CRIMINAL PROCEDURE

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

ACQUITTAL

 

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

ARREST

 

The Court in Commonwealth v. Pontius, 578 A.2d 1 (Pa. Super. 1990), recognized the difference between the issue of lawful hire as compared to a claim of unauthorized arrest. Commonwealth v. Charlton, 63 Som.L.J. 432 (2008)(Cascio, P.J.)

 

An unlawfully hired police officer acting under color of law has no greater power to arrest than a lawfully hired police officer.  A defendant may challenge the legality of his arrest on the ground that anyone occupying the position of the arresting officer, whether properly or improperly employed, would not have authority to conduct the arrest.  This would be the case if, for example, a police officer conducted an arrest outside her primary jurisdiction in violation of section 8953 of the Municipal Police Jurisdiction Act. Commonwealth v. Charlton, 63 Som.L.J. 432 (2008)(Cascio, P.J.)

 

DELAY – PRE ARREST

 

Because the Commonwealth did not respond to the juvenile's argument that adult constitutional pre-arrest delay principles should apply also to juvenile proceedings, the court assumes, but does not specifically decide, that constitutional pre-arrest delay principles apply also to juvenile delinquency proceedings.  In the Interest of D.C. 58 Som.L.J. 409 (2001) (P.J. Fike) 

 

In adult criminal proceedings, pre-arrest delay principles have been expressed as follows: A pre-arrest delay does not violate fundamental conceptions of justice except where (1) the delay causes actual and substantial prejudice to the defendant and (2) government has intentionally delayed prosecution solely to gain a tactical advantage over the defendant.  In the Interest of D.C. 58 Som.L.J. 409 (2001) (P.J. Fike) 

 

Because the juvenile testified only to a general lack of recollection of his whereabouts on the day of the incident, the juvenile has not shown the substantial prejudice required to satisfy the first prong of the test.  In the Interest of D.C. 58 Som.L.J. 409 (2001) (P.J. Fike)

 

DOUBLE JEOPARDY

 

Where a jury is unable to reach a decision, the Commonwealth may re-prosecute without violating the Double Jeopardy rule.  Commonwealth v. Davis, 51 Som.L.J. 73 

 

The rule that bars prosecution of a crime where an element amounts to another crime for which the Defendant was acquitted does not extend to physical evidence.  Commonwealth v. Davis, 51 Som.L.J. 73 

 

The jurisdictional exception to the Double Jeopardy clause applies where no single court has jurisdiction over all the alleged crimes, such as where a juvenile is charged with summary offenses and misdemeanor or felony offenses.  Commonwealth v. Hetrick, 51 Som.L.J. 224 

 

The rule that forbids a defendant from being prosecuted for the same provision based on the same facts as a former prosecution does not apply where the two crimes are not the same offense, or where the jurisdictional exception would apply.  Commonwealth v. Hetrick, 51 Som.L.J. 224 

 

The rule that forbids a defendant from being prosecuted for the violation of a different statutory provision based on the same conduct or arising from the same criminal episode does not apply where the jurisdictional exception applies.  Commonwealth v. Hetrick, 51 Som.L.J. 224 

 

Double Jeopardy will apply where the offenses are the same, where the two charges arose from the same criminal conduct and were based on the same facts.  18 Pa.C.S.A. § 109 and Commonwealth v. Groft, 51 Som.L.J. 327 

 

A second conviction for Defiant Trespass does not violate Double Jeopardy where it is for acts that had not yet consummated when the first trial began.  Commonwealth v. Groft, 51 Som.L.J. 327 

 

When previous similar charges are dismissed by order of nol pros, defendant cannot argue that he will be placed twice in jeopardy; he was not in jeopardy on previous charges.  Commonwealth v. Rice, 52 Som.L.J. 80 

 

The dual sovereignty doctrine compels the conclusion that successive prosecution by two states for the same conduct is not barred by the Double Jeopardy Clause.  Ogline v. Commonwealth of Pennsylvania, 58 Som.L.J. 188 (2000) (J.Gibson). 

 

In order to find that the additional sanction imposed on appellees by Pennsylvania authorities violated statutory double jeopardy under 18 Pa.C.S. § 111, the court would have to find that the sanction was imposed pursuant to subsequent prosecutions in Pennsylvania for violations based on the same conduct as former prosecutions in other states.  Ogline v. Commonwealth of  Pennsylvania, 58 Som.L.J. 188 (2000) (J.Gibson).

 

EXCLUSIONARY RULE

 

Because the exclusionary rule is designed “to prevent, not to repair” and is aimed at “official misconduct,” it would be a wholly improper extension to apply it as a remedy for private conduct. Commonwealth v. John Rugg, 64 Som.L.J. 7 (2008) (Cascio, P.J.).

 

IDENTIFICATION OF DEFENDANT

 

Suppression of identification evidence is required where the totality of the circumstances indicates that identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of a mistaken identification.  Commonwealth v. Lassinger (No. 1), 51 Som.L.J. 340 

 

The demonstrative photographic lineup of trucks is subject to suppression on the basis that it was so impermissibly suggestive as to give rise to a very substantial likelihood of a mistaken identification where the identification of a truck would be synonymous with the identification of the defendant.  Commonwealth v. Lassinger (No. 2), 51 Som.L.J. 356 

 

Under Pennsylvania law, when reviewing claims of unduly suggestive identifications resulting from police procedures that are generally permissible, the court must determine whether the identification procedure was so suggestive that it caused irreparable mistaken identity so as to deny the accused due process.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson).  

 

The problem with impermissible suggestive identification is the potential for misidentification, which would result in a due process violation if the identification was admitted at trial.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

Following arrest, an accused has a right to have counsel present when his picture is presented to a potential witness for the purpose of obtaining an identification.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

Suggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

As such, the Commonwealth must establish that the identification of the defendant resulted from the criminal act and not the suggestive encounter.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

Where there has been a suggestive encounter or incident, an in-court identification of a defendant as the perpetrator of the crime will only be permitted if the prosecution establishes by clear and convincing evidence at a suppression hearing that the witness's proposed trial identification will be reliably based on the witness's observation at the time of the crime, and that the identification was not induced by events occurring between the witness's observations of the crime and the witness's in-court identification.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

When considering the admissibility of all pretrial identifications, the essential criterion is their reliability under all of the circumstances disclosed by the record.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

The question for the trial court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though one of the confrontation procedures at issue may have been suggestive.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

A reviewing court must consider the following five factors when determining whether a witness has an independent basis for an in-court or out-of-court identification that would overcome the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness in identifying the perpetrator; and (5) the length of time between the crime and the identification.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

It is well established that evidence will be suppressed if, under the totality of the circumstances, the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

When a one-on-one confrontation between an eyewitness and a citizen results in an identification of the citizen as the perpetrator of the crime, after the eyewitness knows of a prior police judgment that the confronted citizen is the person who committed the crime, that identification resulting from the one-on-one confrontation is inadmissible except in cases involving fresh on-the-scene identification.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson). 

 

An in-court identification, following an illegal out-of-court identification, is admissible if, considering the totality of the circumstances, the in-court identification has an independent origin sufficiently distinguishable to be purged of the primary taint.  Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson).

 

INCONSISTENT VERDICTS - GENERALLY

 

The Court first notes the well-established principle of law that a court will allow inconsistent verdicts as long as there is evidence to support the verdict; it is the jury’s sole prerogative to decide on which counts to convict in order to provide a Defendant sufficient punishment. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).

 

INEFFECTIVENESS OF COUNSEL

 

Claims of ineffectiveness of counsel are subject to a three part analysis; first, it must be demonstrated that the underlying claim is of arguable merit; next, it must be determined whether counsel's choice of action had some reasonable basis designed to effectuate his client's interests; finally, a showing must be made of how counsel's choice of action prejudiced the client.  Commonwealth v. Norton, 52 Som.L.J. 66 

 

Counsel will not be deemed ineffective for failing to assert a baseless claim.  Commonwealth v. Norton, 52 Som.L.J. 66 

 

Defendant must allege more than the general assertion that counsel failed to call certain additional witnesses. To merit consideration, defendant must identify the material evidence that the witness would have provided and the specific manner in which the testimony would have been helpful.  Commonwealth v. Norton, 52 Som.L.J. 66. 

 

The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice.  Commonwealth v. Rice, 52 Som.L.J. 80. 

 

Where, as a result of previous convictions of similar charges in other jurisdictions, defendant is advised of a possible double jeopardy claim prior to entering his plea and knowingly waives the defense, there is no ineffectiveness of counsel.  Commonwealth v. Rice, 52 Som.L.J. 80. 

 

There are three (3) elements to a valid claim of ineffective assistance of counsel: (1) whether the disputed action or omission is of arguable merit; and if so, (2) whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest; and, if not, (3) appellant will be granted relief if he also demonstrates counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect on the outcome of the proceedings.  Commonwealth v. Ankeny, 52 Som.L.J. 95 

 

Trial counsel was not ineffective in obtaining an unbiased jury for his client where defendant did not alert his attorney to any unusual connection between the potential jurors and his father.  Commonwealth v. Ankeny, 52 Som.L.J. 95 

 

Defendant's ineffective assistance of counsel argument is without merit since the record of the plea colloquy contradicts Defendant's claim.  Commonwealth v. Mock, 53 Som.L.J. 65

 

Generally, before a court will find ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must prove that he requested an appeal and that counsel disregarded this request." Commonwealth v. Harmon, 738 A.2d 1023, 1024-25 n.5 (Pa. Super 1999).  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

Counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example because there are non frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.  In making this determination, courts must take into account all the information counsel knew or should have known.  Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

A deficient failure on the part of counsel to consult with the defendant does not automatically entitle the defendant to reinstatement of his or her appellate rights; the defendant must show prejudice.  The [Supreme] Court held that "to show prejudice in the circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001) and  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

We find that the defendant did not demonstrate to his trial counsel that he was interested in appealing.  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

It is better practice for counsel routinely to consult with the defendant regarding the possibility of appeal and that a highly relevant factor in the inquiry will be whether the conviction follows a trial or a guilty plea.  Roe v. Flores-Ortega, 528 U.S. 470, 479-80 (2000).  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

We also take heed of the Supreme Court's expectation that, when evaluating the reasonableness of counsel's performance, in the vast majority of cases, the court will find that counsel had a duty to consult with the defendant about an appeal.  Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

We find that trial counsel had a constitutionally imposed duty to consult with the defendant about the advantages and disadvantages of an appeal, and that the lack of consultation constituted a deficiency.  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.)

 

The U.S. Supreme Court recognized that analysis of the prejudice requirement would overlap to a certain extent the determination of deficient failure to consult.  We also recognize the Supreme Court's emphasis on the importance of a showing of non-frivolous grounds for appeal.  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

The Supreme Court further notes that although a showing of non-frivolous grounds for appeal may give weight to the defendant's position, a failure to specify the points to be raised on appeal does not foreclose the possibility that the defendant can satisfy the prejudice requirement, "where there are other substantial reasons to believe that he would have appealed."  Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.) 

 

Based on defendant's testimony, the fact that the defendant was convicted after trial rather than by guilty plea, given the seriousness of the charges and the sentence imposed, and taking into account the fact that the defendant had complained about the failure of counsel to file an appeal in his Post Conviction Relief Act motion, we have concluded that the defendant has sufficiently demonstrated a reasonable probability that, but for counsel's failure to consult, he would have filed a timely direct appeal.  Commonwealth v. James D. Jones, 62 Som.L.J. 186 (2005) (Fike, P.J.)

 

INTERROGATIONS – GENERALLY

 

Before an individual may be subjected to a custodial interrogation, he must make a knowing and intelligent waiver of his privilege against self-incrimination and right to counsel after receiving an adequate warning as to those rights.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

Statements obtained by the police during a custodial interrogation, where the defendant did not receive Miranda warnings, are presumed to be given without a knowing and intelligent waiver, and are subject to suppression.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

The determination whether a person is in custody for Miranda purposes depends upon whether the person reasonably believes that his freedom of action or movement is restricted by the police.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson)

 

The purpose of the six-hour rule is to guard against coercive interrogation and to ensure the accused is promptly afforded his constitutional rights.  If the accused has not been subjected to coercive tactics, the mere passage of six hours in custody prior to questioning does not taint his confession.  Commonwealth v. Robert Ohler, 63 Som.L.J. 1 (2006) (Cascio, P.J.) 

 

INTERROGATIONS –MIRANDA WARNINGS

 

Police need only give Miranda warnings while detaining a suspect by the side of a public highway when the suspect is actually placed under arrest or when the questioning of the suspect is so prolonged or coercive as to approximate the atmosphere of a station house interrogation.  Commonwealth v. Gourley, 53 Som.L.J. 48 

 

Miranda warnings are not needed in a situation wherein defendant voluntarily stopped in front of his house, halted when the police officer so asked him and responded affirmatively when the officer inquired if he had been drinking.  Commonwealth v. Gourley, 53 Som.L.J. 48 

 

All that is necessary for a valid Miranda waiver is that a Defendant's rights be reasonably conveyed to him.  Commonwealth v. Robert Ohler, 63 Som.L.J. 1 (2006) (Cascio, P.J.) 

 

When an accused has invoked his right to have counsel present during interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.  Commonwealth v. Robert Ohler, 63 Som.L.J. 1 (2006) (Cascio, P.J.) 

 

An accused having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.  Commonwealth v. Robert Ohler, 63 Som.L.J. 1 (2006) (Cascio, P.J.) 

 

The issue of delay prior to the giving of an inculpatory statement is no longer governed by the "bright-line" test.  Commonwealth v. Robert Ohler, 63 Som.L.J. 1 (2006) (Cascio, P.J.) 

 

The PA Supreme Court has never created a prophylactic rule that a suspect must be rewarned of his constitutional rights every time a custodial interrogation is renewed.  Commonwealth v. Robert Ohler, 63 Som.L.J. 1 (2006) (Cascio, P.J.)

 

There was no Miranda violation when the Defendant, a driver of a vehicle involved in an accident, made statements to an officer at the accident scene prior to being Mirandized, as motorists involved in an accident have a statutory duty to immediately stop, remain at the scene, and provide certain information, such statutory duty not amounting to custody for Miranda purposes. Commonwealth v. Ashbrook, 63 Som.L.J. 339 (2007)(Cascio, P.J.).

 

ISSUANCE OF SEARCH WARRANT – PROBABLE CAUSE

 

The tip from and subsequent controlled purchase of illegal drugs by a confidential informant are sufficient indicators of reliability to support the issuance of a search warrant for the premises where the purchases take place. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

Before an issuing authority may issue a constitutionally valid search warrant, he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search, which is evaluated under the “totality of the circumstances” test. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

The issuing authority must make a practical, common sense decision, whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

The information offered to establish probable cause must be viewed in a common sense, non-technical manner. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

Probable cause is based on a finding of the probability, not a prima facie showing, of criminal activity; deference is accorded to a magistrate's finding of probable cause. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

Although the information initially provided by a confidential informant alone may not be enough to support a finding of probable cause – e.g., no facts in the affidavit indicating that the informant was used in the past or had intimate knowledge of the defendant, the fact that such information is corroborated by the police with a “controlled buy” provides substantial reliability, and such corroboration provides a “substantial basis for crediting hearsay” information given by informants. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

Corroboration may be based upon the following sequence of events: a confidential informant is searched prior to a “controlled buy;” he/she is followed by police to the residence; the police observe the confidential informant entering the residence and exiting a short time later; and the confidential informant turns over a quantity of the controlled substance. Commonwealth v. Moore, 65 Som.L.J. 208 (2012)(Cascio, P.J.).

 

POLICE ENCOUNTER – ARREST (OR CUSTODIAL DETENTION)

 

"Custodial detention" must be supported by probable cause.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson)

 

An "arrest" or its equivalent a "custodial detention" must be supported by probable cause.  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.).

 

Factors used in analyzing whether a defendant was arrested or detained for investigative purposes are 1) the basis for the detention (the crime suspected and the grounds for suspicion); 2) the duration of the detention; 3) the location of the detention (public or private); 4) whether the suspect was transported against his will (how far, why): 5) the method of detention; 6) the show, threat or use of force; and 7) the investigative methods used to confirm of dispel suspicions.  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.). 

 

The fact that the arresting officer did not explicitly inform the Defendant that he was under arrest is of no consequence. An arrest may be effectuated without a formal statement of arrest. Commonwealth v. David Allen Jenista, 64 Som.L.J. 18 (2008) (Cascio, P.J.).

 

It is axiomatic that when a suspect is deprived of his freedom to leave, he is considered under arrest. Commonwealth v. David Allen Jenista, 64 Som.L.J. 18 (2008) (Cascio, P.J.).

 

POLICE ENCOUNTER – GENERALLY

 

A police encounter may be characterized as a mere encounter, an investigative detention, a custodial detention or a formal arrest.  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.). 

 

There are three recognized types of encounters between police and citizens, i.e., a "mere encounter," an "investigative detention," or Terry stop, and a "custodial interrogation" or arrest, each of which possesses a level of suspicion that must be present to justify the police intrusion.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.) 

 

There are three recognized types of encounters between police and citizens, i.e., a "mere encounter," an "investigative detention" or Terry stop, and a "custodial interrogation" or arrest, each of which possesses a level of suspicion that must be present to justify the police intrusion.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.)

 

POLICE ENCOUNTER – INVESTIGATIVE DETENTION

 

An "investigative detention," however, must be supported by a reasonable suspicion, and its subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest.  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.). 

 

An "investigative detention" is considered a seizure and must be supported by reasonable suspicion.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson)

 

POLICE ENCOUNTER – MERE ENCOUNTER

 

A "mere encounter" (or request for information) carries no official compulsion to stop or to respond on the part of the individual, and does not have to be supported by any level of suspicion by the police officer.  Commonwealth v. Moskey, 60 Som.L.J. 326 (2002) (Gibson, J.). 

 

A "mere encounter" does not constitute a seizure under the Fourth Amendment.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson)

 

The difference between a mere encounter and an investigative detention is whether a reasonable individual would think that he was being restrained.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson)

 

RULE 103: DEFINITIONS

 

"Issuing authority" is "any public official having the power and authority of a magistrate, a Philadelphia bail commissioner, or a district justice."  Pa.R.Crim.P. 103.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.).

 

RULE 107: CONTENTS OF SUBPOENA

 

"A subpoena in a criminal case shall order the witness named to appear before the court at the date, time and place specified, and to bring any items identified or described.  The subpoena shall also state on whose behalf the witness is being ordered to testify and the identity, address, and phone number of the attorney, if any, who applied for the subpoena."  Pa.R.Cr.P. 107.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.).

 

RULE 452: COLLATERAL

 

Pa.R.Crim.P. 452 allows an issuing authority to fix collateral only in the form of cash or its equivalent, to be deposited to insure a defendant's appearance at the summary trial, which amount shall not exceed the full amount of fines and costs.  In Re: One Freightliner Tractor…, 60 Som.L.J. 196. (Cascio, J.) (2002). 

 

Black's Law Dictionary defines "cash equivalent" as "[a] short-term security that is liquid enough to be considered equivalent to cash."  In Re: One Freightliner Tractor…, 60 Som.L.J. 196. (Cascio, J.) (2002). 

 

Tangible personal property, such as a tractor and trailer whose marketability is speculative, would not fall within the definition of "cash equivalent."  In Re: One Freightliner Tractor…, 60 Som.L.J. 196. (Cascio, J.) (2002). 

 

The Pennsylvania Supreme Court's inclusion of automobile club bond certificates as cash equivalent in Pa.R.Crim.P. 452 indicates a negative implication that personal property would not qualify as cash equivalent.  In Re: One Freightliner Tractor…, 60 Som.L.J. 196. (Cascio, J.) (2002). 

 

The legal maxim of negative implication or expression unius est exclusio alterius ("the expression of one thing is the exclusion of another") only applies where the surrounding circumstances indicate that the legislature in fact intended such an interpretation.             In Re: One Freightliner Tractor, 60 Som.L.J. 196. (Cascio, J.) (2002).

 

RULE 534: DURATION OF OBLIGATION OF BAIL (previously numbered 4014)

 

Rule 4014 states that unless revoked, bond remains valid until full and final disposition of the case, including all avenues of direct appeal to the Supreme Court of Pennsylvania.  Commonwealth v. Rininger, 54 Som.L.J. 213 (Jan. 19, 1996) (Fike, P.J.) 

 

The term "full and final disposition" in Rule 4014 includes proceedings for allowance of appeal to the Pennsylvania Supreme Court.  Commonwealth v. Rininger, 54 Som. L.J. 213 (Jan. 19, 1996) (Fike, P.J.) 

 

The intent of Rule 4011 is that a defendant is not entitled to continuation of bond for post-conviction proceedings and other collateral attacks.  Commonwealth v. Rininger, 54 Som.L.J. 213 (Jan. 19, 1996) (Fike, P.J.) 

 

If the defendant files a timely petition for allowance of appeal, the bond will remain in effect until final disposition by the Pennsylvania Supreme Court, unless revoked for other reasons.  Commonwealth v. Rininger, 54 Som.L.J. 213 (Jan. 19, 1996) (Fike, P.J.)

 

RULE 545: WITNESSES, COMPULSORY PROCESS

 

"The issuing authority shall issue such process as may be necessary for the summoning of witnesses for the Commonwealth or the defendant." Pa.R.Cr. P. 545.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.).

 

RULE 560: INFORMATION, FILING, CONTENTS, FUNCTION

 

Pa R.Crim P. 560 requires the information filed by the Commonwealth to describe the substantially same charges as or cognate to those charges set forth in the criminal complaint.  Commonwealth v. McCusker, 60 Som.L.J. 416 (August 15, 2003) (Cascio) 

 

RULE 578: PRE-TRIAL REQUESTS FOR RELIEF

 

Unless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus motion. Pa.R.Crim.P. 578. Commonwealth v. Ashbrook, 63 Som.L.J. 339 (2007)(Cascio, P.J.)

 

RULE 579: PRE-TRIAL REQUESTS FOR RELIEF

 

The time for filing pretrial requests for relief is established by Pa.R.Crim.P. 579. Commonwealth v. Ashbrook, 63 Som.L.J. 339 (2007)(Cascio, P.J.)

 

In any case in which an information is filed after the date that this Memorandum is published in the Somerset Legal Journal, all pretrial motions for relief which are not filed within the time period required by Pa.R.Crim.P. 579 must contain an explanation of the reason why the motion was not timely filed sufficient to comply with the requirements of Rule 579 and a prayer for relief from the strict application of the Rule together with a signed verification by the District Attorney assigned to the case that there is no objection to the late filing or be subject to summary dismissal. Commonwealth v. Ashbrook, 63 Som.L.J. 339 (2007)(Cascio, P.J.)

 

RULE 588: MOTION FOR RETURN OF PROPERTY (previously numbered 324)

 

Pa.R.Crim.P. 588 (B) requires that property that has been seized shall be restored to the movant unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.  In Re: One Freightliner Tractor…, 60 Som.L.J. 196. (Cascio, J.) (2002). 

 

Pennsylvania Rule of Criminal Procedure 588 governs the return of property seized by law enforcement officials and sets forth the procedural sequence to be followed in a hearing on the issue of return of property.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

The person seeking the return of property must initially establish that he or she is entitled to lawful possession of the property.  If that burden is met by the moving party, then the property shall be restored unless the court determines that such property is contraband.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

The burden to establish that the property is contraband is on the Commonwealth.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

The issue of whether the property is contraband is only addressed by the court if the person seeking return of the property has first established that he is entitled to lawful possession of the property.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Former Pennsylvania Rule of Criminal Procedure 324 is presently Rule of Criminal Procedure 588.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Rule 324(a) (presently Rule 588) provides that a person may move for the return of property seized on the ground that he is entitled to lawful possession thereof.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Rule 324(a) further states that a judge shall receive evidence on any issue of fact necessary to the decision thereon and that, if the motion is granted, the property shall be restored unless the court determines that such property is contraband.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Although in some instances a petitioner may need to introduce evidence of ownership of an item to establish his entitlement to lawful possession, where the property at issue is currency and the Commonwealth does not dispute that it was taken from the petitioner's possession, the petitioner need only allege that the money belongs to him.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

The Commonwealth then has the burden of proving that the money is contraband if it seeks to prevent the return of the money.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

When a petitioner offers evidence of entitlement to lawful possession or ownership, as is required to meet his or her burden of persuasion by a preponderance of the evidence, the burden of production shifts to the Commonwealth to produce evidence to rebut the petitioner's claim.  The Commonwealth is required to come forward with any material facts available to it, relevant to the right to lawful possession, or risk defeat on the issue.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

If the Commonwealth has insufficient evidence at hand to rebut the petitioner's claim, of entitlement to lawful possession or ownership under section (a) of Rule 324, it may always attempt to defeat a petitioner's claim by proving that the seized property is more likely than not subject to forfeiture as contraband under section (b).  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Although the burden of persuasion never shifts from the petitioner to establish entitlement to lawful possession or ownership of seized property, requiring the Commonwealth to meet its burden of production with respect to lawful possession is especially necessary in the event that the subject property is currency.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

It is well settled that statues authorizing forfeiture are not favored under the law of this Commonwealth and are strictly construed.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

When the state effects a seizure of property, absent statutory authority or any evidence of criminal wrongdoing related to the property, a petitioner advancing a claim to lawful possession or ownership under Rule 324 is entitled, at a minimum, to have his or her evidence answered.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Where there is an absence of any criminal nexus between the property seized and the petitioner attempting to reclaim possession, the Commonwealth has a burden to produce evidence relevant to rebut the claim to lawful possession or ownership under section (a), file for forfeiture under subsection (b), or return property forthwith to the claimant.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Under Rule 588, on any motion for return of property, the moving party must establish entitlement to lawful possession.  Then it is the Commonwealth's burden to prove that the property at issue is contraband.  Forfeiture does not, however, automatically ensue when a motion for return of property is denied.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

It is improper to award forfeiture, under the Controlled Substances Forfeiture Act, unless a request for forfeiture has been duly made.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

A proceeding with regard to a motion for return of property is entirely distinct from a forfeiture proceeding.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

On any motion for return of property, the moving party must first establish entitlement to lawful possession before any obligation is placed upon the Commonwealth to prove that the property at issue is contraband.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Although a motion for return of property and a forfeiture petition may be heard together in one proceeding, where the only matter before the court is a motion for return of property, a necessary element which must be proven to warrant the granting of the motion is the right of the moving party to lawful possession.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Where the trial court is not provided with credible evidence as to ownership or entitlement, a motion for return of money should not be granted.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

When the property at issue is currency, in most cases the petitioner's right to lawful possession is not a disputed issue; rather, the issue of whether the currency is contraband is usually the issue which is disputed and litigated at the hearing on the petition for return of property.  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

Where the petitioner is seeking the return of currency under Pa.R.Cr.P. 588, the following general principles apply: (1) If the Commonwealth does not dispute the petitioner's entitlement to lawful possession of the seized currency then the petitioner meets his burden merely by alleging that the money belongs to him.  Then the court will address the contraband issue; (2) However, where the Commonwealth disputes the petitioner's entitlement to lawful possession of the currency, then an inquiry into the sources and intended uses of the money is proper under Commonwealth v. Younge, 446 Pa.Super. 541, 667 A.2d 739 (1995).  Staton v. Commonwealth of Pennsylvania, 60 Som.L.J. 241 (2002) (Gibson, J.). 

 

A proceeding seeking the return of property is quasi-criminal in character, but it is civil in form. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

Pennsylvania Rule of Criminal Procedure 588 addresses the procedure and burden of proof in a return of property case. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

The moving party bears the initial burden of establishing entitlement to lawful possession of the property. Once this burden is met, the Commonwealth bears the burden to prove, by a preponderance of the evidence, that the items are either “contraband per se” or “derivative contraband” and therefore should not be returned to the moving party. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

Pennsylvania statute provides that “the carcass of game or wildlife lawfully killed or taken shall be the property of the person who inflicts a mortal wound which enables that person to take possession of the carcass.” 34 Pa.C.S.A. § 2304. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

The Pennsylvania Supreme Court defines the term contraband per se as property the mere possession of which is unlawful. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

Derivative contraband is property innocent by itself, but used in the perpetration of an unlawful act. Moreover, property is not derivative contraband merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity (although actual gun used in crime is derivative contraband, rifles not used in commission of crime must be returned). In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

34 Pa.C.S.A. § 102 defines contraband as the term relates to wildlife as “any game or wildlife, or part or product thereof, or any personal property. . .  when the game or wildlife, or part or product thereof, or the personal property is held in possession, transported or used or taken in violation of any law, the enforcement or administration of which is vested in the commission. Contraband shall be forfeited to the commission to be disposed of at the discretion of the director. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

In order to determine whether property is contraband, and if so, what type of contraband, one must refer to the nature of the property and to the statute that it is contended to make possession of the property or its use unlawful. In Re: Carl E. Mostoller, 63 Som.L.J. 254 (2006) (Cascio, P.J.).

 

Under Pa.R.Crim.P. 588 the moving party must establish his or her entitlement to lawful possession of the property to support a motion for return of property, and the Commonwealth bears the burden to prove that the items are either “contraband per se” or “derivative contraband” and, therefore, should be forfeited to the Commonwealth. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).

 

The resolution of criminal charges in favor of a defendant does not bar subsequent civil or administrative proceedings, therefore an acquittal in criminal proceedings has no preclusive effect in a subsequent proceeding on a motion for return of property or a motion for forfeiture. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).

 

A proceeding seeking the return of property is quasi-criminal in character, but is civil in form, therefore an action for the recovery of personal property must be commenced within two years of the injury. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).

 

“Contraband per se” is property the mere possession of which is unlawful while “derivative contraband” is property innocent standing alone, but is used in the perpetration of an unlawful act. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).

 

The Commonwealth must establish a specific nexus between the property and the alleged criminal activity in order for the property to be declared derivative contraband. Commonwealth v. Luftee Abdul-Waalee, 64 Som.L.J. 335 (2010) (Cascio, P.J.).

 

RULE 600 – EXCLUDABLE TIME VS. EXCLUDABLE DELAY

 

“Excludable time” is defined in Rule 600(C) as the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; any period of time for which the defendant expressly waives Rule 600; and/or such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant's attorney; (b) any continuance granted at the request of the defendant or the defendant's attorney. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

“Excusable delay” is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth's control and despite its due diligence. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

RULE 600 – DUE DILIGENCE – MOTION TO DISMISS

 

The “due diligence” required under Rule 600(C)(1) pertains to the Commonwealth's efforts to apprehend the defendant. The other aspects of Rule 600(C) defining “excludable time” do not require a showing of due diligence by the Commonwealth. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

If the Commonwealth attempts to bring a defendant to trial beyond the 365 day-period prescribed by Rule 600, and the defendant files a Rule 600 motion to dismiss, the court must assess whether there is excludable time and/or excusable delay. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

Even where a violation of Rule 600 has occurred, a motion to dismiss the charges should be denied if the Commonwealth exercised due diligence and the circumstances occasioning the postponement were beyond the control of the Commonwealth. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

RULE 600 – RULE 600E – RULE 600G

 

The concepts of “excusable delay” and “due diligence,” both applicable in cases where Rule 600 (G) is implicated, do not apply when only Rule 600 (E) is in play. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

The plain language of Rule 600(E), referring only to the “excludable time” described in Rule 600(C), does not encompass delays attributable to actions of the Commonwealth, even when performed with due diligence. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

Rule 600(E) contemplates an increase in the number of days of pretrial incarceration in excess of 180 based only upon the exclusions of time referenced in Rule 600(C), attributable to the defendant, and not upon extensions of time pursuant to Rule 600(G) for actions taken diligently by the Commonwealth. Commonwealth v. Maust, 65 Som. L.J. 78 (2011) (Cascio, P.J.)

 

RULE 600: PROMPT TRIAL (previously numbered 1100)

 

While Pa.R.C.P. 1100 (now 600) does not apply to juvenile cases, the due process clause of the Untied States Constitution’s Fourteenth Amendment does provide a speedy trial right in delinquency proceedings.  In the Interest of D.C. 58 Som.L.J. 409 (2001) (P.J. Fike). 

 

Rule 1100 (a) (2) (Now Rule 600 (a) (2)) of the Pennsylvania Rules of Criminal Procedure provides that when a person is incarcerated, trial should commence no later than 180 days from the date on which the complaint was filed.  The 180-day period does not begin to run at the time of arrest.  Com. v. Goughnour, 58 Som.L.J. 314 (2000) (J. Gibson). 

 

Rule 1100 (Now Rule 600) details periods of time that are to be excluded when computing the 180-day period.  Com. v. Goughnour, 58 Som.L.J. 314 (2000) (J. Gibson). 

 

Excludable time derives from Rule 1100 (c) (Now Rule 600 (c)) and refers to any period of time which is excludable from the calculation when determining whether a Rule 1100 (Now Rule 600) when the defendant files a pretrial motion which delays the beginning of the trial.  Com. v. Goughnour, 58 Som.L.J. 314 (2000) (J. Gibson). 

 

A defendant will be deemed responsible for the delay for the purposes of Rule 1100 (Now Rule 600) when the defendant files a pretrial motion which delays the beginning of the trial.  Com. v. Goughnour, 58 Som.L.J. 314 (2000) (J. Gibson). 

 

The Commonwealth must demonstrate by a preponderance of the evidence that it exercised due diligence in opposing or responding to the pretrial motion.  Com. v. Goughnour, 58 Som.L.J. 314 (2000) (J. Gibson). 

 

Due diligence requires that the Commonwealth must do everything reasonable within its power to guarantee that a trial begins on time.  Com. v. Goughnour, 58 Som.L.J. 314 (2000) (J. Gibson). 

 

The Rules of Criminal Procedure do not apply to juvenile proceedings unless otherwise specifically provided, and nowhere does Rule 600 specifically mention that its time bars apply to juvenile proceedings.  In Re: B.D., 62 Som.L.J. 9, 11 (2005) (Cascio, J.) 

 

Pennsylvania Rule of Criminal Procedure 600 provides, generally, that trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.  Commonwealth v. Glover #1, 63 Som.L.J 249 (2006) (Cascio)

 

Rule 600 only applies to "court cases."  Rule 103 defines court case as a case on which one or more of the offenses charged is a misdemeanor, felony, or murder of the first second, or third degree.  Commonwealth v. Glover #1, 63 Som.L.J 249 (2006) (Cascio)

 

Rule 600 clearly does not apply to summary offenses standing alone.  Case law has informed us, however, that the Rule will apply to summary offenses that are alleged in the same complaint as a misdemeanor or felony.  Commonwealth v. Glover #1, 63 Som.L.J 249 (2006) (Cascio)

 

When an initial complaint has been withdrawn or otherwise dismissed, the time period begins to run anew with the filing of a subsequent complaint only if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent the Rule. Commonwealth v. Glover #1, 63 Som.L.J 249 (2006) (Cascio)

 

RULE 703: DISCLOSURE OF PRE-SENTENCE REPORTS (previously numbered 1404)

 

Rule 1404 [now 703] provides that pre-sentence investigation reports are confidential.  Commonwealth v. Carroll, 54 Som.L.J. 263 (May 14, 1996) (Fike, P.J.) 

 

If defense counsel is given full access to the pre-sentence investigation report at the time of sentencing, it is not required that the report be provided to the defendant.  Commonwealth v. Carroll, 54 Som.L.J. 263 (May 14, 1996) (Fike, P.J.)

 

RULE 708: VIOLATION OF PROBATION

 

Pa.R.Crim.P. 708B provides that whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been a hearing held as speedily as possible and a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.  Commonwealth v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

In order to determine whether the delay in a probation revocation hearing is reasonable under Pa.R.Crim.P. 708, the court looks at three factors: 1) the length of the delay, 2) the reason for the delay, and 3) the actual prejudice to the defendant as a result of the delay.  Commonwealth v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

Neither Pa.R.Crim.P. 708 nor case law has established any point in time beyond which delay in revocation proceedings is unreasonable per se.  Commonwealth v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

RULE 720: POST SENTENCE PROCEDURES, APPEAL

 

Defendant's post trial motion asserts generally that the verdict was against the weight and sufficiency of the evidence; however, "boilerplate" language in post trial motions is not sufficient, and absent specific averments, will not be considered.  Commonwealth v. Ulrich, 61 Som.L.J. 282 (2004) (Fike, II, P.J.).

 

SEARCH & SEIZURE – CANINE SNIFFS

 

"A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct.  ‘This standard, less stringent than probable cause, is commonly known as reasonable suspicion.'  In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered.  In making this determination, we must give ‘due weight . . . to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.'  Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct.  Rather, ‘even a combination of innocent facts, when taken together, may warrant further investigation by the police officer."  Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004).  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

Reasonable suspicion does not require that the activity in question must be unquestionably criminal before an officer may investigate further.  Rather, the test is what it purports to be - it requires a suspicion of criminal conduct that is reasonable based upon the facts of the matter.  The facts of the matter sub judice give rise to just such a suspicion.  Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 2004).  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

Even though a canine search is a search, it is distinguishable from other types of searches in that it is less intrusive on privacy. Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

There is a difference between canine sniffs of persons and sniffs of places; the latter requiring only reasonable suspicion, but the former mandating probable cause due to the varying levels of intrusion on the right of privacy.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

Because the expectation of privacy in the exterior of a vehicle is slight, especially since it is exposed to the public, and because a canine sniff of the exterior only creates a minimal intrusion, mere reasonable suspicion is required.  As for the canine sniff of the vehicle's interior, searches by dogs are not akin to searches by humans, and therefore, need not in all instances be supported by probable cause.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

Relating Rogers again to the matter at hand, the trooper had reasonable suspicion to detain the defendant and call for a canine unit.  Once the dog arrived, sniffed the vehicle's exterior, and alerted twice to the trunk, reasonable suspicion heightened into probable cause.  Therefore, not only was the initial traffic stop valid, but so were the detention of defendant by the officer to call in the canine unit, and the eventual canine sniff.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

In deciding this matter, we find U.S. v. Frost, 999 F.2d 737 (3d. Circ. 1993) and U.S. v. Padilla & Cruz, (E.D. Pa. 1997) instructive, as both stand for the proposition that so long as an officer acts diligently in detaining an individual to conduct a canine sniff, a lengthy detention is not necessarily unreasonable.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

It does not demonstrate a lack of diligence on the part of the detectives that a drug-sniffing unit was not on duty that day, so that one had to be summoned to the airport.  Nor is it unreasonable that the unit, being summoned at six o'clock in the evening, would take nearly an hour to reach the airport.  Moreover, the detectives exhibited diligence in giving Frost receipts for the detained items and instructing him on how he could retrieve them.  We find that none of the indicia of a lack of diligence, which substantially informed the result in Place, occurred in the instant case.  We thus hold that the detention of Frost's suitcase constituted no violation of his rights.  U.S. v. Frost, 999 F.2d 737, 742 (3d. Circ. 1993).  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

The trooper had reasonable suspicion, based on the totality of the circumstances, to detain defendant.  Because defendant refused to consent to a search of the trunk, a canine sniff was necessary to confirm the trooper's suspicion that the trunk contained narcotics.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

Because the trooper did everything within his immediate power to avoid unreasonable delay, we find that forty-five minutes was a reasonable amount of time to spend awaiting the dog's arrival.  Thus, because an eighty minute stop in Frost and a thirty minute stop in Davis were both deemed to be reasonable, given the diligence of law enforcement officers, the same should hold true for the seventy-five minute stop in the matter at hand.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

Following a "totality of the circumstances" approach, the trooper's observations, combined with his training and experience, gave him reasonable suspicion to detain defendant and to summon a canine unit.  Because the trooper acted diligently, it was neither unreasonable to detain defendant for forty-five minutes to wait for a search dog, nor for a total time of one hour and fifteen minutes.  Com. v. Briggs, 62 Som.L.J. 127 (2005) (Fike, P.J.). 

 

SEARCH AND SEIZURE – CONSENT

 

Consent to search by one with access to the area searched, and either common authority over it, a substantial interest in it or permission to exercise that access, express or implied, alone validates a search.  Commonwealth v. Griffin, 51 Som.L.J. 377 

 

If voluntary consent is given, neither a warrant nor probable cause is required to conduct a search of a suspect.  Commonwealth v. Heinrich, 52 Som.L.J. 24 

 

The determination of whether consent is voluntary turns on the facts of each case and the totality of the circumstances.  Commonwealth v. Heinrich, 52 Som.L.J. 24 

 

Relevant factors both supporting a finding of consent and mitigating against a finding of consent are discussed.  Commonwealth v. Heinrich, 52 Som.L.J. 24 

 

Where defendant was lawfully stopped and questioned; defendant requested a ride to the police station; defendant was warned of the requirement that he be searched before entering the police car; and defendant consented to the search, the consent was voluntary, a warrant was not required and the fruits of the search were not suppressed.  Commonwealth v. Heinrich, 52 Som.L.J. 24 

 

If a search occurs, a search warrant is generally needed in order to constitutionally search and seize items. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

In Pennsylvania, police cannot conduct a warrantless search of an automobile unless there is probable cause to believe that 1) there is evidence or contraband in the vehicle and 2) there are exigent circumstances, such as danger to the officers or public or the possibility of destruction of evidence. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

Pennsylvania courts do not recognize an automobile’s mobility as a valid exigent circumstance in order to satisfy Article 1, Section 8 of the Pennsylvania constitution. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

A warrantless search can be valid if the defendant consented to the search. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

Consent is not voluntary if it is merely a submission to a show of government authority or if the person fails to affirmatively assert his or her right to not be searched. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

Defendant’s failure to verbally object to the search of his bags and his submission to the acts of the government’s search does not mean he provided valid consent. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

In addition to the consent being voluntary, it must be given by a person with the authority to consent. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

In the absence of actual authority to consent, a police officer may proceed to search based upon consent if the person consenting had the apparent authority to do so. Apparent authority is present when the police make a reasonable mistake in believing that a third party has the actual authority to consent to the search. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

Apparent authority must be evaluated objectively, without regard to the police officer’s subjective belief regarding the third party’s authority to consent. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

To determine apparent authority, a court must use an objective test. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

The presumption that a person has a privacy interest in his claimed personal belongings is well known and historically recognized. We find no reason to believe that these privacy rights are lessened merely because Defendant’s concealed personal possessions were in the trunk of a taxicab that he occupied. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

Since valid consent, a search warrant, and exigent circumstances are lacking, we must suppress the contents of the luggage. Com. v. Edwards, 65 Som.L.J. 48 (2011)(Cascio, J.).

 

 

SEARCH AND SEIZURE – GENERALLY

 

Probable cause is a common-sense doctrine that allows for flexibility; it is a doctrine that takes into consideration all factual and practical considerations of everyday life which affect how reasonable and prudent men act.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

In determining whether probable cause exists, we must take into consideration all the attendant facts and circumstances, viewing such facts and circumstances as seen through the eyes of a trained police officer.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

One has no standing to complain of a search or seizure of property that he has voluntarily abandoned.  Commonwealth v. Griffin, 51 Som.L.J. 377 

 

A search warrant must be obtained in order for a police officer to lawfully search a person or his property.  In Re: Cox, 52 Som.L.J. 211 

 

A search warrant is not necessary for a search incident to a lawful arrest.  In Re: Cox, 52 Som.L.J. 211 

 

Absent probable cause to arrest, a search incident to arrest is not permissible.  In Re: Cox, 52 Som.L.J. 211

 

Police officer did not have reasonable grounds to suspect defendant was in violation of §33309(1) of the Motor Vehicle Code when lanes of traffic were not clearly marked and officer could not determine what part of the roadway was meant to be the berm.  Commonwealth v. Gourley, 53 Som.L.J. 48 

 

Police officer did have reasonable grounds to suspect defendant was in violation of §3334(b) of the Motor Vehicle Code when defendant signaled his intention to turn right within the required distance but then made an unsignaled left turn.  Commonwealth v. Gourley, 53 Som.L.J. 48 

 

The Fourth Amendment of the United States Constitution guarantees citizens the right to be secure in their homes and property against warrantless searches and seizures without probable cause.  Exceptions to the Fourth Amendment requirement have allowed warrantless examinations of automobiles in circumstances where a warrantless search of a home or office might not be permissible.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.)

 

For a warrantless seizure to take place, the police must have either probable cause to believe that a crime is being or is about to be committed or a reasonable belief that criminal activity is afoot.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

When an object is in plain view and a police officer views the object from a lawful vantage point, then a warrantless seizure of the object is justified.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

The incriminating nature of the object must be apparent to the police officer.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

Whether or not the incriminating nature of the object is immediately apparent is to be judged by the totality of the circumstances.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

Absent exigent circumstances, after occupants of a vehicle have been removed from the vehicle and placed in police custody, the police cannot conduct a warrantless search of the vehicle.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

Article I Section 8 of the Pennsylvania Constitution emphasizes the strength of privacy interest in Pennsylvania.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

An individual has a higher privacy interest under the Pennsylvania Constitution than under the Federal Constitution.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

An officer cannot search a vehicle incident to arrest after the occupants have been removed from the vehicle and placed in police custody.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson). 

 

A warrantless search not based on probable cause is prohibited and renders any evidence found as a result of the search inadmissible.  Commonwealth v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

A third party who has neither interest nor control in the property may not give the police valid consent to conduct a warrantless search of the property except where a police officer is reasonably mistaken as to the actual authority of the party consenting to his entry.  This rule applies to personal property as well as realty.  Commonwealth v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

When comparing the standards "articulable and reasonable grounds to suspect" and "probable cause," one standard is not less stringent than the other.  The two standards amount to nothing more than a distinction without a difference.  Commonwealth v. Brothers, Joseph Russell, 61 Som.L.J. 50 (2002)(Fike, P.J.) 

 

Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.  In re: A.S.H. 62 Som.L.J. 70 (September 16, 2005) (Cascio, J.)

 

While passengers in an automobile may maintain a reasonable expectation of privacy in the contents of luggage they place inside an automobile, it would be unreasonable to maintain a subjective expectation of privacy in locations of common access to all occupants.  Commonwealth v. Devon Allan Baskin, 62 Som.L.J. 438 (2006) 

 

Actual possession is established by showing that the defendant had the controlled            substance on his person or directly within his control.  Commonwealth v. Devon Allan Baskin, 62 Som.L.J. 438 (2006) 

 

Constructive possession is defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.  Commonwealth v. Devon Allan Baskin, 62 Som.L.J. 438 (2006) 

 

When the crime charged is the illegal possession of narcotic drugs, the presence of a person at the scene, without a consideration of the totality of the circumstances, does not prove the crime.   Commonwealth v. Devon Allan Baskin, 62 Som.L.J. 438 (2006)

 

Before invalidating a search warrant based on an unintentional misstatement in an affidavit, the Court must determine whether the statement was essential to the warrant being issued. Commonwealth v. Tracy Baker Gibbs & Douglas Harold Sleasman, 64 Som.L.J. 65 (2009) (Cascio, P.J.)

 

The Court will not invalidate a search warrant for lack of specificity when police have undergone diligent efforts which do not disclose the existence of an internal structural divisions in the building, which by all outward signs, and reasonably available information, appears to be a single family residence. Commonwealth v. Tracy Baker Gibbs & Douglas Harold Sleasman, 64 Som.L.J. 65 (2009) (Cascio, P.J.)

 

The Pennsylvania Rules of Criminal Procedure and the Pennsylvania Constitution do not formally require the physical possession of a warrant at the commencement of a search. And therefore the lack of physical possession of a warrant will not invalidate a search as long as all of the Constitutional mandates regarding its issuance have been fulfilled. Commonwealth v. Tracy Baker Gibbs & Douglas Harold Sleasman, 64 Som.L.J. 65 (2009) (Cascio, P.J.)

 

When ruling on an officers compliance with the “knock-and-announce rule” the proper inquiry for the Court is whether a sufficient time elapsed in which the police could form a reasonable belief that the occupants of the premises did not intent to voluntarily or peaceably surrender the premises. Commonwealth v. Tracy Baker Gibbs & Douglas Harold Sleasman, 64 Som.L.J. 65 (2009) (Cascio, P.J.)

 

A search warrant may be issued solely on the basis of hearsay information so long as the reliability of the source is established or there is some corroboration of his or her story. The affiant is not required to recite that the informant is credible or his information is reliable. However, the affiant must give some facts which tend to support such credibility or reliability. Commonwealth v. Gary Patrick, 64 Som.L.J. 108 (2009) (Cascio, P.J.).

 

The credibility of an informant may be established in a situation in which the informant is personally involved in illegal transactions so as to outweigh his or her lack of previous reliable tips, resulting in probable cause to seize evidence. Commonwealth v. Gary Patrick, 64 Som.L.J. 108 (2009) (Cascio, P.J.).

 

SEARCH AND SEIZURE – INVENTORY SEARCHES

 

Warrantless examinations of automobiles are valid in circumstances where a warrantless search of a home or office might not be.  Commonwealth of Pennsylvania v. Gorzelsky, 51 Som.L.J. 67 

 

The police, engaged in caretaking and traffic-control functions aimed a securing or protecting the car and contents, may search a vehicle for inventory purposes.  Commonwealth of Pennsylvania v. Gorzelsky, 51 Som.L.J. 67 

 

Three distinct needs justify inventory searches: (1) the protection of the owner's property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger.  Commonwealth of Pennsylvania v. Gorzelsky, 51 Som.L.J. 67 

 

The ultimate test, of course, is whether the search is reasonable under the circumstances and the officer need not necessarily have probable cause for the search to be reasonable, since the underlying motivation of the search is inventory in nature not investigative.  Commonwealth of Pennsylvania v. Gorzelsky, 51 Som.L.J. 67 

 

According to Pennsylvania law, and inventory search may be considered reasonable if the Commonwealth satisfies two elements; first, the Commonwealth must prove that the vehicle searched was lawfully within the custody of the police; and secondly, the Commonwealth must show that the search was in fact an inventory search conducted pursuant to the objective set forth in South Dakota v. Opperman, 428 U.S. 364 (1976).  Commonwealth of Pennsylvania v. Gorzelsky, 51 Som.L.J. 67 

 

In assessing the validity of a claimed inventory search, the court may look to several factors, including the scope of the search, the procedure utilized, whether any items of value were in plain view, the reasons for and nature of the custody, the anticipated length of the custody, and any other facts which the court deems important in its determination.  Commonwealth of Pennsylvania v. Gorzelsky, 51 Som.L.J. 67        

 

In assessing an inventory search, the search must not only be reasonable but must be restricted to those areas where valuable items could possibly be located; these areas necessarily include passenger areas, the glove compartment, and the trunk.  Commonwealth v. Gorzelsky, 51 Som.L.J. 67 

 

When engaged in caretaking and traffic-control functions aimed at securing or protecting a car and contents, the police may search the vehicle for inventory purposes.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

When conducting an inventory search, probable cause is not necessary because the underlying motivation is inventory in nature and not investigative.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

Once a search is justified as an inventory search, the Commonwealth may look in all reasonable and necessary places where valuables may be located; these areas necessary include passenger areas, the glove compartment, and the trunk.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

Any container taken into custody by the police may also be searched in an effort to ascertain if any valuables exist.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

Where a defendant requests a search of his vehicle for inventory purposes, he cannot claim that the officer exceeded his authority where the officer is merely trying to collect defendant's valuables from the vehicle or to protect himself from wrongful accusations.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361

 

It is essential that a police department have some policy concerning the opening of closed containers during an inventory search to prevent the search from becoming a ruse for a general rummaging in order to discover incriminating evidence.  The policy or practice governing inventory searches should be designed to produce an inventory.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.) 

 

Pennsylvania courts have ruled that an inventory search can be reasonable if it is first shown not to be a disguised attempt to discover evidence of a crime without the necessity of a warrant.  Commonwealth v. Letosky, 55 Som. L.J. 31 (April 28, 1998) (Gibson, J.)

 

To determine whether a police search of an automobile was for the purpose of taking inventory, and not for gathering incriminating evidence, the court must consider the facts and circumstances, including the scope of the search, the procedure utilized in the search, whether any items of value were in plain view, the reasons and nature of the custody, the anticipated length of custody, and any other factors which the court deems important in its consideration.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.) 

 

A defendant's motion for suppression may be denied on the basis that the discovery of drugs during an inventory search of a vehicle was constitutional, but suppression may be granted based upon the lack of a police department policy concerning the opening of closed containers.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.) 

 

Where a vehicle was left abandoned in a third party's front yard, the motives and actions of the police in removing the vehicle and performing an inventory search were a reasonable and proper exercise of common sense.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.)

 

An inventory search of an automobile is reasonable if: the vehicle was lawfully within the custody of the police; the search was conducted for the protection of the owner's property, while it remained in police custody; the search is for the protection of the police against claims or disputes over lost or stolen property; the search protects the police from potential danger; and/or the search was pursuant to ascertaining the identity of the owner.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.) 

 

In the interests of public safety, automobiles are often taken into police custody following vehicle accidents as part of care taking and traffic control activities of the police.  This permits the uninterrupted flow of traffic and can aid in preserving evidence.   Commonwealth v. Letosky, 55 Som. L.J. 31 (April 28, 1998) (Gibson, J.)An investigative detention is improper when an officer does not have the requisite reasonable suspicion to justify the stop. Furthermore, a driver's consent to search their car is invalid when there is insufficient attenuation between the consent and the illegal detention to purge the taint of the Officers' illegal conduct.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

SEARCH & SEIZURE – PLAIN VIEW & PLAIN FEEL DOCTRINES

 

The plain view exception is ordinarily applicable where there has been a physical intrusion into a protected area prior to the observation of the evidence, or where physical intrusion for a search or seizure follows an initial (non-search) observation from outside a protected area.  Commonwealth v. Lassinger (No. 1), 51 Som. 340 

 

The plain view exception does not apply where the officer could not have viewed the evidence without a warrantless physical intrusion and where the officer did not yet have probable cause to search the vehicle.  Commonwealth v. Lassinger (No. 1), 51 Som.L.J. 340

 

The examination of the exterior of a vehicle is not a search, but where an officer does not yet have probable cause and where the officer must open the door of the vehicle to view the evidence, the act of obtaining that evidence constitutes a search.  Commonwealth v. Lassinger (No. 2), 51 Som.L.J. 356

 

Items found in plain view may be seized without a warrant.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361  

 

In order for the plain view exception to apply, the incriminating character of the evidence must be apparent, or in other words, the Commonwealth must have probable cause to believe that the item found is evidence of a crime.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361 

 

Where item displays no markings or identification and does not appear suspicious enough to provide officer with probable cause, the search cannot be justified under the plain view exception to the warrant requirement.  Commonwealth v. Gindlesperger, 51 Som.L.J. 361

 

Under the plain view doctrine, the warrantless seizure of a piece of evidence that is in plain view is permissible when two criteria are met.  First, the evidence must be seen from a lawful vantage point.  Second, it must be immediately apparent to the viewer that the object observed is incriminating evidence.  Com. v. Ross 58 Som.L.J. 135 (2001) (J. Cascio). 

 

Police must have probable cause to believe that the evidence in question is contraband or incriminating.  Com. v. Ross 58 Som.L.J. 135 (2001) (J. Cascio). 

 

Where police lack probable cause to believe that the object in plain view is contraband without conducting some further search, the plain view doctrine cannot justify its seizure.  Any further search, such as the moving or manipulation of the object in question, violates the theory that the object was in plain view and its incriminating nature was immediately apparent.  Com. v. Ross 58 Som.L.J. 135 (2001) (J. Cascio). 

 

The Pennsylvania Supreme Court recently adopted the plain feel doctrine.  The plain feel doctrine allows for the admission of evidence obtained during a pat-down search of a suspect's outer clothing for weapons when the incriminating nature of the contraband is immediately apparent.  Com. v. Ross 58 Som.L.J. 135 (2001) (J. Cascio). 

 

The plain feel doctrine permits an officer to invoke probable cause to search during a          frisk as the result of his sense of touch coupled with the surrounding circumstances             and his personal knowledge, experience, and common sense.   Commonwealth v. Devon Allan Baskin, 62 Som.L.J. 438 (2006) (Cascio, J.) 

 

An officer must be able to substantiate what it was about the tactile impression of the         object that made it immediately apparent to him that he was feeling contraband.   Commonwealth v. Devon Allan Baskin, 62 Som.L.J. 438 (2006) (Cascio, J.) 

 

Under the plain feel doctrine, a police officer may seize non-threatening contraband detected during a Terry frisk for weapons if the following circumstances exist: (1) the officer is lawfully in a position from which he can detect the presence of contraband. (2) The incriminating nature of the contraband is immediately apparent. (3) The officer has a lawful right of access to the object.  Commonwealth v. Travis Lee Bohn, 62 Som.L.J 458 (2005) (Cascio, J.) 

 

An officer must be able to substantiate what it was about the tactile impression of the object that made it immediately apparent to him that he was feeling contraband.   Commonwealth v. Travis Lee Bohn, 62 Som.L.J 458 (2005) (Cascio, J.) 

 

Neither the Fourth Amendment nor the Commonwealth requires the exclusion of evidence obtained during a plain feel seizure in the course of a weapons frisk that occurs pursuant to an investigatory detention.  Commonwealth v. Travis Lee Bohn, 62 Som.L.J 458 (2005) (Cascio, J.)

 

SEARCH & SEIZURE – SEARCH INCIDENT TO ARREST

 

Where a person is lawfully arrested and taken into custody, the officer is entitled to make a full search of arrestee's person incident to that lawful arrest.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

A "full" search of an arrestee's person incident to a lawful arrest includes a search into a cigarette pack that is found on the arrestee's person at the time of the arrest.  Com. v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.).

 

SEARCH & SEIZURE – STANDING – REASONABLE EXPECTATION OF PRIVACY

 

The first step in a Fourth Amendment and Article 1, Section 8 analysis is to determine whether the defendant has standing and whether a ‘search’ has occurred. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Standing can be established by demonstrating: “(1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged includes as an essential element the element of possession; or (4) a proprietary or possessory interest in the searched premises.” Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Once standing is established, the defendant must show that he had a legitimate expectation of privacy in the area searched or thing seized. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

A defendant has an expectation of privacy in an area or thing searched when he establishes by his conduct that he has a subjective expectation of privacy in it and that subjective expectation of privacy is one that society recognizes as reasonable. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Passengers in a motor vehicle have limited rights when it comes to a search of the vehicle that they occupy. Passengers still must establish that they have an expectation of privacy in the searched vehicle or thing. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Pennsylvania law does not generally recognize that a passenger has an expectation of privacy in the passenger compartment or trunk of the vehicle. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

A driver can generally consent to a search of the entire vehicle without a passenger’s privacy rights being affected. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

The privacy rights of regular motor vehicle passengers are generally analogized to overnight house guests. Generally, “a casual visitor who is merely present in [another] person's home does not have a legitimate expectation of privacy to contest an illegal entry by police into that home.” Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

An overnight guest must establish a separate expectation of privacy that is “significant and current” in the premises. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

We recognize that taxicab passengers pay a fare to occupy the vehicle. This, perhaps, makes them more analogous to occupants of a motel or hotel. Generally, Pennsylvania finds that guests in a hotel have a legitimate expectation of privacy in the room during the time they are paying customers. This analogy, however, is not entirely directive for situations involving taxicab occupants. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Since the driver maintains possession of the cab and the taxicab passengers pay for the service (as opposed to the space itself), we cannot find that a taxicab passenger has a legitimate expectation of privacy in the taxicab itself. Therefore, the taxicab driver can consent to the search of it. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Federal law recognizes that passengers in a motor vehicle may maintain a reasonable expectation of privacy in the contents of luggage that is inside the vehicle. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

The Viall court recognized that if the passenger placed an item in a vehicle but did not shield it from the view of others, there would be no reasonable expectation of privacy. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

It stands to reason that a passenger who does shield the contents of a package from the view of others may maintain an expectation of privacy in that package, despite it being in the trunk. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Here, Defendant did not have a legitimate expectation of privacy in the trunk of the taxicab itself.

Once a person expresses this expectation of privacy through claimed ownership in luggage, a search occurs if this privacy right is reasonably accepted by society. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Personal possessions are constitutionally protected under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution until the owner “meaningfully abdicates his or her control, ownership, or possessory interest in them.” Sell, 470 A.2d at 469. As such, a person can abandon the property, but it is only then that the expectation of privacy is removed. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

Based on the presumption related to claimed personal belongings, we conclude that society does recognize an expectation of privacy in claimed personal belongings, irrespective of whether they are found in the trunk of a taxicab. Com. V. Edwards, 65 Som.L.J, 48 (2011)(Cascio, J.).

 

SEARCH & SEIZURE – TERRY STOP (STOP AND FRISK)

 

As a fundamental principle of American law, a search warrant must be obtained in order for a police officer to lawfully search a person or his property; however a warrantless search is constitutional if incident to lawful arrest and stop and frisk searches are permissible in certain cases.  Commonwealth v. Stapleton, 51 Som.L.J. 276 

 

A police officer may legitimately pat-down a person where the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous. Commonwealth v. Stapleton, 51 Som.L.J. 276 

 

Where the only charge contemplated was for the summary offense of underage drinking, and the officers otherwise had no probable cause to arrest, the search cannot be justified as incident to the commission of the summary offense.  Commonwealth v. Stapleton, 51 Som.L.J. 276 

 

Under the circumstances, the search of the contents of defendant's wallet did not meet the prerequisites for a stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968) and Commonwealth v. Stapleton, 51 Som.L.J. 276 

 

A warrantless search may also be permissible under the stop and frisk exception.  In Re: Cox, 52 Som.L.J. 211

 

Even in the absence of probable cause, a police officer may legitimately pat-down a person where the officer observes unusual activity, which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing, may be armed and dangerous.  In Re: Cox, 52 Som.L.J. 211 

 

Traffic stops, like Terry stops, constitute investigative rather than custodial detentions, unless under the totality of the circumstances the conditions and duration of the detention become the functional equivalent of an arrest.   Commonwealth v. Wilikins, 62 Som.L.J. 52 (September 9, 2005) (Cascio, J.)  

 

Reasonable suspicion exists only where the officer is able to articulate specific observation which, in conjunction with reasonable inferences derived from those observations, led him to reasonably conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.   Commonwealth v. Wilikins, 62 Som.L.J. 52 (September 9, 2005) (Cascio, J.) 

 

The scope of a Terry search is limited; the sole justification for the search is the protection of the police officer and others nearby, it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of a police officer.  Commonwealth v. May, 60 Som.L.J. 99 (2002) (Gibson, J.). 

 

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.  Commonwealth v. May, 60 Som.L.J. 99 (2002) (Gibson, J.). 

 

Police do not have the right to reach inside of defendant's pocket and seize the pipe and marijuana when the incriminating nature of the contraband was not immediately apparent.  Commonwealth v. May, 60 Som.L.J. 99 (2002) (Gibson, J.). 

 

Where evidence is obtained subsequent to an illegal search, such evidence will be held inadmissible unless it is sufficiently distinguishable from the original illegality.  Commonwealth v. May, 60 Som.L.J. 99 (2002) (Gibson, J.). 

 

A proponent of subsequently discovered evidence must demonstrate that it is not tainted by the illegal search.  Commonwealth v. May, 60 Som.L.J. 99 (2002) (Gibson, J.). 

 

The right of citizens to be free from personal intrusions remains crucial to courts in the Commonwealth and therefore requires law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive.  Commonwealth v. Travis Lee Bohn, 62 Som.L.J 458 (2005) (Cascio, J.) 

 

An officer who makes a valid investigatory stop may perform limited search or frisk of the suspect for weapons, if he reasonably believes that his safety or the safety of others is threatened.  Commonwealth v. Travis Lee Bohn, 62 Som.L.J 458 (2005) (Cascio, J.)

 

SEARCH AND SEIZURE – TRAFFIC (VEHICLE) STOPS – THE BASIS FOR THE STOP

 

The test for determining whether a police officer has reasonable grounds to believe that a driver has operated a vehicle while under the influence of alcohol is a factually sensitive test, which is to be conducted by taking into account all relevant circumstances and by using sound reasoning.  Com. v. Peters 58 Som.L.J. 49 (1998). 

 

The standard articulated in Commonwealth v. Murphy, 54 Som.L.J. 176 (1996) is applicable to the case at bar.  Commonwealth must overcome the "evidentiary hurdle" required to establish reasonable grounds to suspect that Defendant, who was located post-accident, was under the influence of alcohol at the time he was driving his vehicle.  Com. v. Peters 58 Som.L.J. 49 (1998). 

 

The test for determining whether an officer had reasonable grounds to believe that a motorist operated a motor vehicle while under the influence of alcohol is simply that ‘if a reasonable person in the position of the arresting officer, viewing the facts and circumstances as they appeared to the arresting officer, could have concluded that the motorist operated the vehicle while under the influence of alcohol, reasonable grounds are established.' Murphy, 54 Som. L. J. 176; Com. v. Peters 58 Som.L.J. 49 (1998). 

 

‘Meager facts' of glassy eyes and the appearance of intoxication approximately one hour after the accident did not establish ‘reasonable grounds to believe that defendant had been driving under the influence.'  Murphy, 54 Som.L.J. 176; Com. v. Peters 58 Som.L.J. 49 (1998). 

 

Factual circumstances in the case at bar differ substantially from the situation presented in Murphy.  Witness stated that he had seen Defendant in his car at the accident scene, near the time when Defendant clearly conveyed to the trooper that he had been driving.  Further, Defendant advised trooper that he had not consumed any alcohol since 1:00 a.m. on that morning, therefore negating any possibility that Defendant had become intoxicated after the accident.  Trooper had reasonable and articulable suspicion under these circumstances to believe Defendant was driving under the influence of alcohol at the time of the accident.  Com. v. Peters 58 Som.L.J. 49 (1998). 

 

The facts in the case sub judice constitute more than meager facts.  Application of Murphy standard, therefore, to facts at bar, lead to a different conclusion.  Com. v. Peters 58 Som.L.J. 49 (1998). 

It is reasonable for a police officer to stop a vehicle in order to investigate why the vehicle was in a prohibited area.  Com. v. Titus, 58 Som.L.J. 6 (2000) (J. Gibson) 

 

A police officer may lawfully stop a vehicle if the officer has "reasonable, articulable facts to suspect a violation of the Vehicle Code, 75 Pa.C.S.A. §6308(b).  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

To justify an investigatory stop based on alleged violation of the Motor Vehicle Code, the police officer must have articulable and reasonable grounds to suspect a violation.

 

Reasonable probable cause exists to stop an individual's vehicle where the individual's car crossed over the double yellow lines on at least two occasions, crossed over both double lines on a third occasion a distance of at least two tire widths, and again crossed the double center line by at least two tire widths while traversing a cure in the road.  Commonwealth v. Brothers, Joseph Russell, 61 Som.L.J. 50 (2002)(Fike,,P.J.) 

 

When determining the validity of a traffic stop, the court is not determining whether a conviction should occur, but whether probable cause exists to justify the traffic stop.  Commonwealth v. Brothers, Joseph Russell, 61 Som.L.J. 50 (2002)(Fike,,P.J.) 

 

Even if probable cause exists to justify a traffic stop, a full hearing may result in an acquittal of a defendant if facts are presented to refute the Commonwealth's contention or explain the defendant's conduct.  Commonwealth v. Brothers, Joseph Russell, 61 Som.L.J. 50 (2002)(Fike, P.J.) 

 

Articulable and reasonable grounds must exist to justify an investigatory stop based on a violation of the Motor Vehicle Code.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003) (Fike, II, P.J.) 

 

Trooper's observation of the defendant driving through a steady red light provided the necessary suspicion to justify a vehicle stop.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003) (Fike, II, P.J.) 

 

"Police officers are vested with authority to stop a vehicle if there are ‘articulable and reasonable grounds to suspect a violation of the Vehicle Code.'" Commonwealth v. Farrell, 448 Pa. Super. 492, 672 A.2d 324 (1996).  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.)

 

Here the Trooper suspected that a violation of 75 Pa.C.S.A. 3323(b) (Duties at Stop Signs) had occurred when he observed the defendant's vehicle stop beyond a stop sign and within the path of oncoming traffic, which provided the necessary probable cause to stop the vehicle.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.)

 

To justify an investigatory vehicle stop based on an alleged vehicle code violation, a police officer must demonstrate that there existed at the time of the stop probable cause to believe that a violation had occurred.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004) (Fike, II, P.J.) 

 

The probable cause standard is to be used in vehicular stops unlike the reasonable suspicion standard generally used in Terry stops.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004) (Fike, II, P.J.)

 

The mere crossing of a line on a highway is not enough to supply an officer with probable cause to suspect a violation of 75 Pa.C.S.A. § 3309(1).  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004) (Fike, II, P.J.)

 

In Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001), the Pennsylvania Superior Court recently applied the probable cause standard in regard to an alleged violation of § 3309(1), and noted that the crossing of lines on a highway must be sufficiently erratic under the circumstances to suggest some impairment of the driver or a safety hazard.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.)

 

A minimal intrusion into the adjacent lane of travel, which does not cause a hazard does not meet the probable cause standard without any further observations by the officer to suspect a violation of 75 Pa.C.S.A. § 3309(1).  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.) 

 

Where the initial stop is unconstitutional, the exclusionary rule precludes the admission of evidence at trial so long as the chain of events between the initial stop and the discovery of the evidence is not too attenuated.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.) 

 

Before the government may single out one automobile to stop, there must be specific facts justifying this intrusion.  To hold otherwise would be to give the police absolute, unreviewable discretion and authority to intrude into an individual's life for no cause whatsoever.  Commonwealth v. Wilikins, 62 Som.L.J. 52 (September 9, 2005) (Cascio, J.)  

 

Section 6308(b) of the Vehicle code states: whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. 75 Pa. C.S. § 6308 (b).   Commonwealth v. Wilikins, 62 Som.L.J. 52 (September 9, 2005) (Cascio, J.) 

 

An officer must have only reasonable suspicion, and not probable cause, to believe the vehicle or the driver was in violation of some provision of the Vehicle Code in order to conduct a traffic stop. Commonwealth v. Wilikins, 62 Som.L.J. 52 (September 9, 2005) (Cascio, J.) 

 

In order to stop a vehicle in this Commonwealth, a police officer need not possess probable cause, but instead only reasonable suspicion that a violation of the Motor Vehicle Code is occurring or has occurred.  75 Pa. C.S.A. § 6308 (b).  In re: A.S.H. 62 Som.L.J. 70 (September 16, 2005) (Cascio, J.) 

 

Vehicle Code violations are generally strict liability or per se infractions regardless of the driver's lack of culpability or any explanation supporting his failure to comply. In re: A.S.H. 62 Som.L.J. 70 (September 16, 2005). (Cascio, J.)

 

A police officer need only possess a reasonable suspicion that the motorist is violating the Motor Vehicle Code before he or she may conduct a traffic stop; the officer is not required to be certain in his or her belief.  Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.)

 

Pa.R.Crim.P. 109 requires the defendant to assert his defense of non-compliance with § 1543(d) at the preliminary hearing stage and to demonstrate that he suffered a manifest and palpable harm as a result of the alleged noncompliance. Commonwealth v. Stephan Blake, 64 Som.L.J. 1 (2007) (Cascio, P.J.).

 

SEARCH AND SEIZURE – TRAFFIC (VEHICLE) STOPS – THE NATURE OF THE DETENTION

 

It is an accepted principle that when conducting a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check and issue a citation.  Commonwealth v. Heinrich, 52 Som.L.J. 24 

 

Although an ordinary traffic stop significantly curtails the freedom of action of a driver and the passengers of the motor vehicle such detention amounts to nothing more than an investigative stop.  Commonwealth v. Heinrich, 52 Som.L.J. 24 

 

The Fourth Amendment of the United States Constitution guarantees citizens the right ot be secure in their homes and property against warrantless searches and seizures without probable cause.  Exceptions to the Fourth Amendment requirement have allowed warrantless examinations of automobiles in circumstances where a warrantless search of a home or office might not be permissible.  Commonwealth v. Letosky, 55 Som.L.J. 31 (April 28, 1998) (Gibson, J.) 

 

A lawful traffic stop may be followed by a consensual encounter and the determination of whether the second phase of the stop is a consensual encounter required entail an examination of the totality of circumstances, including an examination of events both before and after the end point of the initial detention.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

The factors to be considered when determining whether the second phase of a stop is consensual are:(1) the location of the encounter, (2) physical contact or police direction of the citizen's movements, (3) the demeanor of the officer, (4) the manner of expression and content of interrogatories used by the officer, (5) the presence or absence of police excesses, (6) the existence and character of the initial detention, including the coercive impact of the initial display of authority of the continuing encounter, and finally, (7) the "seamless" nature of the transaction from investigative detention to consensual encounter.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

There must be an endpoint to an investigative detention and the communication of such an end point by an officer to a driver is of the utmost significance.   Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

The presence of an express admonition that the driver is free to depart is "a potent, objective factor" favoring a finding of objective circumstances that would demonstrate to a reasonable citizen that he or she is no longer subject to domination by the police.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

When a traffic stop is not an investigative detention, but a mere consensual encounter, the officer is not required to show reasonable suspicion of criminal activity.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

Even when a traffic stop results in a mere consensual encounter, the voluntariness of the consent by a driver to be searched still remains at issue.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.). 

 

When there is a definite break after the initial traffic stop phase and the officer returns the driver's documents, issues a warning, and informs them that they are free to leave and the defendant returns on his own to talk to the officer, there is only one officer involved, and the officer does not engage in an excessive show of authority or other heavy handed conduct, the second phase of the stop is a mere encounter rather than an investigative detention or seizure and the driver's consent to search was voluntary and not tainted by unlawful detention.  Commonwealth v. Kimmel, 60 Som.L.J. 29 (2001) (Fike, P.J.).  

 

If an encounter meets the constitutional standards for validity it then becomes possible for a citizen to waive other rights to be free from search and seizure through voluntary consent; however, where the encounter is not lawful, a citizen's voluntary consent to waive constitutional rights will generally be invalid.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.) 

 

"The test for the validity of a consent to search is the same for both the Fourth Amendment and Article I, Section 8, i.e., that the consent is given voluntarily.  Accordingly, the Commonwealth must prove ‘that a consent is the product of essentially free and unconstrained choice - not the result of duress or coercion, express or implied, of a will overborne - under the totality of the circumstances.'" Commonwealth v. Mack, 568 Pa. 329, 796 A.2d 967 (2002).  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004) (Fike, II, P.J.) 

 

When confronted with a constitutional challenge to the consent given to search a vehicle after an initially lawful traffic stop a court must determine (1) whether a second encounter occurred between the parties, (2) if so, the constitutionality of the second encounter, and (3) in the case of a second lawful encounter, whether the consent to search was voluntary.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.)

 

Numerous factors are to be considered when making these types of determinations.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.) 

 

When these factors are analyzed to determine the type and constitutionality of an encounter, an objective test entailing a determination of whether a reasonable person would have believed that he was free to leave under the totality of the circumstances is used.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004)(Fike, II, P.J.) 

 

Absent any threatening or coercive behavior by law enforcement officers, the mere presence of three Troopers and three police cruisers at a traffic stop is insufficient to create a seizure of the defendants.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004) (Fike, II, P.J.)

 

Where there is no evidence of police coercion and where the officer's demeanor was calm and professional, a reasonable person would not believe that she was not free to leave; therefore, the encounter was consensual.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004) (Fike, II, P.J.) 

 

Where the total coercive effect of the encounter was minimal and does not demonstrate that the defendant's will was overborne, the defendant will be deemed to have voluntarily consented to a search of her vehicle, and, consequently, the evidence subsequently discovered will not be suppressed.  Commonwealth v. Ulery, 61 Som.L.J. 389 (2004) (Fike, II, P.J.)

 

If an encounter meets the constitutional standards for validity it then becomes possible for a citizen to waive other rights to be free from search and seizure through voluntary consent; however, where the encounter is not lawful, a citizen's voluntary consent to waive constitutional rights will generally be invalid.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.) 

 

Consent given during an unlawful detention "even if voluntarily given, will not justify the otherwise illegal search unless the Commonwealth can demonstrate that [the] consent was an ‘independent act of free will' and not ‘the product of the illegal detention;'" "three factors [are] relevant . . . : the temporal proximity of the detention and consent, any intervening circumstances, and . . . the purpose and flagrancy of the officer's unlawful conduct."  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.) 

 

"The test for the validity of a consent to search is the same for both the Fourth Amendment and Article I, Section 8, i.e., that the consent is given voluntarily. Accordingly, the Commonwealth must prove ‘that a consent is the product of essentially free and unconstrained choice - not the result of duress or coercion, express or implied, or a will overborne - under the totality of the circumstances.'" Commonwealth v. Mack, 568 Pa. 329, 796 A.2d 967 (2002).  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004) (Fike, II, P.J.)

 

SEARCH AND SEIZURE – TRAFFIC (VEHICLE) STOPS – THE ULTIMATE ARREST

 

Whether or not field sobriety tests are properly administered is not necessarily a precondition for the existence of probable cause to arrest.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

Reasonable grounds to arrest does not require the failure of field sobriety tests.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) 

 

A warrantless arrest in a suspect's home must withstand constitutional scrutiny under the test set out by the Pennsylvania Supreme Court in Commonwealth v. Williams, 396 A.2d 1177 (Pa. 1979), U.S. cert. Den. 446 U.S. 912, such an arrest is only subject to probable cause scrutiny where the police have been invited inside a home by a suspect.  Commonwealth v. Zerfoss, 60 Som.L.J. 136 (2002) (Cascio, J.). 

 

The defendant's erratic driving may be combined with the smell of alcohol, bloodshot eyes and/or slurred speech to establish the probable cause necessary to arrest.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.)  

 

Where the defendant was observed to have (1) glassy and bloodshot eyes, (2) slurred speech, (3) erratic driving, and (4) an inability to maintain a balanced stance the requisite probable cause for arrest existed without consideration of the field sobriety test results.  Commonwealth v. Beener, Jason D., 61 Som.L.J. 236 (2003)(Fike, II, P.J.) Commonwealth v. Brothers, Joseph Russell, 61 Som.L.J. 50 (2002) (Fike,II,P.J.) 

 

A State Trooper's observation of an individual's bloodshot and glassy eyes, odor of alcohol on the breath, and slurring of speech, coupled with the failure of the field sobriety tests, provided a Trooper with the requisite cause for arrest.  Commonwealth v. Brothers, Joseph Russell, 61 Som.L.J. 50 (2002)(Fike,II,P.J.) 

 

The test to determine probable cause is "whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.  Commonwealth v. Dutrieulle, 61 Som.L.J. 447 (2004)(Fike, II, P.J.) 

 

SOMERSET RULES OF CRIMINAL PROCEDURE

 

Som.R.Crim.P. 708.1.C.2 provides that when the defendant is detained pending a probation revocation hearing, defendant shall not continue to be detained for revocation hearing for more than thirty (30) days (10 days for a juvenile) after the detention hearing.  Commonwealth v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

The 30-day requirement contained in Som.R.Crim.P. 708.1 is a safeguard against the prolonged detention of defendants who are being detained for revocation hearing and does not warrant the dismissal of the petition for revocation of parole/probation in the event that the defendant is detained for longer than 30 days but, instead, only warrants that the defendant then be released from detention.  Commonwealth v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.). 

 

According to Som.R.Crim.P. 708.2, where the defendant is not being detained while awaiting a probation revocation hearing, there is no requirement that the hearing be held within 30 days.  Commonwealth v. Reffner, 60 Som.L.J. 112 (2002) (Cascio, J.).

 

SUBPOENAS

 

A subpoena is "a writ commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply."  Black's Law Dictionary, 7th ed. 1999.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

An accused possesses the right to have compulsory process for obtaining witnesses in his/her favor.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

In Pennsylvania, the right of the accused to compulsory process is provided for in Article I, § 9 of the Pennsylvania Constitution.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

A subpoena may only be issued when is a pre-existing matter or case pending before the court.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

In Pennsylvania, the accused's rights to compulsory process attach pre-trial.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

"The issuing authority shall issue such process as may be necessary for the summoning of witnesses for the Commonwealth or the defendant." Pa.R.Cr. P. 545.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

"Isssuing authority" is "any public official having the power and authority of a magistrate, a Philadelphia bail commissioner, or a district justice."  Pa.R.Cr.P. 103.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

"A subpoena in a criminal case shall order the witness named to appear before the court at the date, time and place specified, and to bring any items identified or described.  The subpoena shall also state on whose behalf the witness is being ordered to testify and the identity, address, and phone number of the attorney, if any, who applied for the subpoena."  Pa.R.Cr.P. 107.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

The customs and practice with respect to subpoena procedure are longstanding and well known in judicial proceedings.  When any party to a judicial proceeding desires a subpoena to compel the testimony of a witness or the production of some matter, he sees the appropriate officer of the court to secure a blank subpoena form.  He then fills in the appropriate blank spaces and has the form properly served.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

Settled usage universally acquiesced in throughout the Commonwealth over a long period of time, may assume the proportions of a common law rule.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.). 

 

It is clear that subpoena practice in our Commonwealth has so evolved and may be considered to be a common law rule. Our legislature, which has not acted to change the practice over the great length of time it has existed must be held to have acquiesced in its continuance.  In Re: District Justice Sandra L. Stevanus, 60 Som.L.J. 385 (2002) (Gibson, J.).

 

SUPPRESSION OF EVIDENCE

 

Dismissal of the charges in the cases at bar was an improper remedy, and the Court hereby modified the previous Order to correct this error.  In those cases involving arrest in the absence of statutory authority, suppression of the evidence is the appropriate remedy. Commonwealth v. Charlton, 63 Som. L.J. 433 (2008)(Cascio, P.J.)

 

WARRANTLESS ARREST – DUI ON SUSPENDED LICENSE

 

      A person who has an amount of alcohol by weight in his blood that is equal to or greater than .02% at the time of testing…and who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition [of DUI-related offenses]…shall…be guilty…[of a crime].  75 Pa.C.S.A. § 1543(b)(1.1). Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.).

 

In addition to any other powers of arrest, a police officer is authorized to arrest an individual without a warrant if the officer has probable cause to believe that the individual has violated section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock), regardless of whether the alleged violation was committed in the presence of the police officer.  75 Pa.C.S.A. § 3811(a). Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.).

 

In determining whether probable cause exists to justify a warrantless arrest, the totality of the circumstances must be considered. Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.).

 

Under the totality of the circumstances test, “probable cause exists where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.).

 

Enactment of Vehicle Code § 1543 (b)(1.1) placed DUI-related suspended drivers on notice that driving after consuming even a small amount of alcohol can lead to prosecution. Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.).

 

It takes only a small amount of alcohol in one’s system to reach the .02% threshold. A mild odor of alcohol on a driver’s breath constitutes probable cause to believe that driver has reached the .02% threshold. Commonwealth v. Fulton, 63 Som.L.J. 460 (2007)(Geary, J.).