Philadelphia Criminal Defense Blog

Zak Goldstein 3/16/24 Zak Goldstein 3/16/24

PA Superior Court: Police May Drive Defendant’s Car to Secure Location While They Get Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Floyd, granting the Commonwealth’s appeal and holding that the trial court erred in granting a motion to suppress drugs and guns where a Philadelphia police officer testified that he saw the defendant engage in two hand-to-hand transactions. The Court also held that the officers did not violate the defendant’s rights by driving the defendant’s car to a secure location to await the signing of a search warrant.

The trial court had granted the motion to suppress, finding that the police should not have driven the car themselves before they got the warrant and that the two alleged hand-to-hands did not provide probable cause to arrest the defendant and search the car. The Superior Court disagreed. The crux of the appeal was the admissibility of evidence seized from Floyd's vehicle following his arrest for alleged involvement in illegal narcotics transactions.

A member of the Philadelphia Police Department’s Narcotics Strike Force observed the defendant engage in suspicious transactions on September 9, 2021. The defendant was seen accepting money from two individuals and then handing them small objects. He went in and out of the car in question before each alleged transaction. One of the alleged buyers was not stopped, so the police could not confirm whether that person had purchased drugs. The second person, however, was stopped and searched by police, and she had containers of crack cocaine on her.

Based on these observations, the police arrested and searched the defendant. They also obtained a search warrant for his vehicle. Instead of having a tow truck move the car, one of the officers drove the vehicle to a secure location while they obtained the search warrant. They claimed that they did not actually search the vehicle en route to that location or before they got the warrant. The eventual search of the car resulted in the discovery of drugs and a gun with an obliterated serial number.

The defense challenged the seizure and subsequent search of Floyd's vehicle, filing a motion to suppress and arguing that the police's initial warrantless entry into the vehicle, to move it to a secure location pending the approval of a search warrant, violated the defendant’s constitutional rights. The trial court agreed and suppressed the evidence obtained from the car.

On appeal, the Superior Court held that the police action was justified under statutory authority, which allows for the seizure and relocation of a vehicle under certain conditions, such as when the vehicle's owner or user is in police custody, the vehicle is on public property, and there is probable cause to believe the vehicle contains evidence of a crime. The court found that the evidence had an independent source—the observations made by Officer Outterbridge prior to the vehicle's relocation—which validated the search warrant and the subsequent discovery of the narcotics and firearm.

The statute that allows the police to move a car under certain conditions is 75 Pa.C.S. § 3352(c), specifically subsection (c)(3). This provision is part of the Pennsylvania Vehicle Code and grants police officers the authority to remove or cause to be removed a vehicle to a place of safety or to the place of business of the operator of a wrecker or a nearby garage under the following circumstances:

The vehicle has been reported stolen or taken without the consent of its owner.
The person or persons in charge of the vehicle are physically unable to provide for its custody or removal.
The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.
The vehicle is in violation of section 3353 (relating to prohibitions in specified places), except for overtime parking.
The vehicle has been abandoned, as defined in the title.

In this case, subsection (c)(3) was particularly relevant. This subsection applies when the person in control of the vehicle is arrested for an offense requiring that they be brought before an issuing authority without unnecessary delay. The statute gives police the authority to remove the vehicle to ensure its safety and the integrity of potential evidence, especially when the vehicle is on public property and there exists probable cause to believe it contains evidence of a crime.

Here, the Superior Court reasoned that the courts have held for about 15 years that one observation of a hand-to-hand transaction in a designated enforcement area or high crime area provides experienced narcotics officers with probable cause to stop a suspect and search them. In this case, the officer testified to seeing two hand-to-hand transactions. The first person had not been stopped, and the second person testified at the suppression hearing that she in fact had drugs on her but did not buy them from the defendant. Unfortunately, she did not testify that she did not in fact give anything to receive anything to or from the defendant. She just said she did not get the drugs from him. And the police testified that the defendant went in and out of the car before both alleged transactions. Thus, the Superior Court found probable cause to arrest the defendant and search him as well as to support the search warrant for the car. Based on the above statute, the police then had the right to move the car. Although it is better for them to use a tow truck to move the car, the statute does not explicitly direct that the police may not move it themselves.

This case presents two problems for the defense.

The Takeaway

First, this was really a credibility motion to suppress. The defense strategy was clearly to argue that the officer had not actually seen two drug transactions given that the defense called a witness, one of the alleged buyers, to say that she did not actually buy drugs from the officer. The trial judge, however, did not explicitly say that they were ruling based on credibility. If the trial judge had put a credibility ruling on the record and indicated that they did not believe the officer’s testimony, then it would have been virtually impossible for the Commonwealth to appeal. The judge, however, did not do that.

Second, the defense witness was not asked whether or not she gave anything to the defendant or took anything from him. This allowed the Superior Court to reason on appeal that she may have had an interactions with the defendant that looked like a drug transaction even if her testimony that she did not buy drugs from him was true. Probable cause looks at what a reasonable officer would believe in terms of whether they would find evidence or believe they had observed a crime – it does not require proof beyond a reasonable doubt that a crime actually occurred. Therefore, the Superior Court was able to grant the Commonwealth’s appeal. This ruling therefore highlights the importance of really arguing credibility and asking for a clear ruling on that issue if the basis of the motion is credibility and also making sure that the witnesses are asked the right questions during the hearing.

Finally, the case allows police behavior which is ripe for abuse. It is difficult to believe that narcotics officers, who typically do not wear body cameras in Philadelphia, would not at least look around the car a little bit while driving it to the station, and the next case will probably involve some claim by police that they had to do an inspection to make sure there was nothing that could harm the officer during the drive. The law is clear that police must get a warrant before searching a car absent a limited number of exceptions which did not apply here, but here, the officer drove the defendant’s car before the police got the warrant. To really comply with the rules, they should have had a tow truck tow the car. Hopefully, the defendant will pursue further appeals on this issue.

Facing criminal charges or appealing a criminal case? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

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Zak Goldstein 3/12/24 Zak Goldstein 3/12/24

Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

Facing criminal charges or appealing a criminal case? We can help.

Zak Goldstein 3/6/24 Zak Goldstein 3/6/24

Attorney Goldstein Wins Motion to Suppress Firearm in Philadelphia

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to suppress a firearm in the case of Commonwealth v. R.M.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In R.M., three police officers were patrolling Northwest Philadelphia in plainclothes and an unmarked car. They claimed that they saw the defendant driving a car with illegal window tint on all of the windows, so they pulled the car over. When the police approached the car, the defendant was cooperative with them and provided them with all of the paperwork for the vehicle. Nonetheless, one of the officers testified that he could immediately observe the magazine of a gun sticking out from underneath the mat underneath the driver’s feet. The officer asked the defendant if there were any guns or drugs in the car, and when the defendant denied having a gun in the car, the officers pulled him out of the car and searched it. The officers claimed that they only frisked the area around the driver’s seat for officer safety because they could see the magazine and the defendant had denied having a gun in the car. Of course, they did recover a gun and an extended magazine. They claimed to have recovered it from underneath the floor mat. The police arrested R.M., and prosecutors charged him with violations of the uniform firearms act (VUFA) under sections § 6105, § 6106, and § 6108. VUFA § 6105 is a particularly serious charge as it is typically graded as a first-degree felony.

R.M. retained Attorney Goldstein. Following the preliminary hearing, Attorney Goldstein filed a motion to suppress the firearm. Attorney Goldstein argued that police had illegally pulled R.M. over for no real reason and searched the car based on a hunch rather than any actual observation of a magazine or gun.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress. Attorney Goldstein cross-examined the arresting officer extensively on the fact that the officer had not been wearing a body camera even though most Philadelphia Police officers now wear body cameras, the officers failed to comply with virtually all of the police directives governing the behavior of plainclothes officers, the fact that the officers would not have even able to write a ticket for the window tint because they did not have a computer in their car and would have needed uniformed officers to come to the scene, and the absurdity of the story that the gun just happened to be sticking out in plain view.

Attorney Goldstein also called the vehicle’s passenger as a witness. She testified that the police had pulled the car over shortly after she and the driver left a gas station, immediately removed them from the vehicle, and searched the car extensively before finding the gun. She denied that it could have been in plain view.

As the police had not actually seen R.M. do anything illegal and the gun was likely not actually in plain view prior to the search, the trial court found the officers not credible and granted the motion to suppress the gun. Credibility rulings generally cannot be appealed, so the Commonwealth then withdrew the charges. R.M. will be eligible to have them expunged.

The Plain View Exception

Notably, whether the police can search a car without a search warrant if they see contraband in plain view is still debatable. In this case, the officers claimed that they could see the magazine of the gun in plain view. A magazine on its own is not illegal, and having one in a car does not give the police probable cause or reasonable suspicion to search or frisk the car with or without a warrant, but the presence of the magazine along with the defendant’s alleged denial that he had a gun in the car likely would have given the police the ability to search the car. A false denial would tend to suggest that the defendant actually had a gun but was not allowed to have it. The Superior Court has found that the police may conduct a warrantless search of a vehicle when they see contraband in plain view, but the Pennsylvania Supreme Court has granted review in that case and may reach a different conclusion. Either way, the trial judge found that the plain view exception did not apply in this case because the officers were not credible.

This case highlights the importance of retaining an attorney who will conduct a thorough investigation, who will locate and prepare witnesses to testify credibly for the defense, who will be familiar with the case law and police directives in order to show that the police either did not follow required procedures or the law during a search, and who can effectively cross-examine officers and other witnesses to challenge their credibility at motions and trial.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Defense Attorney 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. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 2/19/24 Zak Goldstein 2/19/24

PA Superior Court Explains When Ineffective Assistance Claims May Be Raised on Direct Appeal

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Watson, dismissing the defendant’s appeal because the defendant improperly tried to raise ineffective assistance of counsel claims prematurely through post-sentence motions and on appeal rather than by filing a Post-Conviction Relief Act Petition. The Superior Court held that the trial court abused its discretion in allowing the defendant’s claims of ineffective assistance of counsel to be reviewed in post-sentence motions rather than in a PCRA petition.

The Facts of Watson

The defendant appealed to the Pennsylvania Superior Court after he was convicted by a jury of rape and other related sex crimes. The conviction stemmed from the alleged sexual abuse of the defendant’s stepdaughter. She said that the abuse started when she was eleven and ended when she was seventeen. Prior to sentencing, the defendant retained new counsel, and trial counsel withdrew his appearance. The trial court sentenced the defendant to 27-60 years in prison and found the defendant to be a sexually violent predator.

The defendant’s new attorney filed a post-sentence motion and eventually an amended post-sentence motion. The motion raised claims of ineffective assistance of trial counsel, which usually need to be deferred until after a direct appeal has concluded. The amended post-sentence motion concluded with the statement, “[Defendant] has been advised that in raising ineffectiveness now, he waives the right to raising [sic] issues of merit on direct appeal.”

The trial court held an evidentiary hearing on the defendant’s motion. At the hearing, the Court did not really address whether it was appropriate to hear ineffective assistance claims in the post-sentence motions rather than defer any such claims until after the direct appeal had concluded. Instead, new counsel immediately called the defendant to the stand and asked the following preliminary questions:

[Defense Counsel]: [Defendant], before we go any further, I’ve advised you that in your [amended] post[-]sentence motion that you’re raising ineffectiveness of counsel, correct?
[Defendant]: Yes.
[Defense Counsel]: And I’ve advised you that raising it in your [amended] post[-]sentence motion means that the Superior Court of Pennsylvania will not, you’re not going to be raising questions of merit. Do you remember that?
[Defendant]: Yes.
[Defense Counsel]: Okay. And I’ve advised you that you have to make a choice of doing one or the other and you chose to raise ineffectiveness of counsel, correct?
[Defendant]: Yes.
[Defense Counsel]: Okay. And nobody’s forced you. You’re making this decision voluntarily, correct?
[Defendant]: Yes.

The trial court denied the amended post-sentence motion, and the defendant appealed to the Pennsylvania Superior Court. All of the issues that the defendant raised in the Superior Court related to the allegations that he received the ineffective assistance of counsel which he had asserted in his post-sentence motions. The Superior Court began by addressing whether it was appropriate for the Court to deal with claims relating to the ineffective assistance of counsel on direct appeal instead of in a PCRA petition. The Court also addressed the related claim of whether it was proper for the trial court to hear the ineffective assistance claims in a post-sentence motion rather than a PCRA.

The Superior Court’s Decision

The Superior Court provided a helpful summary of when PCRA/ineffective assistance of counsel claims should normally be raised. In general, PCRA claims such as claims that the lawyer provided the ineffective assistance of counsel should not be raised until PCRA proceedings, and a PCRA petition must be filed either after the direct appeal has concluded or instead of a direct appeal. Trial courts usually should not entertain claims of ineffectiveness in post-sentence motions, and therefore, those claims should not ordinarily be raised on direct appeal. There are exceptions to this rule, however. A defendant may raise an ineffective assistance of counsel claim right away in the following scenarios:

(1) an extraordinary case where the trial court, in its discretion, determines that a claim of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted; or

(2) when the defendant raises multiple, and comprehensive, ineffectiveness claims, which the court, and for good cause shown, determines that post-verdict review is warranted, and the defendant waives his right to PCRA review; or

(3) if the defendant is statutorily precluded from obtaining subsequent PCRA review, the trial courts must address claims challenging trial counsel’s performance.

The first exception is for claims that are so strong and so obviously likely to be granted that it would be an injustice to defer them until PCRA review. The second exception typically applies to a defendant who receives a short sentence or no sentence. The PCRA requires that a defendant still be in custody or under probation supervision in order for the court to have jurisdiction, so a defendant who receives a short sentence typically will not be able to file an appeal and then litigate a PCRA petition because the sentence will have expired.

Here, the Court found that none of the exceptions applied.

With respect to the first exception for extraordinary claims, the Court found that because the trial court needed to schedule an evidentiary hearing to determine the merits of the claim, the claim was not apparent from the record. In other words, if the claim were so strong and so obvious that it should be resolved immediately, then it would not have been necessary for the trial court to hold a hearing. The court would have been able to just grant it from the record.

In addressing the second exception, the Court ruled that the defendant failed to argue that he had good cause for raising his ineffective assistance of counsel claims in a post-sentence motion, and the trial court did not make a finding of good cause for him to do so. Most importantly, the Superior Court found the defendant did not make a knowing waiver of his right to PCRA review. The Superior Court opined that the defendant’s attempted waiver of his right to file PCRA claims was based on new counsel’s misinterpretation of the relevant case law. Instead of asking if the defendant agreed to waive the right to litigate a PCRA after the conclusion of the direct appeal, the new attorney asked the defendant if he agreed to waive the right to raise normal appellate issues of trial court error. In order for the colloquy to be correct, the lawyer would have to ask the defendant if he agreed to waive his PCRA rights, not his direct appeal rights. It is possible to raise both ineffective assistance of claims and regular direct appeal claims in cases where the waiver is executed properly or in cases where the first exception for extraordinary claims applies. The Court did not address the third exception as the defendant was not statutorily precluded from obtaining subsequent PCRA review.

Ultimately, the Superior Court concluded that the trial court abused its discretion in allowing the defendant to address his premature ineffective assistance of counsel claims in the post-sentence motions. The Court therefore dismissed the appeal without prejudice for the defendant to file a timely PCRA petition and raise those claims. Procedurally, the Court probably should not have actually dismissed the appeal. The appeal was properly filed, it just raised claims that were not cognizable at this stage. Therefore, the Court should have simply affirmed. This wording, however, will likely not make a significant difference for the defendant as he will still be able to raise his claims by filing a PCRA petition. Either way, it is important to understand these exceptions and make sure you retain a lawyer who understands them if you want to raise a claim of ineffective assistance of counsel before filing a direct appeal. In most cases, it makes sense to do the direct appeal and then litigate a PCRA petition, but in some cases, the PCRA claims are so strong or the sentence is short enough that it makes sense to claim that trial counsel was ineffective right away.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys

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. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.