Philadelphia Criminal Defense Blog
PA Superior Court: Ordering Driver to Roll Window Down Is A Stop
Philadelphia Criminal Lawyer Zak Goldstein
Can the police make you roll down your car windows?
For years, Pennsylvania appellate courts have had some difficulty in defining the point at which a person is seized by police for Fourth Amendment purposes, finding in some cases that even where police clearly restrict a person’s movement, they may not be stopped. More recently, however, the Supreme and Superior Courts of Pennsylvania have issued a number of important cases which reflect the obvious fact that when the police tell you what to do, you are not free to leave. The Superior Court has now decided the case of Commonwealth v. Powell, holding that when police officers surround a legally parked vehicle and order the driver to roll down his window, the interaction is an investigatory detention (a stop) and not a mere encounter. This is important because in order to win a motion to suppress, a defendant has to show not only that the police acted without reasonable suspicion or probable cause, but also that they actually seized the defendant in some way. Police are free to walk up to any person and initiate a conversation without any level of suspicion. But once they start issuing commands, the situation changes dramatically and police are required to have reasonable suspicion or probable cause.
Commonwealth v. Powell
On April 27, 2018, an Edinboro, PA Police Officer was on duty in an unmarked police car along with a sheriff’s deputy. Both men were in uniform. At approximately 11:37 PM, the officer noticed a truck parked in the small public parking lot of the Lakeside Commons shopping mall. There were no stores open at the time. The truck’s engine was running, and the truck was legally parked. The officer testified that he normally patrols the lot, and in the past he has observed criminal activity in the lot such as drinking, drugs, and lewdness.
The officer testified that he pulled his vehicle directly behind the passenger side of the truck and he did not activate his lights. The officer and the deputy exited their vehicle and approached the defendant’s driver side and passenger side windows respectively. Prior to approaching the vehicle, the officer had not received any complaints about the defendant’s vehicle, nor had he observed any bad driving or suspicious behavior. When the officer and the deputy walked up to the defendant’s windows, the windows were closed. The officer observed the defendant in the truck eating food from Taco Bell, and the officer knew that there was a taco bell nearby.
The officer then ordered the defendant to roll his window down and observed the defendant with glassy eyes and a strong smell of alcohol coming from his person. The officer then asked the defendant for identification. Shortly after this request, the officer asked that the defendant perform sobriety tests. The defendant failed these tests and he was subsequently arrested for DUI.
The defendant then filed a motion to suppress all evidence that was obtained after his illegal detention. At his motion to suppress, the above stated facts were presented, and the trial court agreed that the defendant was illegally detained and consequently granted his motion. Specifically, the court found that no reasonable person would have believed that he was free to leave the encounter with the police. The Commonwealth then filed a timely interlocutory appeal. On appeal, the Commonwealth argued that the interaction between the defendant and the officers was just a mere encounter and thus he was not illegally seized.
What is a Mere Encounter?
When a defendant argues a motion to suppress, the Commonwealth will frequently suggest that the motion should be denied because the interaction between the defendant and the police was just a “mere encounter.” Mere encounters are considered to be routine interactions between citizens and police. They do not require any level of suspicion and do not involve any official compulsion by the police. Additionally, a mere encounter is considered consensual, and thus a citizen is allowed to terminate this interaction whenever he or she so chooses. It is important to note that just because an officer asks for identification, it does not necessarily escalate a mere encounter into an investigatory detention. The crucial factor in determining whether the mere encounter has evolved into an investigatory stop (or an arrest) is whether the individual would have reasonably felt free to terminate the interaction between himself and the police. In other words, if a reasonable person would not have felt free to end the encounter, then it is not a mere encounter. The reason this significant is because the police need reasonable articulable suspicion that a defendant is engaged in criminal activity before they can stop them for an investigatory detention.
As such, when a defense attorney litigates a motion to suppress, they are often trying to elicit facts to suggest that a reasonable person would not have felt free to leave. Often times this involves soliciting facts such as: the placement of the officers, what they were wearing, whether their weapons were visible, how many officers were involved, the tone of questioning, whether they touched the defendant, whether he was in handcuffs, etc. At the conclusion of the hearing, the defense attorney will then argue that based on the facts of the particular case this was not a mere encounter, bur rather an investigatory detention and therefore the police needed reasonable suspicion to stop him in the first place.
The Superior Court’s Decision
The Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. In its opinion, the trial court found several factors that escalated the interaction from a mere encounter to an investigatory detention. Specifically, the Superior Court found that the officers positioning themselves on both sides of the defendant’s vehicle and ordering him to roll his window down showed that this was not a mere encounter. Because the defendant was legally parked and not doing anything illegal, the officers lacked reasonable suspicion to stop him. Therefore, the Commonwealth will not able to use any of the evidence it obtained after illegally stopping the defendant in his trial, and the DUI charges should be dismissed.
Facing Criminal Charges? We Can Help.
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and 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.
Read the Superior Court’s Opinion
Video Explanation of Federal Felon in Possession of a Firearm Charges
Goldstein Mehta LLC Rated Among Best DUI Lawyers in Philadelphia
Philadelphia Criminal Defense Attorneys Zak Goldstein and Demetra Mehta of Goldstein Mehta LLC have just been selected by Expertise to their 2020 list of the Best DUI Defense Attorneys in Philadelphia. We greatly appreciate the recognition and will continue to fight hard for our clients' rights every day in and out of the courtroom. Learn more about DUI Defense.
PA Superior Court: Search of Cell Phone After Expiration of Search Warrant Violates Fourth Amendment
Zak Goldstein - Philadelphia Criminal Defense Attorney
The Pennsylvania Superior Court has decided the case of Commonwealth v. Bowens, holding that the police may not search a cell phone after the warrant authorizing the search has expired even if the police initially had technical difficulties with the phone and did not view any data that would have been generated after the warrant expired. This is an important decision because it shows that PA appellate courts continue to reject prosecutors’ attempts to create a good faith exception to the exclusionary rule in Pennsylvania.
Commonwealth v. Bowens
On October 12, 2016, a Pennsylvania State Trooper observed a vehicle abruptly change lanes from the passing lane to the right lane, nearly hitting another vehicle. After activating the emergency lights on his vehicle, the trooper observed the driver of the vehicle reaching over towards the glove box as he pulled the car onto the shoulder of the road. The defendant was sitting in the front passenger seat. While speaking with the defendant and the driver, the trooper noticed that the men seemed nervous. The driver informed the trooper that the car belonged to his girlfriend in New Jersey. He also stated that he and the defendant were travelling from York to Lancaster and then to Chester and Philadelphia.
While the trooper was speaking with them, another trooper learned that there were arrest warrants outstanding for both men. The trooper then took the men into custody and took possession of their cell phones. The trooper then set the defendant’s phone to airplane mode and placed it inside an aluminum foil-lined pouch for safekeeping. The trooper impounded the vehicle and conducted an inventory search. The glove box was locked, and both the defendant and the driver denied having the key. They also denied knowing anything about the contents of the glove box. The trooper then contacted the driver’s girlfriend who gave him permission to search the glove box. She also stated that the driver had the key.
The trooper obtained a search warrant to search the glove box. Inside the glove box, he found heroin, drug paraphernalia, and two firearms. The trooper then obtained a search warrant for the cell phones and provided them to a detective with the Northern York County Regional Police Department who was a forensic expert in the field of cell phone data extraction. The search warrant expired on October 16, 2016 at 10:45 AM. On October 20, 2016, the detective notified the Trooper that he had completed the cell phone extraction, which revealed text messages between the defendant and his companion using language common to the illicit drug trade. The defendant’s phone also contained photographs of cash and of a handgun similar to the one found in the glove box.
The defendant was subsequently charged with Possession with the Intent to Deliver (“PWID”), conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried without a License, and Possession of Drug Paraphernalia. The defendant then filed a motion to suppress. At the motion to suppress hearing, the trial court denied his motion in part and granted it in part. The defendant argued that the contents of the defendant’s phone search should be suppressed because his phone had been searched after the search warrant had expired. However, the trial court held that because the phone had been in airplane mode, there were no “staleness concerns that would be present in other factual scenarios where the probable cause determination would have expired.” Further, the trial court found that delay in searching the phone “was a product of coordination delays between the police possessing the software and the expertise to do the job.” The court did hold that any information that was sent to the phone after the search warrant had expired would be inadmissible at trial.
The defendant then proceeded to a jury trial where he was found guilty of all the charges, and he was sentenced to 15 years 9 months’ to 31 years 6 months’ incarceration. The defendant then filed a timely post-sentence motion. After the trial court denied the motion, he filed his appeal. On appeal, the defendant raised several issues. However, for purposes of this blog, only the issue of whether the evidence was sufficient to convict the defendant of the drug and firearms offenses and whether the trial court improperly denied his motion to suppress the data that was found on his phone.
Do Search Warrants Expire in Pennsylvania?
Yes. Rule 205(A)(4) of the Pennsylvania Rules of Criminal Procedure states that a search warrant must be executed within a specific period of time, not to exceed two days from the time of the issuance or if the warrant is issued for a prospective event, then only after the event has occurred. There are not exceptions to Rule 205(A)(4) and the failure to adhere to this rule amounts to a “federal constitution violation.”
The Superior Court’s Decision
The Superior Court reversed the trial court’s decision to deny the motion to suppress. The Court found that the trial court committed reversible error when it denied the defendant’s motion to suppress. The trial court found that because the detective searched the phone past the expiration date of the search warrant, this amounted to warrantless search. Additionally, the Superior Court found that this error was not harmless, because the evidence from the cell phone extraction was the only evidence that the Commonwealth presented to support its conspiracy charge.
Additionally, the Superior Court found that there was not enough evidence to convict the defendant of possessing the firearms or the drugs. The Superior Court reasoned that the Commonwealth did not prove that the defendant had constructive possession of the contraband at the time of the traffic stop. The Superior Court stated that the defendant did not have access to the key to the glove compartment because it was in possession of his co-defendant and there was no evidence presented that he had control over the contraband. Rather, the only thing the Commonwealth proved was that the defendant was merely present in the vehicle at the time of the traffic stop.
Consequently, the defendant’s sentence was vacated. His convictions for PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and Firearms Not to be Carried Without a License are also vacated and the Commonwealth cannot retry him on those charges because the evidence was not sufficient to convict him of them. Therefore, the only charge remaining against him is the conspiracy charge and he will get a new trial on that charge.
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. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and 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.