Philadelphia Criminal Defense Blog

Zak Goldstein 9/25/20 Zak Goldstein 9/25/20

PA Superior Court: Odor of Marijuana No Longer Provides Automatic Probable Cause for Search of Car

Philadelphia Criminal Defense Lawyer Zak Goldstein

Can the police search your car if they smell marijuana in Pennsylvania?

The Superior Court has decided the case of Commonwealth v. Barr, holding that the smell of marijuana alone does not always give police officers probable cause to search a car. This decision is very significant because police officers often argue that they had probable cause to search someone’s property (usually an automobile) because they smelled marijuana. Further, suppression courts often treated the smell of marijuana as an automatic basis for upholding the legality of a search. That all changed when Pennsylvania legalized medical marijuana. Now, because the odor of marijuana could come from legally-possessed marijuana, police may not search a car solely because they detect an odor of marijuana. Instead, they must have specific reasons giving rise to probable cause to believe that a crime is ongoing or that they will find evidence of a crime if they search the car.

Commonwealth v. Barr

Two Pennsylvania State Police (“PSP”) troopers were on routine patrol in a marked police unit in Allentown, Pennsylvania. The troopers observed a silver Chrysler 300 making a U-Turn and they decided to follow the car. While following the car, they noticed the car was driving at a “fast rate of speed.” They then noticed that the car failed to stop at the solid white stop line on a road near the stop sign. Consequently, the troopers stopped the car for this alleged motor vehicle violation. After the troopers activated their lights and siren, the car pulled over immediately.

Upon approaching the car, one of the troopers immediately noticed the smell of burnt marijuana. The defendant’s wife was driving the vehicle, while the defendant was seated in the front passenger seat and his co-defendant was sitting in the backseat. The troopers then asked the defendant’s wife to exit the vehicle so they could interview her and confirm that she was not under the influence. A short time later, one of the troopers got into an argument with the defendant. Eventually backup officers arrived and the defendant exited the vehicle. The argument ended after the defendant exited the vehicle.

After he exited the vehicle, the troopers advised the defendant that they would search the automobile. The defendant then presented the trooper with a medical marijuana identification card that allows him to possess and ingest medical marijuana pursuant to this license. Despite the defendant showing the troopers his card, they still searched the car due to the odor of marijuana. The troopers found a “marijuana shake,” a sealed Ziploc plastic bag containing marijuana, baggies, and a loaded handgun. The defendant was subsequently arrested and charged with Persons Not to Possess a Firearm, Possession of Firearm Without a License, and Possession of a Small Amount of Marijuana.

Prior to trial, the defendant filed a motion to suppress. At the suppression hearing, the above facts were placed on the record. Additionally, the defendant’s doctor testified at this hearing. He testified that the defendant had an underlying health issue that qualified him for a medical marijuana card. Further, he testified that that there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana that is purchased on the streets. Also, he testified that there is no difference in odor when one smokes medical marijuana utilizing a vaping pen and the odor of smoking marijuana without a vaping pen. Finally, the fact that 143,000 patients in Pennsylvania are legally allowed to obtain, possess, and ingest medical marijuana was also placed on the record.

At the conclusion of the hearing, the trial court granted the defendant’s motion to suppress. In its decision, the trial court did not consider the smell of marijuana in its analysis as to whether the troopers had probable cause to search the automobile. The Commonwealth then filed a timely appeal. On appeal, they argued that the trial court erred when they granted the defendant’s motion to suppress because the officers had probable cause to search the automobile because the troopers smelled marijuana.

The Superior Court’s Decision

The Superior Court affirmed the lower court’s decision. In in its decision, the Superior Court first reviewed prior decisions that addressed this issue. The Superior Court stated that contrary to the Commonwealth’s position, there never was a per se rule that the odor of marijuana was always sufficient to establish probable cause. Next, the Court examined the realities of the Medical Marijuana Act. As a result of its passage, hundreds of thousands of law-abiding Pennsylvanians could potentially emit an odor of marijuana. As such, the argument that an individual is committing a crime solely on the basis of the smell marijuana was severely weakened because of the Medical Marijuana Act. The Court went on to say that if they allowed a per se rule that allowed officers to search one’s person or property solely because they smelled marijuana, it would subject law-abiding citizens to impermissible intrusions.

However, the Superior Court did state that the smell of marijuana can play a factor to determine whether the police had probable cause. Marijuana is still technically illegal unless an individual has been granted permission to possess it under the Medical Marijuana Act. Therefore, the lower court was wrong to not give it any weight when making its decision as to whether the officers had probable cause to search the automobile. Consequently, the defendant’s case will be remanded back to the lower court to review the record again to determine whether the troopers had probable cause to conduct their search. The court may give the odor of marijuana some weight, but the odor of marijuana alone no longer justifies a search.

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Zak Goldstein 9/19/20 Zak Goldstein 9/19/20

PA Superior Court: Speedy Trial Rule Requires Commonwealth to Make Reasonable Efforts to Extradite Defendant

The Superior Court has decided the case of Commonwealth v. Morgan, holding that PA’s speedy trial rule, Rule 600, applies to defendants who are incarcerated in other states and the Commonwealth must be diligent in extraditing them back to Pennsylvania to stand trial. The Commonwealth may not simply wait until a defendant finishes serving a lengthy sentence in a another state before proceeding on criminal charges in Pennsylvania. Morgan holds that the Commonwealth must take active steps to bring the defendant to trial even when he is incarcerated in a different state.

Commonwealth v. Morgan

In October 2008, while serving a sentence in Bucks County, the defendant absconded from a work release program. Shortly thereafter, the Bucks County Sherriff’s Office (“BCSO”) filed a written complaint charging the defendant with escape, and a magisterial district judge issued a warrant for his arrest. About a week later, the BCSO received notice that the defendant was being held on homicide and firearm charges in the state of Georgia.

A preliminary hearing was held in Bucks County, in absentia, and the defendant was declared a fugitive. The BCSO sent a fax to Georgia authorities requesting that a detainer be placed on the defendant and that extradition proceedings be commenced. An official in Richmond County, Georgia responded stating that the defendant waived extradition. However, the official advised the BCSO that if the defendant was convicted and sent to jail for his Georgia charges, they would need to secure a separate detainer with the Georgia Department of Corrections and then restart the extradition process.

In February 2010, the defendant was found guilty of involuntary manslaughter and possession of a firearm during the commission of a crime in Georgia. He was sentenced to a term of ten to twenty years’ incarceration in a Georgia prison. After his conviction, the Georgia authorities did not reach out to the BCSO or any Commonwealth employee. However, no BCSO or Commonwealth agent contacted the Georgia authorities for almost two years after his conviction.

In September 2012, the BCSO sent an email to the Richmond County’s Sherriff’s office requesting an update on the defendant’s case. The BCSO received a response that same day stating that he was now housed in a prison in Valdosta, Georgia and that in order to have a detainer lodged against him they would need to reach out to the Georgia Department of Corrections. The BCSO subsequently responded to this email and said that they would like a detainer lodged against him. However, the BCSO did not actually contact the Georgia Department of Corrections. Based on the record, the BCSO did not take any further action on the defendant’s case for six years.

In June 2018, the BCSO faxed a detainer request to the Georgia Department of Corrections. The Georgia Department of Corrections was able to confirm receipt of their email and then lodged a detainer against the defendant. By this point, the defendant had been incarcerated in Georgia for nearly a decade and had been scheduled to be released on October 15, 2018. The BCSO took him into custody on October 25, 2018.

Back in Pennsylvania, the defendant filed an omnibus motion arguing that his case should be dismissed pursuant to Rule 600(a)(2)(A). Specifically, he argued that the Commonwealth had failed to exercise due diligence in trying to bring him to trial. Following a hearing, the trial court denied his motion. In April 2019, the defendant then elected to have a bench trial where he was found guilty of escape. He was then sentenced three and a half years to seven years’ incarceration. The defendant then filed a timely appeal.

What is Rule 600?

Rule 600(A) states that a defendant must be brought to trial within 365 days of the filing of the criminal complaint and if he is not then the case should be dismissed. The purpose of Rule 600 is to protect a defendant’s speedy trial rights, while also protecting society’s right to effective prosecution of criminal cases. If a defendant is not tried within 365 days of the filing of the complaint, Rule 600 requires that the court determine whether the Commonwealth exercised due diligence and whether the circumstances that caused the delay of a defendant’s trial were beyond the Commonwealth’s control.

For the purposes of computing time under Rule 600, the court will determine whether or not the Commonwealth was duly diligent in litigating its case against the defendant. In other words, when the Commonwealth causes the delay (i.e. discovery is outstanding or they have not been able to contact a necessary witness) that time ordinarily goes against the Commonwealth. However, if the defense causes the delay, then that time is not factored in for purposes of 600. If the Commonwealth violates Rule 600, then the Court should dismiss the case with prejudice. Rule 600 is generally enforced more strictly in Philadelphia than in the surrounding counties, but it does apply throughout the state.

The Superior Court’s Decision

The Superior Court reversed the defendant’s conviction because they found that the Commonwealth was not duly diligent in bringing the defendant to trial. The Commonwealth filed its criminal complaint against the defendant in October 2018. As such, the Commonwealth was required to bring the defendant to trial within 365 days of that filing. However, the defendant was not brought to trial until April 2019, which was more than ten years after the expiration of the defendant’s mechanical run date under Rule 600.

The Superior Court found that it did not matter that the defendant was incarcerated in another state. It does not appear that Georgia would have extradited the defendant while his homicide charges were pending, and thus this time would not have counted against the Commonwealth. However, the Court found that there was no evidence that Georgia would not have cooperated and sent the defendant to Pennsylvania after he was convicted. Consequently, the Superior Court found that the Commonwealth did not act with due diligence because they waited more than eight years after he was convicted to reinitiate extradition proceedings against the defendant. Thus, the Commonwealth does not necessarily have to take steps to move for extradition while charge s are pending in another state, but once a defendant has been sentenced, the Commonwealth must try to extradite the defendant. Therefore, the defendant’s conviction is vacated and he will be released from prison.

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Zak Goldstein 9/12/20 Zak Goldstein 9/12/20

PA Superior Court: You Can't Suppress an Assault Even If Police Entered Your House Illegally

The Superior Court has decided the case of Commonwealth v. Schneider, holding that a defendant cannot suppress testimony regarding his assault on officers even if he can prove that the police illegally entered his home prior to the assault taking place inside the home. Although the physical contraband that police found as a result of the illegal search should have been suppressed, the court ruled that the police could still testify regarding the defendant’s physical actions despite the illegal entry.

Commonwealth v. Schneider

A Crisis Unit worker spoke with a local police officer and expressed an interest in having the officer accompany him to conduct a mental welfare check on the defendant. The worker wanted the officer to accompany him for the check out of safety concerns. According to the Crisis Unit worker, the defendant said that he believed that he was Jesus Christ, Thor, and Jim Carrey. It is worth noting, that at the time of the request, there were no allegations that the defendant was armed; was in danger of harming himself or others; was malnourished or lacked utilities. The police officer and the Crisis Unit Officer arrived at the defendant’s home, and the police officer knocked on the defendant’s door. The defendant answered and at first, the interaction was fine. However, the defendant then told the officer to take off his “peashooter” because guns kill people. The defendant then tried to close his door, but the officer placed his foot in the doorway to prevent the defendant from closing it, and the officer then went into the defendant’s home.

The officer then had the defendant sit in a chair. The defendant began to chant incoherent things, and his eyes blinked rapidly. Then, unprovoked, the defendant struck the officer. Eventually, the officer and the defendant began to struggle. The officer called for backup, and the police tasered and pepper sprayed the defendant. After several minutes, the police put the defendant in handcuffs and then escorted him into a police vehicle. After the police arrested the defendant and removed him from his home, an officer re-entered the house and saw marijuana and a pipe in plain view. Prosecutors charged the defendant with aggravated assault, simple assault, resisting arrest, possession of a controlled substance, and possession of drug paraphernalia.

Prior to his trial, the defendant filed a motion to suppress the drugs, paraphernalia, and the officers’ testimony about his alleged actions when the police entered his home. The defendant argued that the police had illegally entered his house without a warrant, and therefore all of the evidence against him was the fruit of unconstitutional action by the police and should be suppressed. At the suppression hearing, the officers testified to the above assertions. Additionally, the officer testified that he believed the defendant was a threat to himself and others.

At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. The trial court stated that because the officer reasonably believed that the defendant needed mental health assistance, the warrantless entry of his home was justified under the Community Caretaking Doctrine. The defendant then proceeded to a jury trial where he was convicted of the above charges and sentenced to five years’ probation. The defendant then filed a timely appeal. The defendant raised several issues on appeal, but for purposes of this blog only the issue of whether his motion to suppress was wrongly decided will be addressed.

What is the Community Caretaking Doctrine?

The Community Caretaking Doctrine is an exception to the Fourth Amendment’s warrant requirement. This doctrine permits a warrantless entry into someone’s home if the purpose of the officer’s entry was to render aid or assistance, rather than the investigation of criminal activity. In order for a seizure to be justified under this exception, the officer must be able to point to specific, objective, and articulable facts which would reasonably suggest to an experience officer that assistance was needed. Additionally, the police action must be independent from the detection, investigation, and acquisition of criminal evidence. Finally, the action taken by police must be tailored to rendering assistance or mitigating the peril. Once assistance has been provided or the peril mitigated, then further police action will be evaluated under traditional Fourth Amendment jurisprudence.

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision denying the defendant’s motion to suppress and ordered that he receive a new trial. The Superior Court found that prior to entering the defendant’s home, there was not sufficient evidence for the officer to reasonably believe that the defendant required immediate assistance. The defendant’s odd behavior was not enough to justify a warrantless entry into his home. Further, the Superior Court emphasized that none of the defendant’s actions were threatening, combative, or violent prior to the officer entering his home. Additionally, there was no evidence that the defendant had a weapon, was malnourished, and did not look like he was hurt or intended to hurt anyone. In other words, there was no evidence to suggest that the defendant needed any form of assistance.

The Superior Court opined that the officer entered the defendant’s home to conduct additional investigation of the defendant’s mental health. This is not constitutionally permissible. According to the Superior Court, an officer cannot enter an individual’s home without a warrant to investigate if that person needs assistance. At the same time, however, the Superior Court ruled that the assault could not be suppressed. In other words, the physical evidence and contraband was suppressed because the officers should not have been in the home. But the assault on the officers itself could not be suppressed regardless of the fact that the police entered the home illegally. Nonetheless, the testimony regarding the contraband could have contributed to the jury convicting the defendant of the assault-related charges, and so the defendant will receive a new trial on all of the charges without the suppressed evidence.

This opinion is good and bad for privacy rights; it is good in that the court continued to enforce limits on the ability of police to enter a private home without a warrant, but it is bad in that the court still allowed prosecutors to proceed on resisting arrest and assault charges that stemmed from the officers’ decision to illegally invade the defendant’s home without a search warrant or arrest warrant.

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Zak Goldstein 9/8/20 Zak Goldstein 9/8/20

PA Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn't Speak English

Criminal Defense Lawyer.jpg — Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Carmenates. This decision is significant because it holds that a defendant does not need to completely understand a trooper’s directives in order to make a knowing, intelligent, and voluntary decision to allow the police to search his property. This decision is especially troubling given the fact that there are so many people in the United States who either do not speak English or have a limited proficiency with the English language. As such, this decision could cause significant problems for non-English speaking individuals who are stopped by the police.

Commonwealth v. Carmenates

A Pennsylvania State Trooper stopped the defendant during a routine traffic stop because the defendant supposedly was not traveling a safe distance behind the truck in front of him. After he stopped the defendant, the trooper noticed that the defendant had a suitcase and several large duffle bags covered by a blanket in the backseat. Additionally, the trooper noticed a large teddy bear, fast food, air fresheners and religious paraphernalia in the car. According to the trooper, the fast food showed that the defendant had engaged in “longer” and “harder” travel. Further, the trooper claimed that the religious paraphernalia was common among drug traffickers because it was used to bring them good luck during their travels.

The defendant did not really speak English. Therefore, the trooper used Google Translate on his phone to communicate with the defendant even though he would later admit that it is not always accurate. The trooper asked the defendant for his license, registration, and proof of insurance, but the defendant was supposedly trembling when looking for that information. The trooper then asked the defendant to step out of his car while he ran his information. The trooper also acknowledged that because it was December it was chilly outside.

After reviewing his information, the trooper concluded that there were no issues with the defendant’s information. The Trooper then told the defendant he was going to be issued a digital warning. The trooper then asked if he could see the defendant’s luggage, and the defendant supposedly consented to the search. Upon searching the luggage, the trooper discovered that the duffle bags contained marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver (“PWID”) and possession of paraphernalia.

The defendant then filed a motion to suppress. At the suppression hearing, the above facts were placed on the record. Additionally, the defendant testified that he felt that he had to follow the trooper’s orders. He said the reason he opened the bag was because the officer pointed at it and that he did not realize that he could decline to consent to the search. At the conclusion of the hearing, the defendant argued that he did not knowingly, intelligently, or voluntarily consent to the search. The suppression court agreed and suppressed the drugs and paraphernalia that were found in the defendant’s car. The Commonwealth, then filed a timely appeal.

Do you have to let the police search your stuff?

No, you do not. In general, you do not have to let the police search your belongings whether those belongings are in your house or in your car. If the police have a search warrant, then they can gain access to your house to search your things. With respect to the search of a car, the police typically do not need a search warrant, but they do no need probable cause. However, the probable cause requirement disappears if you tell the police that they have permission to search your things. Therefore, if you have a car full of marijuana, guns, dead bodies, or other contraband, it is usually a bad idea to give the police permission to search the car. Instead, it is usually advisable to tell them that they do not have your consent to conduct a search. If they have probable cause or believe that they have probable cause, they may search the car anyway, but you will have a better case for challenging the legality of the search in court. If you tell them they can search the car, then you will have a very hard time challenging the legality of the search. This advice generally applies even if you do not think you have anything illegal in the car as someone else who uses your car could have left some evidence of a crime in the car without your knowledge.

The Fourth Amendment protects against unreasonable searches and seizures. A warrantless search is unreasonable unless an exception applies. A consent to search is a valid exception. In determining whether a consent to search is valid, there must be a finding that the defendant’s consent to search was knowing, voluntary, and intelligent. In making its decision, the suppression court is supposed to look at a variety of factors in its decision. This is a very fact intensive inquiry and therefore the courts will consider any or all of the following: how many officers are present; whether there was physical contact, the officers’ demeanor; whether the defendant was informed that he did not have to consent to the search; whether the police directed the defendant’s movements; the defendant’s maturity, intelligence and education; and any other relevant factors.

The Superior Court’s Decision

The Superior Court reversed the suppression court’s decision. In its decision, the Superior Court found that the defendant’s consent was knowing, intelligent, and voluntary. Specifically, the Superior Court found that the defendant was legally stopped because he was following the truck too closely. Additionally, the Superior Court found that the trooper was not aggressive, did not draw his weapon, and that this was an “even tempered interaction.” Further, the Court found that it was of no significance that the defendant “felt” that he needed to open the baggage.

What is troubling about the Court’s decision is that it appeared to only focus on the lack of coercion by the trooper. The Court barely focused on whether the defendant made a knowing and intelligent decision to consent to searching his property. The Court found that it was not significant that the defendant and the trooper had a language gap and that Google Translation was not always accurate. Therefore, the Commonwealth will now be able to use the drugs and paraphernalia against the defendant at his trial. This is particularly alarming because the trial court, as the finder of fact which was able to actually view the testimony of the witnesses, had concluded that the consent was not really voluntarily given. The Superior Court appears to have substituted its own judgment for that of the trial court without having had the opportunity to observe the witnesses.