Philadelphia Criminal Defense Blog
PA Superior Court Allows Detention of Motorist Based on Nervousness, Travel to Philadelphia, and Criminal Record
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Galloway, holding that a state trooper did not unlawfully prolong a traffic stop because the defendant was acting nervous and also admitted that he had just left Philadelphia. This decision is extremely troubling because it suggests that people who travel to Philadelphia have fewer rights than those who do not, and the level of suspicion here was very low. It remains possible that the decision could be reversed in further proceedings.
Commonwealth v. Galloway
A Pennsylvania State Trooper was on highway patrol when he pulled over a black Honda Civic for traveling 64-mph in a 55-mph zone. The defendant was in the passenger seat. While the trooper was conducting the traffic stop, the dashcam video picked up a car in the left bound passing lane passing the trooper and the driver’s vehicles. Because of the location of the stop, the trooper approached the passenger side window of the vehicle so that he was not so close to the traffic.
As the trooper approached, he noticed that both the defendant and the driver were acting nervous. Specifically, the defendant was not making eye contact with him and was sweating profusely. The trooper thought it was suspicious that the defendant was sweating so much because it was very cold at the time. The trooper then told the driver why he pulled him over and asked for his information. He also asked the defendant for his identification, to which the defendant told him he did not have any on him. The defendant provided him with his information verbally, and when the trooper ran the defendant’s information, he learned that the defendant “had a lengthy criminal history involving drug dealing out of the state of Delaware.”
The trooper informed the driver that he would be letting him go with just a warning, but he did not return his driver’s license to him. The trooper then continued to question the defendant and the driver as to where they were driving from, what they were doing, and the reason why the defendant was sweating so much. Both the driver and the defendant told the trooper that they just left Philadelphia where they got cheesesteaks on South Street. The trooper would later testify that based on his experience, he knew that Philadelphia was a hub for narcotics distribution. As such, the trooper asked the defendant to step out of the car and when he did, the trooper noticed a marijuana bowl in the center console of the car. The trooper then conducted a vehicle search of the car and found 1,575 bags of heroin on the floor. Both the driver and the defendant were arrested and read their Miranda rights.
The defendant was subsequently charged with possession with intent to deliver a controlled substance (“PWID”), possession of a controlled substance, and possession of drug paraphernalia. The defendant then filed a pre-trial motion to suppress the contraband found in the vehicle because of “the prolonged nature of the detention was illegal in that it went well beyond the reason for the traffic stop itself...and was not supported by a reasonable suspicion.” In other words, the defendant argued that the trooper unlawfully extended the traffic stop. The trial court held a hearing, agreed with the defendant, and granted the defendant’s motion to suppress. The trial court held that the “[t]rooper…was not presented with sufficient particularized facts to constitute the reasonable suspicion required to continue detaining [the driver] and [the defendant] past the point of writing a speeding ticket or issuing a warning.” The Commonwealth then filed an interlocutory appeal.
The Pennsylvania Superior Court’s Decision
The Pennsylvania Superior Court reversed the trial court’s suppression order. The Superior Court found that, when viewing the totality of the circumstances, that the trooper “possessed the requisite reasonable suspicion to extend the traffic stop to investigate his concerns that [the defendant] and the driver were engaged in criminal activity.” According to the Superior Court, the trooper had reasonable suspicion to prolong the stop because: the defendant traveled to Philadelphia, Philadelphia has a reputation for narcotics sales, the defendant was acting nervous, and his prior criminal history. Therefore, the trial court’s suppression order is reversed and the Commonwealth will be able to use the drugs and paraphernalia against the defendant at his trial.
Clearly, the evidence supporting the stop in this case was thin. It is not criminal to travel to Philadelphia, and it is not unusual to be nervous when dealing with the police even if you have not done anything wrong. The Court seems to have heavily emphasized the defendant’s excessive nervousness and criminal history, but as the defendant was not on probation or parole, the criminal history should not have resulted in any lesser rights against a search or seizure. This case also fails to follow other recent cases in which the Superior Court has unequivocally held that nervousness alone is not enough to justify a search of a vehicle. Under current law, however, the troopers would have needed to obtain a search warrant prior to conducting the search. That was not the state of the law at the time of the motion, however, so the defendant failed to raise that issue. Accordingly, the Court upheld the validity of the search and remanded the case for trial.
Facing Criminal Charges? We Can Help.
Criminal Defense Lawyer Zak T. Goldstein, Esquire
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.
3rd Circuit Court of Appeals: Gun Enhancement for Drug Trafficking Offenses Could Apply at Sentencing Even if Gun Nowhere Near Drugs
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Third Circuit Court of Appeals has decided the case of United States v. Denmark, holding that the two-level enhancement for possession of a dangerous weapon during a drug trafficking offense applied even though the defendant conducted the drug deal over FaceTime and did not possess guns when he delivered the drugs. This case provides almost no rational limit on when the enhancement can apply and allows a court to consider applying it even when the gun has almost nothing to do with the drugs.
U.S. v. Denmark
Pennsylvania police intercepted a suspicious package that had been shipped from California to York, Pennsylvania. The package contained five pounds of methamphetamine. Police later determined that the defendant shipped the package. A few months later, law enforcement recorded a FaceTime call with the defendant. During the call, the defendant confirmed his involvement with the shipment. The caller ordered an additional three pounds of meth from the defendant who was to ship the drugs to York, Pennsylvania. The defendant then went to the post-office to deliver the drugs. While he was making his delivery, he was not in possession of any firearms. When the package arrived, the caller confirmed its delivery via phone. The meth was in a heat-sealed bag, which was wrapped in several layers of shrink wrap.
Approximately a month later, police carried out a search warrant for the defendant’s residence. The police confirmed that the defendant had made the aforementioned call in that location, as the residence matched his background during the call. Police did not recovery any drugs, but they did find stashes of firearms and drug paraphernalia in various parts of the house. Specifically, the police found a semi-automatic assault rifle, a shotgun, two handguns, a heat-sealed plastic bag, shrink wrap, and a bullet-proof vest. The police also found several loaded and unloaded magazines for the handguns and the assault rifle and over 900 rounds of ammunition.
The defendant was subsequently arrested, and a grand jury indicted him on two counts of distribution and possession with intent to distribute at least 500 grams of meth. The defendant agreed to plead guilty to one of the counts in exchange for dismissal of the other count and a three-level reduction for acceptance of responsibility. At sentencing, the Probation Department calculated the defendant’s offense level at 35, which gave the defendant a Guidelines imprisonment range of 168 to 210 months and a mandatory minimum of 10 years. The calculation included a two-level enhancement for possession of a dangerous weapon.
During his sentencing, the defendant objected to the weapons enhancement, arguing that the firearms could not have been connected with his conviction because the meth had never been at his residence. The District Court rejected this argument and applied the two-level enhancement which resulted in the defendant’s guidelines being 168 to 210 months. The Court varied downward, based in part of his previous charitable service and family responsibilities. The Court sentenced the defendant to 135 months’ imprisonment. The defendant then filed a timely appeal. On appeal, the defendant argued that for the weapons enhancement to apply, the guns had to be “actually present at the crime.” Specifically, the defendant argued that the guns had to be physically near him while he transported the meth to the post office.
How is U.S.S.G § 2D.1(b)(1) Applied?
Section 2D.1(b)(1) provides that, in connection for unlawful manufacturing, importing, exporting, or trafficking of drugs “if a dangerous weapon (including a firearm) was possessed,” then a defendant’s offense level is increased by 2 levels. The sentencing commission created the enhancement because there could be an increased danger of violence when drug traffickers possess weapons. The enhancement is to be applied if there was a weapon present, unless it is clearly improbable that the weapon was connected with the offense.
In order for this enhancement to be applied, the Government must first prove by a preponderance of the evidence that a defendant possessed a dangerous weapon. The burden then shifts to the defendant “to demonstrate that the connection between the weapon and the drug offense was clearly improbable” or, in other words, that there was a lack of connection between the firearm and the drug offense. As a practical matter, the enhancement is usually applied if a firearm was present.
The Third Circuit’s Decision
The Third Circuit Court of Appeals denied the defendant’s appeal, though it stated that this case “was so tenuous as to place it on the outer edge of the sentencing enhancement.” The Third Circuit held that a firearm does not have to be physically close to drugs or drug paraphernalia for the sentencing enhancement to apply. Instead, the Government only needs to show that there is “a connection” between the guns and the drug trafficking offense.
In the instant case, law enforcement observed the defendant make a drug deal over FaceTime from his home. According to the Third Circuit, because the defendant agreed to sell meth via FaceTime in the same home where the guns were found, the guns were connected to his drug offense. The burden then shifted to the defendant to show that the connection between the drugs and the guns were “clearly improbable.” In making its decision as to whether it was “clearly improbable,” courts consider four factors: 1) the type of gun involved, 2) whether the gun was loaded, 3) whether the gun was stored near the drugs or drug paraphernalia, and 4) whether it was accessible.
The Third Circuit found that the defendant’s guns suggested they were connected to his drug activities. Additionally, the guns were loaded and they were accessible to the defendant. As such, the Third Circuit found that the connection between the guns and the defendant’s drug offense was not “clearly improbable” and therefore his appeal is denied and he will be forced to serve his sentence.
Facing Criminal Charges? We Can Help.
Goldstein Mehta LLC Criminal 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.
Can you get your money back if the police take it illegally in Pennsylvania?
Return of Property Petitions in Pennsylvania
Criminal Defense Lawyer Zak Goldstein
Following a recent ruling of the Pennsylvania Commonwealth Court, it is now clear that people who have had their money or other items seized by police officers who did not have probable cause may file a motion to suppress in the Court of Common Pleas and ask that a Common Pleas Judge order the police to return the property. This is called filing a return of property petition. Previously, it was clear that if the police filed criminal charges in conjunction with taking the property, then the defendant could file a motion to suppress and would be entitled to a return of the property if the motion to success was successful in the criminal case. It was unclear, however, what remedy existed for a person who has had his or her cash taken by the police but where the police have not filed charges or an actual forfeiture action.
The Commonwealth Court has now clearly ruled that a person who has had property stolen by the police may file a return of property petition in the Court of Common Pleas and move to suppress the evidence if the police did not have probable cause to take the property or engage in the search that led to the forfeiture. If the judge finds that the police acted illegally, then the Commonwealth must return the money or other property. This rule obviously does not apply to pure contraband like drugs or illegal guns. The Commonwealth Court reached this conclusion in the case of In Re: $300,000 U.S. Currency.
What is a Return of Property Petition?
In Pennsylvania, a Return of Property Petition may be filed when law enforcement officers have seized money or other valuable personal property like cars and watches on the suspicion that the property may be related to criminal activity. If the police do not file criminal charges or a defendant wins a related criminal case, then the return of property petition allows the defendant to ask a judge to order that the property be returned. Return of property litigation is very similar to a forfeiture action. In a forfeiture action, the government moves for a court order directing that it be allowed to keep seized property because the property was obtained through some illegal means. Forfeiture actions often accompany criminal charges. For example, if police officers find a large quantity of money while conducting a search that results in the discovery of drugs, the police will likely keep the money. Prosecutors should then file a forfeiture action if they do not plan to return the money. In many cases, however, the government does not necessarily file the separate forfeiture case. The forfeiture order could come along with a criminal sentence, or the government may simply keep the money.
If there is no criminal conviction, however, or the money is really unrelated to the conviction, then the person who had the money taken by the police can file to have that money returned. Prior to the Commonwealth Court’s recent decision, it was clear that a defendant in a forfeiture action or criminal case could file a motion to suppress and challenge the procedures by which the police recovered the property. If the police acted illegally, then the property should be returned. It was unclear whether a motion to suppress could be filed in a return of property case where the defendant initiated the litigation and the government never filed criminal charges or a forfeiture action.
Rule 588
Rule 588. Motion for Return of Property.
(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.
In Re: $300,000
An individual was stopped in Union County, Pennsylvania by a Pennsylvania State Police Trooper while he was driving his vehicle. During the search, the Trooper found $300,000 and seized the money. Despite this seizure, the individual was not charged with any crimes. Approximately a month after he was stopped and had his money taken from him, the individual brought a stand-alone return of property action in Union County Court of Common Pleas seeking the return of his property. A few weeks after this filing, the individual then filed a motion to suppress, seeking suppression of the property found in his car and all statements that were made to the police.
The Commonwealth opposed the Individual’s motion to suppress. The government argued that the individual could not bring a stand-alone motion to suppress in a return of property action prior to the Commonwealth filing criminal charges or initiating a forfeiture action. The trial court denied the individual’s motion to suppress arguing that a motion to suppress was “premature.”
The individual then filed a Petition for Permission to Appeal with the Commonwealth Court. In his petition, he asked for the Commonwealth Court to decide whether an individual aggrieved by the seizure of property could file a motion to suppress in conjunction with a motion to return property when the Commonwealth has not filed a forfeiture petition and no criminal charges have been filed. The Commonwealth Court agreed to hear his appeal. It should be noted that approximately six months after the trial court denied his motion to suppress, the Commonwealth filed a forfeiture petition against the individual. Consequently, the Commonwealth argued that the individual’s appeal was now moot because he now had the ability to file a motion to suppress evidence. In response, the individual argued that it was not moot because the Commonwealth could just “sit” on evidence it seizes “until the Commonwealth decides to provide an opportunity to the aggrieved individual to suppress the evidence.”
The Commonwealth Court’s Decision
The Commonwealth Court reversed the trial court’s decision. Regarding the Commonwealth’s argument that the individual’s appeal was moot, the Commonwealth Court found that this issue was capable of repetition, yet likely to evade appellate review. Further, this issue involved an issue important to the public interest and consequently the Commonwealth Court declined to deny the individual’s appeal because of mootness.
Turning to the merits of his appeal, the Commonwealth Court held that an individual can file a motion to suppress regardless of whether or not the Commonwealth has filed criminal charges or a forfeiture action. In making its decision, the Commonwealth Court first emphasized that though forfeiture hearings are “civil in form,” they are also “in their nature criminal.” As such, even though an individual is not entitled to all the rights that criminal defendants receive, they do have some rights. One of those rights is that they are entitled to the exclusionary rule of the Fourteenth Amendment and therefore individuals can file motions to suppress when their property has been unlawfully seized by the government. The United States Supreme Court has also weighed in on this issue and has held that “the Commonwealth may not permanently acquire derivative contraband which it has initially seized unconstitutionally.”
The Commonwealth Court then analyzed the relevant statutes at issue. Specifically, it looked at Rules 581and 588 of the Pennsylvania Rules of Criminal Procedure. In its analysis of these rules it found that motions to suppress were intended to be used by individuals to reclaim their property. Further, the Commonwealth Court also held that a person does not have to be a criminal defendant to initiate the proceedings. Instead, the Commonwealth Court found that it was the intent of the Pennsylvania General Assembly to allow any person who has had their property unlawfully seized be allowed to file a motion to suppress to regain their property. The reason is because if an individual was forced to wait until a criminal complaint or forfeiture petition was filed then the Commonwealth could hold someone’s unconstitutionally seized evidence in perpetuity. This was not acceptable to the Commonwealth Court and therefore it held that, in the future, individuals can file motions to suppress in conjunction with their motions to return property, regardless if a criminal proceeding or a forfeiture action has been initiated against them.
Facing Criminal Charges? We Can Help.
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.
PA Superior Court: Nervousness and Fidgeting by Driver Do Not Justify Search of Car
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Mattis, holding that police cannot search a car during a routine traffic stop solely because the driver exhibited “extraordinary” nervousness and fidgeting. This case continues a recent trend of Pennsylvania appellate courts upholding the privacy rights of the Commonwealth’s citizens and seeking to rein in pretextual searches of people and automobiles, especially in marijuana cases.
The Facts of the Case
The defendant was charged with possession of marijuana, possession of drug paraphernalia, and speeding in Fayette County, Pennsylvania. He moved to suppress the evidence, alleging that police had stopped him illegally and searched his car without probable cause or reasonable suspicion. The trial court held a hearing on the motion to suppress. In order to defend the legality of the search, the Commonwealth relied on the affidavit of probable cause for the defendant’s arrest and called the arresting State Trooper to testify.
The affidavit of probable cause indicated that a Pennsylvania State Police Trooper pulled the defendant over for driving 76 mph in a 55 mph zone. The defendant pulled over on command, and the trooper approached the vehicle. He obtained the defendant’s license and paperwork, but he noticed that the defendant was “extraordinarily nervous and fidgeting constantly.” He asked the defendant to get out of the vehicle. The defendant did so, and the Trooper asked for permission to search the car. The defendant gave him permission to search the car. Another Trooper was on scene and assisted with the stop. Police found marijuana, a pipe, and a grinder in the car. Fayette County apparently still prosecutes people for marijuana offenses.
The Motion to Suppress
The defendant filed a motion to suppress. He argued that the Trooper did not have the reasonable suspicion necessary to prolong the stop beyond the initial purpose of investigating the speeding offense and that some nervousness and fidgeting did not justify any further investigation.
The Superior Court agreed. The Court recognized that police may stop a vehicle for a traffic infraction as the Trooper did here. However, once the purpose of the initial, valid, traffic stop has ended and a reasonable person would have believed he was free to leave, a second round of questioning with some official restriction on a person’s freedom of movement requires reasonable suspicion of some other crime for it to be justified. As a general rule, police may order the occupants of a vehicle to exit that vehicle for safety reasons during a legitimate traffic stop. But police may not extend the stop longer than necessary, and nervousness alone does not justify reasonable suspicion for an investigative detention or prolonging a stop.
Here, the Trooper testified that he made contact with the defendant and the defendant was nervous and fidgeting around in the vehicle. He confirmed that the defendant did not have any warrants and that he had valid paperwork for the car.
But without any additional reason, he then ordered the defendant to exit the vehicle. Most importantly, the Trooper retained possession of the defendant’s paperwork. The defendant was not free to leave because he obviously could not leave without his driver’s license. The Trooper, while still in possession of the documents, asked the defendant if he could search the car. The defendant granted permission.
The Court suppressed the resulting evidence because it found that the Trooper had improperly extended the stop. Although the Trooper had the right to ask the defendant to exit the vehicle as a general rule, he did so because of the defendant’s nervousness and not because of anything related to the speeding investigation. Because he held onto the paperwork, the defendant was not free to leave. Therefore, the Trooper did not have reasonable suspicion to extend the stop, and the Court ruled that the evidence should be suppressed because the consent given was not constitutionally valid.
The Superior Court vacated the conviction and remanded for a new trial without the illeglaly seized evidence. The Commonwealth will likely have to withdraw the charges.
Need a criminal defense lawyer? We can help.
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.