein successfully obtained a full acquittal in a juvenile delinquency Robbery case. In this case, J.G. was charged with strong-arm robbery and related theft charges for allegedly trying to steal the complainant’s cell phone. Prosecutors claimed that J.G. and a group of other juveniles had surrounded the complainant, held him down, and gone into his pockets, taking cash and trying to take a cell phone.

J.G. insisted on his innocence and our defense lawyers took the case to trial in Philadelphia Family Court. By cross-examining the arresting officer on the inconsistencies between the description of the robbers given by the complainant and the clothing that J.G. was actually wearing when arrested, and pointing out that J.G. had neither the complainant’s cell phone or money when arrested, Attorney Goldstein successfully convinced the Family Court judge that police had arrested the wrong person. Accordingly, the judge found J.G. Not Guilty of Robbery and all other charges. J.G. will continue to have no criminal record and may have all of the charges expunged.  

---

FACING CRIMINAL CHARGES OR CONSIDERING AN APPEAL? WE CAN HELP. 

If you are facing criminal charges or deciding whether to appeal a conviction or sentencing, we can help. We have successfully defended thousands of clients in jurisdictions throughout Pennsylvania and New Jersey. We can also provide advice on the merits of pursuing an appeal or post-conviction relief act petition. 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 criminal defense attorney today. 

Third Circuit Rejects De Facto Life Sentences for Most Juvenile Offenders

The United States Third Circuit Court of Appeals has just announced its decision in United States v. Grant, rejecting effective life imprisonment sentences for most juveniles as unconstitutional. Although other federal circuits had already addressed this issue, this was a case of first impression for the Third Circuit which will have dramatic consequences for juvenile offenders who are tried as adults in Pennsylvania and those who are already serving what would effectively be life sentences without parole. 

United States v. Grant

Goldstein Mehta LLC Criminal Defense Attorneys

In March 1987, local law enforcement in Elizabeth, New Jersey became aware of an organized group of teenagers that referred to themselves as The E-Port Posse (“The Posse”). The Defendant was a member of The Posse. The Posse operated a narcotics network that sold cocaine in Elizabeth and would routinely use threats and physical violence to further its enterprise.  

An example of this is occurred in August 1989. The defendant, who was 16 years old at the time, encountered a group of rival drug dealers while delivering drugs for The Posse. The defendant spoke to one of these dealers and told him not to be in the Posse’s territory. The rival drug dealer refused to leave. In response, The defendant struck him in the head with a gun while another Posse member assaulted him. The rival drug dealer fled and the defendant and his associate shot him in the leg. The rival drug dealer survived the incident.

Later that month, the defendant encountered the rival drug dealer’s brother, who was also a drug dealer. The defendant warned the brother not to sell in Posse territory. The defendant confronted the brother in an apartment courtyard where he tried to get the brother to go into an apartment. The brother escaped, but the defendant ordered his associate to shoot the brother to prevent said escape. The associate killed the brother. 

In 1991, a superseding indictment charged the defendant with RICO offenses; Racketeering; Conspiracy to Possess with the Intent to Distribute cocaine; two counts of Possession with the Intent to Distribute cocaine; and two counts of Possession of a Weapon in Relation to a Crime of Violence or Drug Trafficking. Although the defendant was not specifically charged with murder, the attempted murder of the rival drug dealer and the actual murder of his brother were the predicate offenses for the racketeering charge.   

The defendant was tried as an adult even though he was under the age of 18 when these crimes were committed. A jury came back with a split verdict, but found the defendant guilty of RICO, racketeering, and drug and gun possession counts. The jury found that the defendant attempted to murder the rival drug dealer, and murdered his brother. At sentencing, the defendant was sentenced to the mandatory sentencing guidelines of life without parole (hereinafter “LWOP”) on the RICO counts, as well as a concurrent forty-year term of imprisonment on the drug-trafficking counts, and a five-year consecutive term of imprisonment on the gun possession count. The convictions and sentence were affirmed on direct appeal.

The defendant caught a break with the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory Life Without Parole (LWOP) sentences for juvenile homicide offenders violates the Eighth Amendment of the United States Constitution prohibition on cruel and unusual punishment. Consequently, the defendant received a new sentencing hearing.

At the resentencing hearing, the District Court determined that because of the defendant’s upbringing, debilitating characteristics of youth, and post-conviction record, he was not incorrigible, and thus an LWOP sentence was not appropriate. However, the District Court imposed a term of sixty years imprisonment to run concurrently with the drug charges which resulted in a new effective sentence of sixty-five years without parole. Based on this sentencing, the defendant would have been eligible for release when he reached the age of 72 years old. He appealed again. 

Adolescent Development and the Supreme Court

Over the past two decades, adolescent brain development has been an important issue in United States Supreme Court jurisprudence. This began with its decision in Roper v. Simmons which banned the death penalty for juvenile offenders. In its decision, the Roper Court utilized science and social science to reason that juveniles lack maturity, have an underdeveloped sense of responsibility, and are more vulnerable or susceptible to negative influences and outside pressures. In other words, the United States Supreme Court has found that children’s brains are not as developed as those of an adult and thus they should not be held to the same moral standard when addressing criminal conduct and sentencing. 

The United States Supreme Court further expanded on its jurisprudence in the subsequent years. In Graham v. Florida, the Court held that life without parole is unconstitutional for juvenile offenders who commit crimes other than homicide. In Miller v. Alabama, the Court held that that mandatory LWOP even in homicide cases is unconstitutional. Most recently, in Montgomery v. Louisiana, the Court held that Graham and Miller apply retroactively (in other words, if someone was sentenced to LWOP prior to the Court’s rulings in Graham and Miller, then they would be entitled to a new sentencing hearing).

It is important to note that the United States Supreme Court never held that a juvenile cannot be sentenced to LWOP for a homicide offense. However, the bar was set very high to impose such a sentence. As the Grant court stated in its opinion “[o]nly those who are permanently incorrigible may receive such a sentence.” This logic is part of the reason why the defendant in this case challenged his sentence. The trial court essentially sentenced him to life without the possibility of parole.

Third Circuit Rejects Effective Life Without Parole Sentences for Juvenile Offenders as Unconstitutional  

The defendant appealed, arguing that because he would not be eligible for parole until he was 72 years old and that his life expectancy was also 72 years, he had been sentenced to a de facto life without parole sentence. Remember, the sentencing court previously found that he was not incorrigible, and thus, under the logic of Miller, he should receive a parole hearing before he is expected to die. The Third Circuit agreed with the Defendant.

In its decision, the Third Circuit focused on the Miller ruling which held that juvenile life without parole is only for incorrigible juveniles. Further, the Court extrapolated from the previously mentioned Supreme Court decisions that de-facto life without parole cannot be reconciled with Graham and Miller’s holdings that sentencing judges most provide non-incorrigible juvenile offenders “with a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation” and that LWOP has “diminished penological justification.” The Third Circuit also looked to other circuit court decisions (i.e. the 7th, 9th and 10th) which held that term-of-years sentences, in those respective cases, violated the holdings of Graham and Miller.

Ultimately, the Third Circuit established new requirements for a sentencing court before it imposes a term-of-years sentence on a non-incorrigible juvenile offender. First, the sentencing judge must conduct an individualized evidentiary hearing to determine the non-incorrigible juvenile homicide offender’s life expectancy before sentencing him to a term-of-years sentence. Next, the sentencing court must “shape a sentence that properly accounts for a meaningful opportunity to be released.” The Third Circuit concluded that this is before the age of retirement. The Court chose retirement because “society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life.” The Court said that juvenile offenders should have an opportunity to “reconcile with society and achieve fulfillment outside prison walls.” Nonetheless, the sentencing court must also consider the § 3553(a) factors (i.e. the seriousness of the offense, public safety, deterrence, etc.) too, and though a non-incorrigible juvenile offender should be presumptively sentenced below the age of retirement, there may be legitimate reasons why a juvenile offender should not be released before the age of retirement.

Facing Criminal Charges or Considering an Appeal? We Can Help. 

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges or deciding whether to appeal a conviction or sentencing , we can help. We have successfully defended thousands of clients in jurisdictions throughout Pennsylvania and New Jersey. We can also provide advice on the merits of pursuing an appeal or post-conviction relief act petition. 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 criminal defense attorney today. 

Commonwealth Court Limits Government’s Ability to Seize Property under the Forfeiture Provision of the Controlled Substances Act

The Commonwealth Court of Pennsylvania has announced its decision in Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250. The Court’s decision dramatically restricts the government’s ability to seize, through civil forfeiture, property it claims was used to facilitate violations of the Controlled Substances Act (hereinafter “CSA”).

Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250 

On June 11, 2014, two individuals were driving the Lexus in question on Interstate 80 in Monroe County, Pennsylvania when it was pulled over for tailgating. Interstate 80 is a major highway that runs from California to New Jersey. The Lexus was not owned or registered to either of the two occupants inside the car. Both occupants of the car and its owner were from the state of New York. The car was also registered in New York.  

During the stop, the Pennsylvania State Trooper noticed numerous indicators of what he believed to be criminal activity. Specifically, he said that prayer cards, the driver’s tattoos, a strong smell of air fresheners, the vehicle traveling on a known drug route, the occupants’ criminal histories, and their inconsistent stories to the officer caused him to believe that the two individuals were engaged in narcotics trafficking. Because of these suspicions, the Officer requested permission to search the Lexus. The occupants consented to the search.

During the search of the Lexus, the officer recovered $301,360 in vacuum-sealed bags in a hidden compartment. No drugs or paraphernalia were recovered during the search. The police then seized the cash and the Lexus and the driver received a warning for tailgating. A week after the stop, the police performed an ion scan on the cash and the compartment where the money was found. This scan showed trace amounts of cocaine, heroin, THC, and procaine on the cash and trace amounts of heroin and THC in the compartment. However, there was no evidence that this money had ever been circulated in Pennsylvania, a fact that the Commonwealth would later concede.  

The Commonwealth then filed a forfeiture petition on the cash and Lexus. Their petition alleged the money and Lexus was used to “facilitate a violation of the Drug Act.”  The actual owner of the Lexus filed a response claiming lawful ownership of the cash and Lexus and requested that her property be returned to her.

A non-jury trial was held on April 6, 2016. Prior to the trial, the owner filed a Motion in Limine to preclude any evidence concerning the ion scan because the expert who conducted the ion scan only compared the levels of narcotics to Pennsylvania standards. This is significant because there was no evidence that showed the money had ever been circulated in Pennsylvania. For unknown reasons, the trial court did not decide the Motion in Limine.

At the trial, the Commonwealth called multiple witnesses including the Trooper who stopped the Lexus and Staff Sergeant Marshall who performed the ion tests on the cash and the compartment. The owner of the Lexus did not present any evidence. Following the trial, the court granted the Commonwealth’s petition and found that the Commonwealth established a substantial nexus between the property and criminal activity. Specifically, the trial court found 27 indicators of criminal activity, including the ion scan evidence, in making its determination that the cash and Lexus were used to facilitate a violation of the CSA. The trial court also found that the owner failed to rebut the presumption of forfeiture by proving the innocent owner defense. The owner then filed an appeal.

What is Forfeiture for a Violation of the CSA?

The logic behind Civil Forfeiture for violations of the CSA is to eliminate the economic incentives of drug trafficking. These forfeiture statutes allow the government to take property away when they prove that there is a nexus between the property and a violation of the CSA. The government does not need a criminal conviction to obtain the property. Worse, an acquittal does not prevent the government from seizing one’s property via civil forfeiture.

All sorts of property can be subject to forfeiture including: cars, money, homes, and other property that the government can link to drug trafficking. It is likely one has heard anecdotal stories about people whose homes were seized by the government under these forfeiture statutes because a family member used the home in some nefarious way. Courts are mindful of this and consequently are not in favor of forfeiture. Thus, the courts will strictly construe the forfeiture statutes. Nonetheless, a person who was not engaged in drug trafficking can lose their home because of the actions of a family member or someone else living in their home. If the government files a forfeiture petition against you it is imperative you speak to an attorney immediately because you can lose your property, including your home.   

As a preliminary matter, the Pennsylvania General Assembly repealed and replaced the provisions of the Forfeiture Act that were used in this case. Nonetheless, this case will still be relevant in future litigation. The current and relevant forfeiture laws concerning the CSA are codified under 42 Pa. C.S.A. § 5802, § 5803, and § 5805. § 5805 lays out the procedure that the Commonwealth must follow to seize property that is allegedly connected to a violation of the CSA. § 5802 is specifically titled “Controlled Substances Forfeiture,” however § 5803(b)(4) also addresses forfeiture when there is probable cause to believe that the property has been used or is intended to be used in violation of the CSA.  

At the trial, the Commonwealth does not have to prove beyond a reasonable doubt that the property in question was used or intended to be used in violation of the CSA. Rather, the standard is the preponderance of the evidence standard which is the lowest standard available. In essence, the Commonwealth must show that it is more likely than not that a nexus exists between the property and the criminal activity.

If the Commonwealth meets its initial burden, the burden then shifts to the claimant to prove that 1) he/she is the owner of the property, 2) the property was acquired lawfully, and 3) the property was not used/or intended to be used unlawfully. The claimant can also allege that they are entitled to the innocent owner defense which requires that the owner lacked either knowledge or consent to the use of the property to facilitate a violation of the CSA.

The Commonwealth Court Demands More Convincing Evidence to Seize One’s Property Under CSA Forfeiture

In Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250, the Commonwealth Court found that the evidence in the case was not sufficient to form a substantial nexus to a violation of the CSA. First, the Court attacked the ion scan evidence. The Court focused on the fact that the Commonwealth failed to show that the money was ever circulated in Pennsylvania. This is significant because money can have traces of narcotics on it through casual contact. However, the levels of these narcotics vary depending on the geographic area of where the money was circulated. In other words, the levels of narcotics found on currency in Pennsylvania are different than those found in New York.

 Pennsylvania courts have made clear that ion scan evidence is irrelevant if it cannot be determined where the money was circulated. Because the Commonwealth could not establish that the money was ever circulated in Pennsylvania and its expert only used casual contact levels for Pennsylvania, and not other states (i.e. New York) the Commonwealth Court held that this evidence was not relevant and thus could not be used to establish whether there was a substantial nexus between the property and violations of the CSA.

Next, the Court focused on the fact that no drugs or drug paraphernalia were recovered in the Lexus and no drug charges were filed against either of the occupants. This omission, the Commonwealth Court stated, makes establishing a nexus to illegal activity “difficult.” Further, the fact that the occupants gave inconsistent stories is not indicative of illegal activity because they were under no obligation to speak to the officer. Additionally, the Commonwealth offered no support as to why tattoos and prayer cards are indicative of criminal activity. Finally, Pennsylvania court precedents hold that a large amount of cash that is bundled and driving on a known drug highway does not establish the requisite nexus for forfeiture. As such, the Commonwealth Court found that the Commonwealth did not meet its burden and reversed the trial court.

Facing Criminal Charges or Forfeiture Proceedings? We Can Help. 

Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta

If the government is attempting to seize your property using a civil or criminal forfeiture statute, you need an attorney who has experience with this complicated area of law. 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. 

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.