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Suppression Court credits details in police report over differing officer accounts at suppression hearing

Cynthia Caul

Commonwealth v. Shabezz, --- A.3d --- , 2015 WL 9304336 (Dec. 21, 2015) 

Sure, Shabezz is a good defense case simply because it represents another example of a published opinion where the Superior Court affirmed the trial court’s grant of suppression because the defendant’s investigatory detention was unsupported by reasonable suspicion.  But the most interesting part of Shabezz is that the trial court, after hearing testimony at a suppression hearing, rejected those portions of police officer testimony that were contradicted by, or omitted from, the officers’ contemporaneously-prepared police reports. 

Indeed, the suppression Court credited only those facts actually contained in the officers’ contemporaneous reports.  It disregarded the additional and/or different facts alleged by the officers at the suppression hearing that weren’t contained in their police reports.  And, because the facts contained in the reports did not rise to the level of reasonable suspicion, the Court granted defendant’s motion to suppress.  The Superior Court, applying its necessarily deferential standard of review to the trial court’s credibility and fact determinations, affirmed.   

"Knock and announce" rule violations require suppression

Robert Perkins

In an important search and seizure case decided last week, the Superior Court held that any violation of the “knock and announce” rule requires suppression.  A link to the Frederick decision is here.  While the knock and announce rule is codified in the Rules of Criminal Procedure – see Pa.R.CrimP. 207 – the Superior Court also took the occasion to explain and clarify the Rule’s contours. 

[T]he [knock and announce] rule requires that police officers announce their identity, purpose and authority and then wait a reasonable amount of time for the occupants to respond prior to entering any private premises.”  The rule is “relaxed only in the presence of exigent circumstances.” 

There are only four recognized exigent circumstances:

1. the occupants remain silent after repeated knocking and announcing;

2. the police are virtually certain that the occupants of the premises already know their purpose;

3. the police have reason to believe that an announcement prior to entry would imperil their safety; or

4. the police have reason to believe that evidence is about to be destroyed.

The Frederick Court further explained that “[t]he purpose of the ‘knock and announce’ rule is to prevent violence and physical injury to the police and occupants, to protect an occupant's privacy expectation against the unauthorized entry of unknown persons, and to prevent property damage resulting from forced entry.”  These important purposes may “be achieved only through police officers’ full compliance.”  Consequently, “the remedy for noncompliance with the knock and announce rule is always suppression.” 


Superior Court Clarifies the “Collective Knowledge Doctrine”

Cynthia Caul

In a thoughtful opinion issued last week, Judge Wecht clarified the scope of the “collective knowledge doctrine” in Pennsylvania.  The case is titled Commonwealth v. Yong, -- A.3d --, 2015 WL 4366472 (Pa. Super. July 16, 2015). 

 Under the collective knowledge doctrine, “[w]hen a police officer instructs or requests another officer to make an arrest, the arresting officer stands in the shoes of the instructing officer and shares in his or her knowledge.”  Thus, when the ‘instructing officer’ possesses sufficient probable cause to arrest, her knowledge is imputed to the arresting officer acting at her direction, and the arrest is lawful. 

 Yong is significant because it explains the collective knowledge doctrine’s limits.  In Yong, the Philadelphia Police obtained a warrant to search a home for drugs.  When the Police executed the warrant, they found Mr. Yong inside.  Philadelphia Officer Gibson immediately arrested Mr. Yong.  During a search incident to arrest, Officer Gibson recovered a firearm. 

 One of the other officers who executed the warrant – Officer McCook – possessed sufficient knowledge to trigger probable cause to arrest Mr. Yong.  Officer Gibson, however, did not.  At the suppression hearing, moreover, the Commonwealth offered no evidence to show that Officer McCook instructed Officer Gibson to arrest Mr. Yong.

 Mr. Yong moved to suppress the firearm, alleging that his arrest was unlawful because Officer Gibson did not possess probable cause to arrest him.  The trial court denied Mr. Yong’s motion.  Mr. Yong appealed

 In the Superior Court, the Commonwealth argued that “Officer McCook’s knowledge of Yong’s participation in [an] earlier drug transaction was imputed to Officer Gibson under the ‘collective knowledge doctrine.’”  Thus, according to the Commonwealth, the arrest was indeed supported by probable cause. 

 The Superior Court rejected the Commonwealth’s proposed expansion of the collective knowledge doctrine and reversed.  In doing so, the Court emphasized that, at the suppression hearing, the Commonwealth failed to establish that Officer Gibson arrested Mr. Yong at Officer McCook’s direction.  Consequently, the collective knowledge doctrine did not apply.   


Cynthia Caul

In a post-Alleyne world, decisions like the one issued by the PA Supreme court in Commonwealth v. Hopkins highlight a changing of the tide regarding the applicability of minimum mandatory sentences.  

 In a decision published June 15, Justice Todd authored the majority opinion ruling that sentencing provisions found under 18 Pa. C.S. § 6317(a), also known as the Drug-Free School Zone Act, which apply higher mandatory sentences for drug trafficking crimes that occur within school zones are unconstitutional.  The court relied heavily on the reasoning of Alleyne

 In Alleyne, the United States Supreme Court held that under the Sixth Amendment of the United States Constitution a jury must find beyond a reasonable doubt any facts that increase a mandatory minimum sentence. 

 Although recognizing the effect of the Alleyne decision on the Drug- Free School Zone Act, the Commonwealth argues in Hopkins that such a problem can be alleviated by severing the provisions of the Drug-Free School Zone Act that are in direct conflict with Alleyne or by providing juries with special verdict forms.

 The PA Supreme Court disagrees such remedies bring the statute within compliance with Alleyne.  The Court finds that after stripping the Drug-Free School Zone Act of its unconstitutional provisions, the remaining sections would be incapable of complying with the General Assembly’s intentions that the Act was promulgating.  The Court continues by stating that the use of special verdicts was not contemplated by the legislature when the Drug-Free School Zone Act was brought to fruition and would be improper if provided to a jury under the requirements of Alleyne

 Following the ruling in Alleyne, Hopkins is perhaps one of the first dominos the PA Supreme Court has tipped over as the legal community begins to see the evaporation of an era of sentencing courts constrained by mandatory minimums.  

Pennsylvania’s High Court confirms that Pennsylvania’s mandatory minimum sentencing laws are unconstitutional

Cynthia Caul

In a long-awaited decision handed down this week, the Supreme Court ruled, in effect, that the bulk of Pennsylvania’s mandatory minimum sentencing laws are unconstitutional.  In doing so, Pennsylvania’s High Court largely followed the reasoning utilized by the Superior Court in its line of Alleyne decisions.  This important case is titled Commonwealth v. Hopkins

 The Legal Intelligencer published an article containing a nice synopsis of Hopkins.  The decision’s importance was also aptly described by a Philadelphia prosecutor who submitted a brief in Hopkins that argued in favor of retaining the mandatory sentencing laws: 

"[Hopkins is] going to strike them all down . . . . 
 Going forward, as far as applying the existing                            mandatory statutes, that’s not going to be 

 A link to the Intelligencer article is available here:


Cynthia Caul

We’ve seen it a million times (or so it seems).  The Police spot a car whose passengers they suspect may be carrying drugs or guns.  The Police want to stop and search it.  But they lack reasonable suspicion or probable cause to believe that the passengers are engaged in any specific criminal activity.  So, instead, the Police will first stop the car for a purported traffic violation, then, following the stop, try to come up with a valid reason to search it.

In a typical pre-textual traffic stop, the Police will first question the driver and passengers, and run their criminal backgrounds.  After several minutes – and if no incriminating evidence jumps out at them – the Police then hand the driver a ticket or warning, and tell him he’s free to go.  But not really.  Because, seconds after informing the driver he may leave, the Police re-engage him; ask him if there’s any drugs or guns in the car; and, eventually, try to procure his consent to a car search. 

Until recently, the Police and prosecuting authorities were generally successful in upholding these tactics on the basis that the driver ‘voluntarily’ consented to the search.  That should end with the Superior Court’s important decision in Commonwealth v. TAM THANH NGYUEN, 2015 WL 1883050, -- A.3d --, (April 27, 2015). 

In NGYUEN, a Pennsylvania State Police Trooper stopped a car for a traffic violation.  The Trooper accomplished the purpose of the traffic stop, in that he issued the driver a warning, and informed him that he was free to leave.  Thereafter, the driver – who had been asked to exit his car prior to receiving the warning – turned around, walked away from the Trooper, and headed back toward his vehicle.  However, before the driver made it back into his car, the Trooper re-initiated contact, and interrogated him.  The Trooper eventually also requested, and obtained, consent to search.  Following the consent, the Police found drugs, and the front seat passenger was charged with misdemeanor and felony drug possession.  Before trial, the defendant moved to suppress the evidence, but the trial court denied the Motion.  The defendant appealed, and the Superior Court reversed. 

Notably, the Court found that, following the resolution of the reason for the initial traffic stop, the driver was the subject of a second seizure.  Because that seizure was unsupported by reasonable suspicion, the seizure was improper.  Because the driver was unlawfully seized when he gave consent, the consent was invalid.

In short, NGYUEN is a well-reasoned opinion that is likely to be relevant authority in many suppression hearings to come.  

The Supreme Court clarifies Fourth Amendment law as applied to traffic stops

Cynthia Caul

Rodriguez v. United States, 135 S.Ct. 1609 (April 21, 2015)  

At first glance, this case didn’t strike me as all that important.  Rodriguez, read narrowly,  simply stands for the proposition that, when the Police detain a car and its passengers on the side of the road to wait for a K-9 to arrive and sniff around for drugs, the car’s occupants are seized.  But after re-reading the case a couple of times, I’m now convinced that it’s actually much bigger than just another dog-sniff case.  

The hallmark of much Fourth Amendment jurisprudence is the seemingly endless variety of methods Courts use to justify warrantless searches and seizures – and in the process, contribute to the further obfuscation of seemingly simple concepts.  This unfortunate reality makes the clarity and simplicity of the Supreme Court’s discussion of Fourth Amendment law in Rodriguez all the more remarkable: 

We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.

 That’s actually clear, and easy to understand!  When the Police detain a driver longer than necessary to issue a traffic citation or warning, the driver (and any passengers) is seized.  In order for the seizure to be lawful, therefore, the Police will need to establish the requisite reasonable suspicion – based not on hunches and speculation, but on actual facts and evidence – that specific criminal activity is afoot. 

In practice, this means that, when the Police want to take a simple traffic stop, and turn it into a criminal investigation for drugs or other contraband, they better have good reasons to do so.  Otherwise, the Police conduct will be found unlawful, and its fruits suppressed. 


Good Sense: Pennsylvania Enacts 'Good Samaritan' Bill To Help Curb Overdose Deaths

Robert Perkins

On September 30, the Governor signed into law Act No. 136 (previously Senate Bill 1164).  The law represents an important step toward a common sense drug policy.  Before passage of Act No. 136, a person who did the right thing, and called the authorities, when a friend or acquaintance overdosed on drugs was often (and perversely) rewarded with an unwelcome surprise:  drug charges of her own.  The possibility of facing criminal charges, and possible jail time, served as a powerful disincentive to calling 911 - even when medical care was desperately needed.  Act No. 136, whose relevant section is titled “Drug Overdose Response Immunity,“ changes the equation.  This new law instead encourages a person to act the ‘Good Samaritan,’ and call the authorities immediately, when she encounters a possible life-threatening drug overdose.  

While the full text of the bill is available here, what follows is a quick summary of its relevant provisions: 

“A person may not be charged and shall be immune from prosecution for any offense listed in subsection b) and for a violation of probation or parole if the person can establish the following”:


i.     law enforcement officers only became aware of the person's commission of an offense listed in subsection b) because the person transported a person experiencing a drug overdose event to a law enforcement agency, a campus security office or a health care facility; or

ii.     all of the following apply:

1.     the person reported, in good faith, a drug overdose event to a law enforcement officer, the 911 system, a campus security officer or emergency services personnel and the report was made on the reasonable belief that another person was in need of immediate medical attention and was necessary to prevent death or serious bodily injury due to a drug overdose;

2.     the person provided his own name and location and cooperated with the law enforcement officer, 911 system, campus security officer or emergency services personnel; and

3.     the person remained with the person needing immediate medical attention until a law enforcement officer, a campus security officer or emergency services personnel arrived.

b)    The prohibition on charging or prosecuting a person as described in subsection a) bars charging or prosecuting a person for probation and parole violations and for violations of section 13(a)(5), (16), (19), (31), (32), (33) and (37).

c)     Persons experiencing drug overdose events may not be charged and shall be immune from prosecution as provided in subsection b) if a person who transported or reported and remained with them may not be charged and is entitled to immunity under this section.


The state of Pennsylvania’s mandatory minimum sentencing laws (Part II - a discussion of the Valentine decision)

Robert Perkins


In our last blog entry, we explained why, as a result of the Alleyne and Newman decisions, the following Pennsylvania mandatory minimum sentencing laws are unconstitutional:

·      42 P.S. § 9712

·      42 P.S. § 9712.1

·      42 P.S. § 9713

·      42 P.S. § 9718

·      42 P.S. § 9719

·      18 P.S. § 6317

·      18 P.S. § 7508

In a case decided just yesterday – Commonwealth v. Valentine – the Superior Court provided further confirmation of this fact.  Valentine was convicted at trial of robbery.  At sentencing, the trial judge imposed mandatory minimum sentences based on a finding that 42 P.S. §§ 9712 & 9713 applied.  Following Newman – which held that 42 P.S. § 9712.1 was unconstitutional – the Superior Court vacated the defendant’s sentence.  In doing so, the Valentine Court held that, because §§ 9712 and 9713 are structured similarly to § 9712.1, in that each provides that the fact triggering the mandatory minimum is to be found by a judge by a preponderance of the evidence, §§ 9712 and 9713 are also constitutionally infirm.  

Perhaps the most interesting discussion in Valentine is located in Footnote 4.  There, the Court emphasized the remarkable breadth of the Newman Court’s holding.  “[T]he entirety of [Pennsylvania’s procedurally defective] mandatory minimum sentencing statute[s] must be stricken as unconstitutional ….”  Thus, the Court implies, prior Superior Court decisions upholding imposition of a mandatory minimum sentence despite Alleyne – including Watley and Matteson – are overruled. 

The take-away here:  there is simply no way around it, many of Pennsylvania’s mandatory minimum sentencing laws are unconstitutional “in their entirety,” and they cannot be applied regardless of a case’s facts. 


The state of Pennsylvania’s mandatory minimum sentencing laws in the wake of Alleyne and Newman (Part I)

Robert Perkins

As a result of two recently decided (and major) constitutional cases, many of Pennsylvania’s mandatory minimum sentencing laws are now unconstitutional.  The first significant case was Alleyne v. United States, which was decided in 2013.  In Alleyne, the U.S. Supreme Court vacated a defendant’s mandatory minimum prison sentence because, when imposing it, the trial judge followed procedures that violated the defendant’s 6th Amendment right to a trial by jury.  The Alleyne case declared a new constitutional rule relating to sentencing: any fact that triggers a mandatory minimum sentence must be (1) decided by a jury (not a judge) and (2) found to have occurred beyond a reasonable doubt (not by a preponderance of the evidence).

The significance of the Alleyne decision for Pennsylvania criminal defendants was laid bare this past August, when the Superior Court issued its landmark decision in Commonwealth v. NewmanNewman examined the effect of the Alleyne Court’s holding on Pennsylvania’s mandatory minimum sentencing laws, and, in particular, the mandatory sentence prescribed by 42 P.S. § 9712.1 (commonly referred to as the “Drugs and Gun Mandatory”).  The Newman Court ruled that § 9712.1 violates a defendant’s jury trial right because, according to subsection (c) of the statute, the fact triggering the mandatory minimum must be decided by a judge - not the jury - by a preponderance of the evidence - not beyond a reasonable doubt.   As a result, the Court ruled, § 9712.1 is unconstitutional. 

The Newman Court’s rationale applies with equal force to other Pennsylvania mandatory sentencing laws that are structured similarly to § 9712.1.  In other words, any statute that provides that the fact triggering a mandatory minimum sentence is to be decided by a judge, by a preponderance of the evidence, is unconstitutional.  For example, there should be no question that these additional mandatory minimum sentencing laws are also unconstitutional: 

·      42 P.S. § 9712 (providing for a mandatory minimum sentence for “offenses committed with firearms”);

·      42 P.S. § 9713 (providing for a mandatory minimum sentence for “offenses committed on public transportation”)

·      42 P.S. § 9718 (providing for a mandatory minimum sentence for “offenses against infant person”)

·      42 P.S. § 9719 (providing for a mandatory minimum sentence for “offenses committed while impersonating a law enforcement officer”)

·      18 P.S. § 7508 (providing for a mandatory minimum sentence for “Drug trafficking”)

·      18 P.S. § 6317 (providing for a mandatory minimum sentence for “the delivery or possession with intent to deliver [a] controlled substance [in a d]rug-free school zone”)

Better. Together.

Hagen Starz

Allied Legal Partners proudly welcomes you to our new website and the ALP Blog.   While not intended to be legal advice, this blog provides a place for both our firm's Partners and trusted contributors to keep the public informed on recent developments in the law, as well as to provide a forum to discuss recent achievements and best practices.  It is the goal of Allied Legal Partners to achieve excellence in all that we do and we look forward to communicating with all of you in the months and years to come.  

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