Philadelphia Criminal Defense Blog

Zak Goldstein 1/6/22 Zak Goldstein 1/6/22

PA Supreme Court: Prosecutors Must Introduce Real Evidence of Dangerousness to Revoke Bail

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Talley, holding that prosecutors must introduce real evidence that a defendant is a danger to the community and no conditions of release can prevent that danger in order to revoke bail. This situation frequently comes up where a defendant has been held in custody on cash bail for 180 days. Once that happens, the defense may file a motion for nominal bail pursuant to Pennsylvania Rule of Criminal Procedure 600(B). Pursuant to 600(B), a defendant may not be held in custody for more than 180 days (with exceptions for periods of time where the defense caused the continuance) without a trial. If 180 days pass from the date of arrest, then the defendant should be released on nominal bail. In response, prosecutors frequently move to revoke bail, arguing either that the defendant is too big of a flight risk to release or that the defendant is so dangerous that he or she should not be released. Courts often grant these motions based solely on the prosecutor’s hearsay representations regarding the strength of their case and a defendant’s criminal history, and the Supreme Court has now ruled that such a procedure is not constitutional.

The Facts of Talley

The defendant was arrested and charged with aggravated assault, stalking, harassment, and related charges. Police alleged that he had sent threatening messages to his ex-girlfriend via social media and also shot a bullet into the wall of her house. This behavior went on for a while, and police eventually arrested Talley for these charges. The specifics of the charges are not particularly relevant to the issue in the appeal other than the fact that the charges involved violent crimes.

The defendant was initially released on bail. While he was in custody, the threatening messages had stopped. Once he was released, the complainant began to receive them again. The police arrested the defendant again, and his bail was increased. He was not able to afford the new bail, and he was held in custody.

After the Commonwealth held the defendant in custody for more than 180 days, he filed a motion for release on nominal bail pursuant to Pennsylvania Rule of Criminal Procedure 600(B). 600(B) permits a defendant to petition for nominal bail after they have been held for more than 180 days through no fault of their own. The individual should generally be released at that point, often on house arrest. In response, however, the Commonwealth usually files to revoke the defendant’s bail, arguing that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.”

The trial court waited four months to hear the motion but eventually held a hearing on it. At the hearing, the Commonwealth simply argued that based on the facts of the case as described in the affidavit of probable cause, the defendant was a risk to the complainant and the community and that he should be held in custody. The Commonwealth also insisted that the defendant could not be released on house arrest without explaining any particular justification for that assertion. The court then denied the defendant’s motion.

The Supreme Court Appeal

The Supreme Court ultimately accepted the defendant’s appeal in order to clarify what type of evidence and how much evidence the Commonwealth must present at a hearing on a motion to revoke a defendant’s bail completely. While hearsay is generally allowed at bail hearings, the motion to revoke bail is different because all defendant’s other than those facing a life sentence for a first degree murder charge are entitled to bail. Therefore, the Commonwealth has to prove that the defendant is actually a risk to the community.

In the past, most judges have allowed the Commonwealth to simply make argument. In other words, the prosecutor will generally describe the allegations, claim that the evidence is very strong, and tell the court about any prior convictions that the defendant has. If the defendant has no record, most judges will grant the motion for nominal bail and release a defendant on house arrest. But where a defendant has a criminal record, many judges will revoke bail at the Commonwealth’s request without conducting any significant review of either the evidence of dangerousness or the strength of the evidence in the case.

The Supreme Court clearly rejected this procedure and held that the Commonwealth must show more than a mere prima facie showing that the defendant has committed the crimes charged. Thus, the fact that the defendant has been held for court following a preliminary hearing or that an arrest warrant was issued is not enough. At the same time, the Pennsylvania Constitution does not require the Commonwealth to introduce proof beyond a reasonable doubt. Instead, the Commonwealth must present a substantial quality of legally competent evidence, meaning evidence that is admissible under the Rules of Evidence, to show the trial court that the defendant should not be released. The Commonwealth may not simply describe the evidence, provide the trial court with hearsay, or rely upon a cold record or untested assertions alone. The Commonwealth must call actual witnesses and present real evidence to show that it is substantially more likely than not that the accused should not be released because the accused is too dangerous to be released.

The Court emphasized that this is a high evidentiary standard that applies only to a motion to revoke bail. It does not apply to a general motion to raise bail. Further, the Court should strongly consider release conditions that can ensure the safety of the community such as regular check ins with pre-trial services, house arrest, electronic monitoring, and things of that nature. The practice of simply asserting that the defendant committed a serious crime and so should be held without bail is no longer acceptable.

Ultimately, this opinion should result in far fewer defendants being held without bail simply because they asserted their speedy trial rights under Rule 600(B). The Court has added some real teeth to the rule by significantly increasing the burden that the Commonwealth must meet in order to hold someone without bail when they are not charged with murder. Most defendants should now not be held without bail even where they are charged with serious crimes if they do not have a history of committing crimes while released on bail or have never been placed on house arrest before. Thus, courts throughout the Commonwealth will now be required to mores strictly enforce the speedy trial guarantee of Rule 600(B). This is a great decision as many defendants are held without bail for years while awaiting trial while ostensibly presumed innocent. Now the presumption of innocence should have more meaning in Pennsylvania.

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Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in 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.

Zak Goldstein 1/1/22 Zak Goldstein 1/1/22

PA Superior Court: Presence in “High Crime Area” Not Legally Sufficient to Stop Individual

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Singletary, holding that the police unlawfully seized the defendant given that they seized him solely because he was in a high-crime area. This decision is significant because it reaffirms a long-standing rule that the police cannot stop and seize an individual solely because he is in a “high crime area” without evidence that the person is actually engaged in criminal activity. Police will frequently use a person’s presence in a “high crime area” to try to justify a stop and seizure of a defendant. Although being in a “high crime area” still remains one factor that police can consider in deciding to stop someone, it cannot be the sole reason for a stop, and Singletary reaffirms this principle.

Commonwealth v. Singletary

A Chester City police officer was responding to a nuisance call. This area was known for its on-going illicit drug activity. When the officer arrived on scene, he observed a large group of individuals who began to disperse upon his arrival. The officer then parked his vehicle and exited it. He told the remaining individuals that loitering was not permitted in the area.

The officer then observed a Mercedes SUV, which was not running, parked in a legal parking spot on the opposite side of the street from where the officer had parked his car. The SUV had two individuals inside it, one of them being the defendant who was sitting in the front passenger seat and the other individual who was in the driver’s seat. The officer then approached the driver’s side of the vehicle and requested identification from the two men. The driver gave the officer his passport, while the defendant gave him his photo ID. The officer then radioed the information in and determined that the driver had a suspended license and that the vehicle did not have insurance. Neither the defendant nor the driver owned the vehicle. The officer also determined that neither of the men had outstanding arrest warrants.

The officer observed an empty pill bottle on the driver’s lap. Another officer arrived shortly thereafter and then went to the passenger side of the vehicle. Soon after, the officers had the defendant and the driver exit the vehicle. As the defendant was exiting the vehicle, the officers heard a hard metal object hit the ground, at which point the defendant began to run from the officers. One of the officers gave chase but did not apprehend him at that time. The officers found a firearm with an obliterated serial number from the location where they heard the sound of a metal object striking the ground. Later that day, the defendant was located. He was arrested and charged with firearms not to be carried without a license, altered or obliterated mark of identification, flight to avoid apprehension or trial or punishment, recklessly endangering another person, and disorderly conduct.

The defendant filed a motion to suppress. At the suppression hearing, the police testified to the above facts, and there was also a stipulation that one of the officers would also have testified that she saw the handgun fall from the defendant’s lap as he got out of the car before he took off running. At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress. The suppression court held that the officers had illegally seized the defendant for purposes of the Fourth Amendment. Specifically, the suppression court held that the initial encounter between the officer and the defendant was a mere encounter. However, when the officers asked the defendant to exit the vehicle it evolved into an investigative detention and a reasonable person would not have felt that were free to leave. However, this detention was not legally justified because it did not derive from a traffic stop or any unlawful or suspicious activity. The suppression court concluded that the defendant had been seized solely because he was in a “high crime area,” and this was not legally sufficient to justify the officers’ seizure of him.

The Commonwealth then filed a timely appeal. On appeal, the Commonwealth raised two issues: 1) that the suppression court erred when it concluded that the officers lacked legal authority to order the defendant to exit the vehicle and 2) that the initial interaction between the officers was a mere encounter that evolved into a lawful legal stop that was supported by reasonable suspicion and probable cause.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. The Superior Court agreed that the initial encounter between the defendant and the police was a mere encounter. However, this stop then evolved into an unlawful detention. The Superior Court highlighted the fact that the officers stood on each side of the vehicle and that they requested that the defendant and the driver leave the vehicle (while their identifications remained in police possession). According to the Superior Court, this “restrained [the defendant’s] liberty of movement.” Further, the act of ordering them out of the vehicle (despite not having any outstanding warrants), would signal to a reasonable person that they were not free to leave.

Further, the Superior Court found that the officers lacked reasonable suspicion to conclude that the defendant was involved any criminal activity. The mere fact that the defendant was in an area with an on-going open-air drug dealing problem was not enough to conclude that the defendant was involved in said activity. As such, the Superior Court agreed with the suppression court that the defendant had been unlawfully seized, and therefore, the Commonwealth will not be able to use the gun against him at his trial.

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Zak Goldstein 12/30/21 Zak Goldstein 12/30/21

PA Supreme Court Agrees: Odor of Marijuana Does Not Provide Probable Cause to Search Vehicle

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Barr, holding that the odor of marijuana alone no longer provides the probable cause necessary for the police to search a motor vehicle. Instead, the police may consider the odor of marijuana as a factor in terms of whether they have probable cause, but they may not search a car solely because it smells like marijuana. The Superior Court had previously reached a similar conclusion, and the Supreme Court has now upheld that decision.

The Facts of Barr

In Barr, a Pennsylvania State Police Trooper was training a newly-hired Trooper. The troopers were on routine patrol in Allentown, PA when they saw a vehicle make a U-turn. The U-turn was not illegal, but the troopers decided to follow the vehicle. The vehicle appeared to be speeding and it was past midnight, so the troopers continued to follow it. Eventually, the vehicle failed to properly stop at a stop sign, so the troopers pulled it over. The troopers approached the vehicle, and as they arrived at the window, they smelled the odor of marijuana. The defendant’s wife was the driver of the vehicle, the defendant was in the front passenger seat, and a third gentleman was in the rear passenger seat. He appeared to be drifting in and out of sleep.

After smelling the odor of burnt marijuana, the troopers directed the driver to get out of the car. The defendant began to argue with the troopers and insist that “no one is getting out of this fucking vehicle.” Backup officers from the Allentown Police Department arrived, and the defendant became more cooperative. The trooper then informed the occupants of the vehicle that he was going to search the vehicle due to the odor of marijuana. The driver and the defendant both provided proof that they had medical marijuana prescriptions to the troopers before the troopers conducted the search. By that time, Pennsylvania had in fact legalized medical marijuana.

The troopers believed that medical marijuana could only be consumed through a vape pen which would not produce an odor, and so they searched the car anyway. In the car, they found marijuana and a gun. They arrested the defendant and charged him with possession as well as violations of the uniform firearms act.

The defendant moved to suppress the evidence. At the suppression hearing, he presented an expert witness who testified that medical marijuana smells the same as illegal marijuana and that green, leafy marijuana can be consumed legally by using a vaping pen. The pen would also produce an odor of marijuana. Accordingly, it would not be possible to tell from the odor alone whether the marijuana was legal or illegal. Because marijuana is now potentially legal in Pennsylvania and because the troopers had no other reason for searching the car, the trial court granted the motion to suppress. The court found that the troopers did not have probable cause for the search.

The Superior Court Appeal

The Commonwealth appealed to the Superior Court. The Superior Court agreed that the odor of marijuana alone does not always justify as search, but it found that the trial court should have considered it as a factor in terms of whether or not the search was supported by probable cause. The odor must be considered along with all of the other factual circumstances surrounding the search in order to determine whether the police had probable cause. Therefore, the Superior Court remanded the case with instructions for the trial court to reconsider its ruling and consider all of the factors. The defendant then appealed to the Pennsylvania Supreme Court, and the Court accepted the case.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court reinstated the trial court’s ruling. It found that the police did not have probable cause to search the car based on the odor of marijuana alone. The enactment of the medical marijuana act in Pennsylvania made it so that many people may legally possess marijuana, and there is often no way to tell whether someone possesses marijuana legally or illegally. As marijuana is no longer per se illegal in Pennsylvania, its odor no longer provides probable cause for a search of a vehicle pursuant to the “plain smell” doctrine. Like the Superior Court, the Supreme Court concluded that the odor of marijuana could be a factor in determining whether or not police have probable cause, but the odor alone is not enough. The Supreme Court also agreed with the trial court that the evidence should have been suppressed, so it reversed the Superior Court’s ruling to the extent that the Superior Court had directed the trial court to reconsider in light of its opinion. Accordingly, the evidence will be suppressed, and the Commonwealth will be unable to proceed with the case. It is now established law in Pennsylvania that the odor of marijuana alone does not provide the police with the probable cause necessary for a search.

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Zak Goldstein 12/20/21 Zak Goldstein 12/20/21

PA Superior Court: Defendant’s Consent to Search Invalid Due To Language Barrier Between Defendant and Officer

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carmenates, holding that a defendant’s consent to search his vehicle and luggage was not knowing, voluntary, or intentional because of the considerable language barrier between the defendant and the officer. This decision is significant because there are so many individuals in the United States who do not speak English. As such, this decision protects them and requires that the police show that they made a truly knowing, voluntary, and intelligent waiver of rights when they interact with a police officer in Pennsylvania.

Commonwealth v. Carmenates

The defendant was pulled over by police on Interstate 80 because, according to the police, he was following a tractor-trailer at an unsafe distance and at a speed slower than the flow of traffic. As the police officer approached the defendant’s vehicle, he noticed in the back seat several large duffel bags and a suitcase that was covered by a tan sheet and large stuffed toy bear. It should be noted that this entire interaction was recorded on the officer’s dashboard camera. The officer also observed numerous fast food and snack items, a fast-food drink items, air freshener spray bottles, and “religious paraphernalia” hanging from his rearview mirror. The officer did not observe any drugs or paraphernalia, nor did he smell any marijuana. Further, while interacting with the officer, the defendant did not make any furtive movements nor did he attempt to conceal anything.

When the officer attempted to speak with the defendant, the defendant immediately indicated that he only spoke Spanish. The officer did not speak Spanish, but told the defendant that they “could make it work.” To “make it work,” the officer used Google Translate on his cell phone to translate his statements from English to Spanish and the defendant’s statements from Spanish to English. The officer indicated that he did not have any problems understanding the responses he received from the defendant and the defendant never told the officer that he did not understand a question that was asked to him via Google Translate. The officer would later concede that Google Translate is “not 100 percent accurate at times.”

The defendant provided the officer with his driver’s license, insurance card, and registration card. After which, the officer requested that the defendant exited the vehicle. The defendant complied and the officer searched him for weapons. The officer then instructed the defendant to stand outside in the cold while he performed a criminal history check. The officer would later testify that he intended to issue a warning to the defendant, but before doing so asked him about his travel plans. A large portion of the defendant’s responses were not translated by Google Translate and some that were nonsensical. Despite this poor translation, the officer decided to continue using Google Translate to ask for the defendant’s consent to “see his luggage.” The officer could have used the Spanish-language consent form in his car and that would have been more specific, but for whatever reason he chose not use that form.

The defendant then opened his vehicle and retrieved the suitcase. However, the officer using gestures rather than words, directed the defendant to one of his black duffel bags. The defendant then grabbed the black duffel bag and complied with the officer’s non-verbal direction to open it. The bag contained a large amount of marijuana that was vacuum sealed in plastic bags. The defendant was subsequently placed in handcuffs and then the officer searched the remaining duffel bags and located approximately 39 pounds of marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver a Controlled Substance and Possession of Drug Paraphernalia.

The defendant then filed a motion to suppress. At the motion to suppress hearing, the above facts were placed into evidence. The testimony and video recording indicated that the officer never informed the defendant that he was free to leave or that he was allowed to refuse consent to search his vehicle or his personal effects. Additionally, the record also showed that the defendant was never read his Miranda rights. The defendant would also testify at this hearing, through a translator. In short, he stated that he just spoke a few words of English and that he understood the officer’s request to see his luggage in the literal sense. He also testified that he thought he had to follow the officer’s orders because “he didn’t think that he had the option to say no.” At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress, concluding that the Commonwealth had failed to establish that the defendant had voluntarily, knowingly, and intelligently consented to the search of his vehicle and luggage. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Panel Decision

The Pennsylvania Superior Court reversed the suppression court’s order granting the defendant’s motion to suppress. For a more detailed analysis, please refer to our September 8, 2020 blog “Pennsylvania Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn’t Speak English.” The defendant then filed for an Application for Re-argument En Banc. The Superior Court granted re-argument and withdrew the panel’s previous decision.

Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the suppression court’s order granting the defendant’s motion to suppress. The full panel of the Superior Court held that the defendant’s consent was not knowing, intelligent, and voluntary. The Superior Court was persuaded by the fact that Google Translate is “not 100 percent accurate at times” and that there was evidence that it produced inaccurate and nonsensical translations. Further, the officer’s use of the word “see” rather than a more precise term such as “search,” “examine,” or “look inside” was persuasive to the Superior Court that the defendant did not make a legally valid waiver of his constitutional rights. As such, the Commonwealth will not be able to use the recovered drugs and paraphernalia against him at his trial.