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Posted by on Dec 1, 2017 in Criminal, Suppression | 0 comments

Com v. Livingstone: You’re Drunk, I presume.

In Commonwealth v. Livingstone, the Supreme Court of Pennsylvania ruled that a police officer must have articulable explanation for his “community caretaking” to use it as an exception to the warrant requirement.

Late one evening, Trooper Frantz was out on I-79 (named for former Pennsylvania Governer Raymond Shafer) when he saw a car stopped on the side of the road, with no hazard lights on. Concerned that the motorist might be having trouble, he turned on his emergency lights and pulled up next to her. He rolled down his window and spoke to the driver—Ms. Livingstone—who was putting an address into her GPS. He spoke to her and she stared back, assuring him she was OK.

But our Trooper was a gentleman, and he was concerned she wasn’t really OK. He pulled in front of her car, parked, and walked to the driver’s door to continue checking on her. The Trooper began to notice that Ms. Livingstone’s behavior was strange, and so he required a breathalyzer. Before long, she was handcuffed and under arrest for a DUI.

Majority by Todd: Community Caretaking Exception Must be Narrowly Tailored to the Objective

Justice Debra Todd, writing for the fractious majority, holds that the “community caretaking exception” to the warrant requirement of the Fourth Amendment requires the officer’s actions to be supported by clear and articulable explanation of the public service he was attempting to accomplish.

Mere encounters have long been the camel’s head under the tent in Fourth Amendment law, and the Court’s majority expresses concern that the community caretaking exception not grow to the point of invalidating the need for probable cause. If an officer can claim he is just checking in on a motorist, he can almost always initiate a stop. This conclusion was bolstered in this case by the officer’s use of lights. Pointing out that it would be a crime for the motorist to pull away while the officer’s lights are on, Todd argues that it would be absurd for a motorist to believe that she was free to leave at that point.

While stopping short of requiring a “complete divorce” from the facts giving rise to the community caretaking activity the officer initially undertook and the criminal investigation that soon followed, the majority ruled that an officer “must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed” before engaging the community caretaker exception, and that “the police action must be independent from the detection, investigation, and acquisition of criminal evidence.” Finally the Court ruled that these determinations are based on the totality of the circumstances, and that the action taken by police must be tailored to rendering assistance or mitigating the peril.”

Com v. Livingstone: You’re Drunk, I presume.

In Commonwealth v. Livingstone, the Supreme Court of Pennsylvania ruled that a police officer must have articulable explanation for his “community caretaking” to use it as an exception to the warrant requirement.

Late one evening, Trooper Frantz was out on I-79 (named for former Pennsylvania Governer Raymond Shafer) when he saw a car stopped on the side of the road, with no hazard lights on. Concerned that the motorist might be having trouble, he turned on his emergency lights and pulled up next to her. He rolled down his window and spoke to the driver—Ms. Livingstone—who was putting an address into her GPS. He spoke to her and she stared back, assuring him she was OK.

But our Trooper was a gentleman, and he was concerned she wasn’t really OK. He pulled in front of her car, parked, and walked to the driver’s door to continue checking on her. The Trooper began to notice that Ms. Livingstone’s behavior was strange, and so he required a breathalyzer. Before long, she was handcuffed and under arrest for a DUI.

Majority by Todd: Community Caretaking Exception Must be Narrowly Tailored to the Objective

Justice Debra Todd, writing for the fractious majority, holds that the “community caretaking exception” to the warrant requirement of the Fourth Amendment requires the officer’s actions to be supported by clear and articulable explanation of the public service he was attempting to accomplish.

Mere encounters have long been the camel’s head under the tent in Fourth Amendment law, and the Court’s majority expresses concern that the community caretaking exception not grow to the point of invalidating the need for probable cause. If an officer can claim he is just checking in on a motorist, he can almost always initiate a stop. This conclusion was bolstered in this case by the officer’s use of lights. Pointing out that it would be a crime for the motorist to pull away while the officer’s lights are on, Todd argues that it would be absurd for a motorist to believe that she was free to leave at that point.

While stopping short of requiring a “complete divorce” from the facts giving rise to the community caretaking activity the officer initially undertook and the criminal investigation that soon followed, the majority ruled that an officer “must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed” before engaging the community caretaker exception, and that “the police action must be independent from the detection, investigation, and acquisition of criminal evidence.” Finally the Court ruled that these determinations are based on the totality of the circumstances, and that the action taken by police must be tailored to rendering assistance or mitigating the peril.”

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Posted by on Sep 29, 2017 in Frye Test, Murder, Suppression | 0 comments

Com v. Jacoby: Capital Appeal: Introduction of unconstitutionally seized murder weapon evidence was harmless error

The opening paragraph of this case read like an Alfred Hitchcock screenplay. The police

received a call that originated from Monica Schmeyer’s residence . . . When the police arrived, they found Monica Schmeyer dead on her living room flolr. Blood droplets and stains surrounded her body. The telephone was off the hook; there was blood on the 9 and the 1. There was also a .32 caliber Speer branded shell casing on the floor near Monica Schmeyer’s body.

In Commonwealth v. Jacoby, a direct capital appeal, the Supreme Court of Pennsylvania rules that the introduction of an unconstitutionally-seized barrel of the murder weapon, which was urged to the jury during closing argument, was “harmless error.” In addition, Jacoby was not entitled to a Frye hearing when his argument was about the novel application of non-novel scientific evidence. For these reasons, among others, Jacoby’s conviction was confirmed.

Timothy Jacoby, the Defendant, was part of an informal group of friends that regularly met at a local Hooters. The group dubbed themselves the “Orange Shorts Society” for the garb worn by waitresses at the restaurant, and gathered together for recreational purposes. During these “meetings,” Dr. Jon Schmeyer, one of the “members,” frequently offered life updates regarding his divorce, his ex-wife, the alimony he paid her, and his ex-wife’s curious habit of keeping the sums paid to her in envelopes squirreled away around the house. In addition, this Dr. Schmeyer mentioned casually that the couple’s daughter would be out of the country for a certain period of time.

As a subsequent meeting of the Orange Shorts Society, on the afternoon and evening of March 31, 2010, Jacoby was not present despite the expectation of the other members, including Jacoby’s fiancée, that he would attend. The murder at Schmeyer’s home took place during this meeting. Two witnesses would later testify to seeing a man matching Jacoby’s general description in the area during this time. One of the witnesses remembered the man was carrying a white envelope. The other witness remembered hailing the man walking by his home, and that the man only nodded and then looked down. (Personally, I don’t find this fact to be that odd—this is Pennsylvania, after all). Finally, surveillance video captured a work van from Jacoby’s employer in the area near the time of the murder despite the fact this his employer does not do work in that area. In addition, the “sign out sheet” for the work vans was missing for the month in question (highly unusual according to the supervisor), and Jacoby put in an expense reimbursement for the time period in question. In addition, DNA evidence collected at the scene did not exclude Jacoby or his male relatives.

But most damningly of all, the police learned that Jacoby—a convicted felon—owned a .32 caliber pistol that matched the shell casing found at the scene. 15 months after the crime, police obtained a search warrant for Jacoby’s home and found a barrel that matched the pistol, although they did not find the pistol. Jacoby was convicted by a jury and sentenced to death due to the aggravating factor of the commission of a felony while committing the murder (in this case, burglary and robbery).

Wecht for the Majority: Murder Weapon

Writing for a majority of the Court (but you’ll have to do some matching up with section numbers to determine how many are in the majority for each section), Justice David Wecht finds no error in the majority of the trial. As with all capital appeals, the Supreme Court of Pennsylvania is tasked with microscopically re-examining every aspect of the trial, and the vast majority of the time, there is no error. However, three holdings stand out, the most important of which are the first and third, below.

First, and most importantly, despite finding that the warrant issued for Jacoby’s home was invalid, and that the barrel of the murder weapon found there should have been suppressed, the Court rules that the error was harmless. The affidavit submitted in support of the request for the warrant stated that Jacoby had previously had a registered firearm, that he was now a convicted felon, and that “it is reasonable to believe Jacoby would retain this item as he is barred from legally obtaining another hand-gun.” The Court found this central allegation in support of the warrant application to be “conjecture and speculation, particularly considering the gap in time,” and ruled that there was no probable cause for a warrant under the Fourth Amendment or Article I, § 8. “[T]he general rule is that probable cause must be predicated upon individualized suspicion,” so where a warrant’s allegation about what it is “reasonable to believe” “is not tailored or individualized” to the Defendant “in any fashion,” the warrant “falls short of probable cause.” The Court came back to emphasize, several times, the long gap in time between when it was known that Jacoby owned a gun matching the description involved, and when they finally requested, obtained and executed a search warrant.

While finding the warrant requirement was not satisfied under either Constitution, the Court emphasized the heightened particularity required of a warrant under Article I, § 8. (“We also note that there is a strict particularity requirement” in § 8, and that “a warrant must describe the items as specifically as is reasonably possible.” (quoting Com v. Grossman, 521 Pa. 290 (1989)).

Despite finding that the barrel should have been suppressed, the Court rules that the error of introducing it was harmless. The barrel played, “at best, only a minimal part in the Commonwealth’s ballistics evidence and its overall evidentiary presentation,” and the existence of biological evidence, evidence that the bullet that killed the victim was “proven definitively to have been fired from a gun that also was fired” on a shooting range on Jacoby’s parents’ private property, and other circumstantial evidence rendered the admission of evidence of the barrel harmless error.

Second, the Supreme Court held “there are limits to automatic standing,” and that Jacoby lacked any standing to challenge a search of his parents’ home. Although Jacoby was charged with a possessory offense (Felon in Possession of a Firearm—a newer Desert Eagle was found in his parents’ possession, titled to Defendant), he did not benefit from automatic standing under the time differential doctrine of Com v. Peterkin 511 Pa. 299 (1986). Peterkin requires focus on “whether the defendant is charged with possessing” the contraband “at the time of the contested search and seizure.” Here, Jacoby’s possessory crime took place on the date of the murder, according to the Commonwealth, and the search happened some time later. Thus, Jacoby lacked standing to challenge the search of his parents’ home.

Finally, the Court ruled that Jacoby did not meet the threshold showing required to force a Frye hearing on the DNA evidence presented. Frye hearings are required where “novel scientific evidence” is to be presented. In contrast to the Federal Courts’ Daubert rules, Pennsylvania maintains the older Frye standard which precludes the admission of scientific testimony based on methods that are not yet well established in their respective scientific discipline.

Here, Jacoby argued against the expert’s conclusions were a novel application of well-established scientific tests—that is, that the tests and findings themselves were not the result of novel science, but only the expert’s findings based on those tests. He believed that the expert had placed too much weight on one type of DNA, rather than looking at a full battery of DNA tests.

Reviewing this point under an abuse of discretion standard, the Court declined to find any wrongdoing on the part of the trial court. Jacoby’s argument went to the weight of the evidence. He could always argue the weight of the evidence to the jury—which he in fact did.

Concurrence by Mundy: I would find probable cause for search of Defendant’s home

Justice Mundy concurs in the result, joined by Justice Baer. Mundy argues there was probable cause to search Jacoby’s home in this case. Citing Federal Court of Appeals caselaw for the proposition that judges should be permitted to infer that “suspects keep instrumentalities of crime in their own residences.” Arguing that guns are “durable and sometimes valuable objects” that are kept long term, Mundy finds no reason to believe that the passage of time made it less likely the police would find the gun at Jacoby’s home in this case.

Dissent by CJ Saylor: This error was not harmless

Chief Justice Saylor dissents, arguing that the verdict should be overturned and the case remanded for a new trial due to both the invalid search of Defendant’s home, and because the Defendant was entitled to a Frye hearing (Justice Donohue joins the Chief Justice’s dissent on this latter point). On the first point, the Chief Justice says, “I have difficulty with [the majority’s] application of the harmless error standard” because the Commonwealth did not advance this argument—and bears the responsibility to prove harmless error beyond a reasonable doubt—and because the majority did not assess the facts in favor of the Defendant in its analysis. Saylor criticizes the majority’s omission of major problems with the witnesses’ testimony, developed on cross examination, as well as evidence that Jacoby frequently missed Orange Shorts Society meetings. These facts make the harmless error ruling untenable in Saylor’s view.

Furthermore, arguing that the Frye standard may bar the evidence of DNA presented against Jacoby, Pennsylvania’s Chief Justice offers “an efficient use of limited judicial resources” adopted in other jurisdictions, such as California, Flordia and Maryland: where a Frye hearing should have occurred, the case should be remanded for purposes of that hearing only, and if the evidence is ruled admissible, the original jury verdict may stand. Only if the evidence is determined by the trial court to be inadmissible must a new trial be granted.

Conclusion: Important holdings where you least expect them

I don’t normally invest much analysis into these cases simply because they are usually garbage appeals. The Defendant’s attorney has to appeal to the Court, the Court has to take it, and both sides have to present a thorough re-airing of the entire trial. This serves an important constitutional function, but rarely yields interesting legal holdings.

This case is certainly an exception to that rule. Justice Wecht’s well-written opinion makes it enjoyable to read, for one thing, but more to the point, the three holdings discussed above will provide ammunition in future cases. The Court’s re-affirmance of the specificity requirements for a warrant under Article I of the Commonwealth’s Constitution should be carefully examined by defense attorneys, while District Attorneys across the state will benefit from the re-affirmation and discussion of the limits on automatic standing in possessory offenses. In short, this case was much more than the typical throw-away, and is worth the read (or skim) for attorneys in criminal practice.

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Posted by on Jul 20, 2017 in Constitutional Provisions, Criminal, Suppression | 0 comments

Com v. Shabezz: Automatic standing in Pennsylvania to challenge unconstitutional searches

Saleem Shabezz was observed by a policeman in a McDonald’s Parking Lot—a “hot zone,” known for drug deals by the police in Philadelphia (always a great place to find hot ‘zones). The officer saw Shabezz from his patrol car, 45 feet away, conducting a “hand-to-hand transaction with the driver.” This transaction was “a cupping and dropping motion to transfer small objects into the driver’s hand,” and then a subsequent exchange of “something,” which the officer assumed to be money—or at least, this is the remarkably detailed story told by the officer at the suppression hearing.

The incident reports about the exchange, on the other hand, are more generic. The reports simply said Shabezz opened the passenger door to the car, leaned inside, and conducted a brief conversation with the driver. Shabezz returned to the red Acura he had arrived in as a passenger, which attempted to exit the lot.

Whatever happened before this moment, what happened next is uncontested: the cops stopped the Acura, Shabezz the passenger fled and was apprehended, and a host of drug-dealing equipment and drugs were found in the car (including “heat-sealed” baggies, scales for weighing powders, etc).

The trial court found the dramatic enhancements of the story described in the first paragraph above to be a bit too convenient, too late, and suppressed the evidence gathered in the stop as unconstitutional under the Fourth Amendment. But the Commonwealth appealed this ruling, arguing that Shabezz did not have a “reasonable expectation of privacy” in the areas searched (because it wasn’t his car), and thus, that he had no standing to contest the search.

Majority by Wecht: Shabezz has standing to challenge the search

Justice Wecht, writing for 5 members of the unanimous Court, outlines the development of “standing” in federal constitutional law. Wecht demonstrates how the Supreme Court of the United States quickly narrowed and then abandoned the concept of standing from the “automatic standing” rule of the 1960s, preferring to require Defendants to demonstrate a privacy interest in the area searched before being permitted to challenge a search under the law.

But Pennsylvania’s Supreme Court has always afforded more protection under the Pennsylvania Constitution than the Federal Supreme Court has under the Federal Constitution, and thus, Pennsylvania still recognizes automatic standing. But while standing allows the defendant to “get his or her foot in the courtroom door,” the Defendant must also demonstrate “that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable.”

Wecht goes on to argue that the Defendant in this case need not demonstrate a personal privacy interest in this case, because, “This case is about an illegal seizure of a vehicle and its occupants. It is not a vehicle search case.” (emphasis in the original).

Quoting from closely-analogous Third Circuit caselaw, the Court concludes that a defendant in a car that was unconstitutionally stopped need not show another unconstitutional search to have the evidence gathered from the unconstitutional stop suppressed. He has standing, he may challenge the stop, and having done so, he succeeds on the merits. “We hold that the contested evidence, tainted by the initial illegality, must be suppressed, even absent a demonstrable expectation of privacy in the locations where the evidence was found.”

Concurrence by Mundy: There are no “per se” rules under the Constitution

Justice Mundy, joined by Justice Baer, reminds us that the Fourth Amendment creates few “per se” rules, and that “the Court’s decision should not be read to suggest all searches stemming from unconstitutional seizures are automatically fruit of the poisonous tree.” A case by case analysis will reveal attenuation in some cases, and reasonableness in the overall circumstances of others. “Although this case is relatively straightforward, other cases may arise where the chronology of events is more complex, which may alter the calculus.”

Conclusion: Are we still talking about the Fourth Amendment?

The question granted for appeal, the Court’s reliance on Third Circuit caselaw, and the ultimate holding all seem to be interpreting the Fourth Amendment. However, the Court’s bold reminder that the Pennsylvania Constitution affords greater protection than the Federal Constitution is thrown into the midst of everything, and it brings a curiosity about this case to the foreground. Pennsylvania’s view of standing on the Fourth Amendment, by definition, must comport with the Supreme Court of the United States’s interpretation. But this opinion seems to differ in important respects from Federal Supreme Court caselaw, not the least of which is on the point of automatic standing. Indeed, with SCOTUS’s recent expansion of the “attenuation” doctrine in Utah v. Strieff, it seems hard for SCOPA to claim this case does not represent attenuation.

Perhaps I’m wrong—but from where I sit, the Court may wish to develop its own caselaw around Pennsylvania’s constitutional provisions (in this case, Article I, § 8) to fortify against encroachment by the federal courts. Of course, SCOPA is largely bound by the arguments that the litigants bring them, and this case appears to have been certified for appeal only on Fourth Amendment grounds, not under Article I. Regardless, Pennsylvania is blessed to have a strong set of Article I rights, and I hope that SCOPA future considerations of these rights remains bold and expansive, as this opinion promises they are likely to be.

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