Pennsylvania’s “limited car exception” to warrantless searches and seizures does not save discovery of drugs and guns following a legitimate DUI search

Commonwealth v. Joseph, 2011 PA Super 273 (12/20/11) (17 pages)

The Superior Court reversed this Cumberland County conviction because of its failure to suppress drugs and guns found as the seizure and search of a car search following a legitimate DUI stop.  This opinion gave the Court an opportunity to expound on Pennsylvania’s “limited car exception” to constitutional bans on warrantless searches. As with all search and seizures, it is a fact intensive case. The case is all the more remarkable because it describes defendant/client behavior that makes criminal lawyers wince when they hear it out of their own client’s mouths.

State troopers stopped Mr. Joseph after observing him traveling more than twenty miles over the limit and crossing the fog line (the white line painted on the right side of the road, a tool for drivers to keep on the road in areas of heavy fog) several times. When the trooper asked him where he was coming from, Mr. Joseph replied, “what the F does is matter where I’m coming from?”  (“You said what?” I surmise his attorney spat out when first hearing this story.) He then told them he was going home after buying some gas, but then said he was going home after buying a sex pill and a cappuccino. He further explained the absence from his car of any evidence of these purchases by explaining he had already thrown away the cappuccino and pill wrapper, and that he had taken the sex pill, and his girlfriend was at home, presumably waiting to discover whether the pill worked.  One of the troopers, not happy with these answers, observed evidence of the presence of drug paraphernalia in the car— several air fresheners, potpourri in a bag near a dashboard air vent, three bars of soap on the back, and a wrapped “blunt” cigar on the back seat.   The trooper returned to his cruiser to write out a warning for Mr. Joseph, but on checking his criminal record, found that he had what he thought to be a significant history of drug related charges.   The trooper then returned to Mr. Joseph’s car and asked him to step out of the vehicle so he could explain the warning to him.Jospeh did so, the warnings were explained, and the trooper told him he was free to go. As the trooper and Mr. Joseph disengaged and moved towards their own vehicles, the trooper, in Detective Columbo fashion, asked Mr, Joseph if he would mind answering some more questions, like whether he was transporting guns, drugs, and large amounts of cash. Mr. Joseph, agitated, called the trooper a “fucking racist.” (“Are you out of your mind?” his lawyer now asked,  I assume, during the initial interview.)  The trooper explained that he was not a racist, but that some things in his car attracted his attention, but Joseph responded that there was no probable cause to search the car, told him he could not search the car, and again called the trooper a racist. The trooper said that while he would not search the vehicle right away, he was going to keep the vehicle where it was until he could get a search warrant, and search it if a warrant was issued. Mr. Joseph continued to curse and deny consent for search of the vehicle, waiving his arms about and shouting.  The trooper told Joseph he was free to leave, but he continued to stay there and yell at the troopers until they pulled their tasers on him (something the troopers denied) when he ran away. The troopers chased him until they remembered they told him he could leave. Left with a locked running car a foot away from the fog line, the troopers determined it was necessary to call a tow truck.  When the tow truck operator unlocked the doors, the trooper conducted an inventory search form the rear passenger side and found a jacket on the floor, and inside the jacket, a loaded handgun. The trooper then walked around to the driver’s side and found a bag with marijuana lying on the ground outside of the car. He stopped the inventory search and had the vehicle towed to the police impound lot After a warrant was issued, further search yielded shell casings. The defendant was tried and convicted of drug and firearms charges.

The opinion contains a concise summary of Pennsylvania’s automobile exception to the search warrant requirement, noting that the Pennsylvania Supreme Court draws no distinction between immobilizing a vehicle while waiting for a search warrant and seizing it. The record contained no evidence of how long it would have taken to obtain a search warrant, making it impossible to characterize the stop as a brief Terry v. Ohio type stop based upon reasonable suspicion of criminal activity. The vehicle could not be detained to obtain a search warrant on the troopers’ reasonable suspicion of criminal activity as probable cause, not reasonable suspicion, is required for a search warrant. Mr. Joseph did not become agitated until the troopers said they were detaining the vehicle, so that behavior could not be part of the calculus for justifying the search. The troopers testimony that Mr. Joseph entered the highway from a high drug crime area was equivocal and not of sufficient weight to add any legal justification for the search of the car. Therefore, all evidence seized from the time Mr. Joseph was told the car was being detained was seized.  Interestingly, the Commonwealth apparently did not make any separate argument justifying or even based on the seizure of the marijuana found outside of the car.

(This case can be accessed by following the links through the Pennsylvania Superior Court web site.)

Validity of appellate waivers and written plea agreements when erroneous advice from counsel is alleged

Commonwealth v. Pardo, 2011 PA Super 266 (12/13/11) (19 pages)

(This case can be accessed by following the links through the Pennsylvania Superior Court web site.)

The Defendant entered an open guilty plea to delivery of a controlled substance, signing a written plea agreement waiving his right to withdraw his guilty plea unless the court did not accept the plea. While the plea agreement did contain the Commonwealth’s agreement to dismiss all charges except for the two Mr. Pardo pled guilty to, it contained no representations as to his sentence or any Commonwealth promises to seek, agree to, or not oppose any given outcome. Prior to entering the plea, Pardo’s lawyer told him he would be eligible for the Recidivism Risk Reduction Program (“RRRI”). That turned out to be wrong.

Following a PSI, which augured a sentence far worse than Pardo hoped for, Pardo filed a pro se motion to withdraw the guilty plea asserting his lawyer had made several misrepresentations about the effect of the plea and the sentence he might receive. At the hearing on the motion to withdraw guilty plea, he further testified that his lawyer had only spent a few minutes with him before the plea and had not answered all of his questions, and that he was not guilty of all of the charges.  His lawyer also testified that his client did not understand the concept of an open guilty plea (!) and did not understand other aspects of his possible sentence. The sentencing court, enforcing the terms of the written plea agreement, denied the motion to withdraw the guilty plea and sentenced the defendant.

The Superior Court reversed, holding, “[I]t is an abuse of discretion by the trial court to find that a defendant waived his right to withdraw a guilty plea prior to sentencing where the defendant enters an open guilty plea with regard to sentence, asserts his innocence, and there is no alleged prejudice to the Commonwealth if the plea were to be withdrawn. We further hold that the trial court may not curtail a defendant’s ability to withdraw his guilty plea via a boilerplate statement in a written plea colloquy.” Even when a defendant’s plea is knowingly, voluntarily and intelligently given, a defendant can still present a fair and just reason for the withdrawal of a guilty plea before sentencing. Pardo’s reasons for withdrawal of the guilty plea were fair and just, the Commonwealth did not assert prejudice, and therefore the conviction was vacated and remanded for trial.