A Harsh Disciplinary Enforcement Environment for Pennsylvania Licensees

I write this blog in preparation for a Pennsylvania Nursing Board ordered Mental and Physical Examination (“MPE”) of a client.   It is startling the number of these board ordered evaluations or PHMP/PHP/PNAP assessments due to some type of licensee criminal conduct.  The heightened disciplinary activity among all boards reveals a much stricter atmosphere of licensee disciplinary enforcement.  Why?
Pennsylvania’s heightened disciplinary environment is based upon a single legislative occurrence and a single judicial decision.  Legislatively, passage of Pennsylvania’s medical marijuana regulatory scheme has prompted a review of all licensing laws in anticipation of increased licensee impairment and criminal activity due to marijuana usage (legal or not).
A prime example of this is Senate Bill 354 of 2017.  I wrote about this bill last week.  This bill seeks to compel any licensee charged with a crime (not convicted) to report such to their respective licensing board within 30 days of arrest.  Failure to report will constitute a separate basis for discipline.  This Bill seeks to bring the boards’ immediate knowledge of licensee’s criminal conduct so discipline can commence sooner.
Pennsylvania’s licensing boards subscribe to JNET – Pennsylvania’ criminal fingerprint data base.  The Boards already know of licensee’s criminal charges of which they already expect them to report upon conviction.  However, the Boards now want quicker reporting, with an additional and stronger basis for discipline.  False reporting and failing to report criminal conduct!!
But this bill is not not law.  So what’s the juice?  The juice is that current licensee’s facing disciplinary action for some really minor issues will think twice before smoking pot; they will tell their friends and co-workers to think twice before smoking pot and taking care of the public.  The health related boards are gearing up prosecutors for stricter supervision of all licensees.  In this conservative jurisdiction, pot is thought to be a gateway drug to heroin.  The prescription based opiate epidemic caught the health related boards with their pants down.  It will not happen again with the passage of medical marijuana.
The enforcement environment also extends to potential licensees enrolled in any health related school who apply for licensure with a criminal history of one or two DUI’s.  I represent many individuals whose licensure applications have been stalled based upon conditional denials and compelled PHMP enrollment.   A new regulation requiring  license applicants to be licensed within 12 months of taking their board examinations aides the Board in weeding out potential applicants who do not accept PHMP enrollment.
DO NOT go willy-nilly to the PHP/PHMP assessment and or evaluation with the expectation that you will pass and be given your license.  DO NOT answer the personal data sheet with out consulting an attorney.  DO NOT talk to the PHMP intake or assessors without attorney preparation.  They write everything down — your story of depression, injured or dead family members, your divorce, your child abuse history.  The PHMP people will always recommend enrollment in the VRP after you, the new licensee, admit your mental health treatment, drug use, and inability to practice safely.   How can you admit you can not practice safely if you have never practiced?  Applicants fighting their cases must be patient and call me ASAP. 
The Birchfield decision (written about in other blogs) is the judicial decision most affecting disciplinary actions.  Birchfield focused on the admissibility of blood alcohol levels as a result of a non-consensual blood draw in a DUI investigation. This case has rippled through every Pennsylvania county’s drunk driving enforcement efforts.  Birchfield ruled inadmissible DUI blood evidence that revealed drugs (illegal or prescription) and/or marijuana use.
Birchfield rendered blood drug use evidence an inappropriate basis for licensee disciplinary action.  The heightened reporting responsibilities of nurses (30 days from arrest), allow petitions for mental and physical evaluations based upon affidavits of probable cause reflecting alcohol or drug use even though blood evidence is not admissible in a court of law.  The Boards want to know right away what its licensees are smoking or drugs they are ingesting.
Pennsylvania licensees need to fight every criminal case. The new notice provisions in Bill 354 will become law.  While criminal charges are pending licensees will have to provide a potentially incriminating personal statement to a licensing board.  This is crazy.  There is no 5th Amendment right against self-incrimination in a professional license defense.  Licensees need an attorney to help draft counseled answers to strategic legal questions and statements under these circumstances.  Now, more than any time in the recent past, licensees should utilize counsel to properly protect their license.
The Boards use their experts to determine impairment.  Why shouldn’t you use your expert to protect your license?  Licensees face workplace challenges, complex life issues, and now a crazy enforcement environment in Pennsylvania.    Mail from the PHMP, PHP, and PNAP present multi- faceted traps for even the most experienced licensees.  Licensee need their own expert — an experienced criminal and administrative law attorney to effectively protect their license.  Call me to discuss your criminal or license case.

State Trooper Highway Automobile Dog Searches After the End of Traffic Investigation

This week the United States Supreme Court decided Rodriguez v.United States, 575 U.S. ___ (2015). The decision affirms a significant portion of Pennsylvania law in the area of extension of traffic stops beyond the initial motor vehicle code investigation. I have handled these cases in Cumberland, Lancaster, Montgomery, Bucks and Philadelphia Counties.

These cases routinely involve state troopers illegally extending basic traffic stop investigations into motor vehicle searches. These extended traffic stops discover illegal contraband leading to broader criminal charges. However, it is that extended search, based only upon a guess, hunch, or a simple illegal request to search, that is illegal.

Rodriguez v. United States rules illegal the extension of a traffic stop by calling in a dog sniff team without reasonable suspicion of criminal activity. The US Supreme Court previously stated that a dog sniff conducted during a lawful traffic stop does not violate the fourth amendment proscription unreasonable seizures. Rodriguez presents the question of whether the Fourth Amendment tolerates EXTERIOR dog sniffs after completion of a traffic stop, not during, when the time needed to handle the matter for such violation exceeds a reasonable time.

The Pennsylvania trial courts have addressed this scenario many times, leading a Chester County Judge to state, “there is a distasteful convergence of facts and circumstances … that test the bounds of credulity and requires the court’s candor in distinguishing between lawful police investigatory conduct and conduct proscribed by our Constitutions.” Commonwealth v. Parker, 2009 Pa. Dist. & Cnty. Dec. LEXIS 132 (2009)(Honorable Ronald C. Nagle, Chester County Court of Common Pleas). The Pennsylvania Supreme Court has consistently stated, “Where the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion to support the investigative detention or probable cause to support the arrest, the citizen is considered unlawfully detained.”

After police finish processing a traffic infraction, the determination of whether a continuing interdiction constitutes a mere encounter or a constitutional seizure centers upon whether an individual would objectively believe that he was free to end the encounter and refuse a request to answer questions. Commonwealth v. Kemp, 2008 PA Super 274, 961 A.2d 1247, 1253 (Pa. Super. 2008) citing Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).

To determine whether interaction following a legal detention is a “mere encounter” or a detention, Pennsylvania courts analyze the totality of the circumstances including:

1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen’s movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, . . . thus suggesting to a citizen that his movements may remain subject to police restraint; 9) the presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor; and 10) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Moyer. Conferral of the ‘free-to-go’ advice is itself not a reason to forego a totality assessment’ and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave.”

In many of these cases, the police fabricate the basis for the late night car stop, picking some specious motor vehicle code violation. Allegations of traveling too closely, lane change without a blinker, a license plate lights out, obstructions from a rear view mirror, or illegal under car lights are typical deminimus traffic violations. Sometimes tickets are issued. More often than not, no warnings or violation is recorded.

After the individual is removed from the vehicle, basic cursory flashlight investigation and driver’s information computer checks are made. In many cases all is legal.  There is no evidence of criminal activity presented to justify either a consensual search or a request for a non-consensual search. Maybe two cell phones, a rental car, and a careful driver from out-of-state is present. Troopers routinely claim under oath that the person, wherever they are coming from, was traveling from a high drug area.

At this juncture, state troopers threaten dogs ripping apart vehicles. If this does not work, suggestions of long delays and “we will just get a warrant” followed by “we will then rip your car apart” are employed. These tactics are deployed to secure consent to search. It is when the search requests are denied, as in Rodriguez, that state troopers call in backup canine officers. Here the motorist must wait and is thus detained.

When the dogs arrive and conduct the exterior sniff, alerting to “contraband”,Troopers now claim reasonable suspicion to then enter the car for further searching. Rodriguez addresses the legality of this police tactic; extending an otherwise legal traffic stop that did not present reasonable suspicion of criminal activity, by requiring a motorist to wait for the canine sniff team for the exterior search which creates the only reasonable suspicion to then enter the car without consent.

It is now the law of the land that this is illegal. Rodriquez rules that the traffic stops become unlawful when prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket. The seizure remains lawful only so long is unrelated inquiries do not measurably extend the duration of the traffic stop. The court ruled that a dog sniff, a measure aimed at detecting evidence of ordinary criminal wrongdoing, with out reasonable suspicion to do so extends illegally the duration of the traffic stop.

The Court squarely rejected the argument that an officer may incrementally prolonged a stop to conduct dog sniffs so long as the officer is reasonably diligent in pursuing the traffic related purpose of the stop. (The Court equated this to the officer earning bonus time to pursue an unrelated criminal investigation.) The magistrate’s finding that the detention for the dog sniff, which itself prolongs the traffic stop, was not independently supported by individualize suspicion, rendered illegal the extension of the traffic stop.

Call me to discuss your car investigation.

Pennsylvania State and Federal Cell Phone and Car Searches Now With Out a Warrant

The Pennsylvania Supreme Court issued two important evidentiary decisions this week. The first decision focuses on the admissibility of drug evidence discovered after a warrantless automobile search. The second decision focuses on the admissibility of statements and other evidence gathered when police, with owner authority, listen in on drug transaction cell phone conversations.

The car search case is Commonwealth vs. Gary, 2014 PA Lexus 1119 (April 29, 2014). In this matter, Mr. Gary operated a motor vehicle in Philadelphia. He was pulled over due to excessive window tint. Upon approaching the car, the police smelled marijuana. The police asked Mr. Gary if there was anything in the car they should know about. He responded, “Some weed.” Mr. Gary was removed from the vehicle and placed in the patrol car, from which he later attempted to flee.

Pennsylvania automobile stop and search jurisprudence has long established that illegal window tint evidence alone constitutes probable cause that crime, a motor vehicle code violation, has occurred. This permits the police to conduct a motor vehicle stop. That is not the issue in this case. As well, additional probable cause of criminal activity is presented by marijuana odor and Mr. Gary’s legal blurt out that there is weed in the car. He was not detained and he was not under interrogation. Also, prior Pennsylvania Supreme Court precedent allows the police can take Mr. Gary out of the vehicle for any or no reason as a result of a lawful motor vehicle stop (the window tint).

As such, the car stop and initial contact with Mr. Gary is legal and has been for a long time. The unusual part of the Gary case is what the police did after Gary attempted to flee; they searched the vehicle without a warrant or consent, finding two pounds of marijuana in the trunk.

Mr. Gary filed a motion suppress in Philadelphia Municipal Court, which the court denied. He was found guilty of possession of marijuana with intent to deliver and given four four years probation. Mr. Gary appealed the case to the Philadelphia County Court of Common Pleas, which court affirmed the denial of the motion to suppress. Mr. Gary appealed to the Pennsylvania Superior Court claiming the search without a warrant was illegal. Superior Court agreed and reversed the conviction and vacated the evidentiary ruling in the case. The Commonwealth appeal the case to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court spent a significant amount of time reviewing the long history of Pennsylvania case law regarding automobile searches. Without repeating all here,the court eliminated any exigent or emergency need prior to police being able to search a vehicle without a warrant. Rather, they simply said police office who possess probable cause to stop and search a motor vehicle may search that vehicle at the scene without a warrant, If the probable cause to which the police claim as a basis to stop the case is sufficient thereto, then it would be sufficient in a warrant. The level of probable cause may be tested in a court of law. Commonwealth of Pennsylvania police departments no longer are required to secure a motor vehicle and impound it and then wait to secure a warrant before any search.

Importantly, the case does not eliminate the legal requirement that the Police must possess reasonable suspicion of a motor vehicle code violation, probable clause of a motor vehicle code violation, or probable cause that a crime has been committed for which evidence of that crime may be located in the motor vehicle subject to search without a warrant. This test is a fundamental due process requirement imbedded in every state and federal constitution. Every person charged with a crime who possesses an ownership or privacy interest in the vehicle searched is still able to file a Motion to Suppress. The significant aspect of the Gary decision is only that the police no longer need to secure an impound the vehicle and wait to secure a search warrant. The court determined that the inherent mobility of a motor vehicle is a sufficient basis for the Pennsylvania Constitution to allow motor vehicle search without a warrant but based upon probable cause.

The second case issued by the Pennsylvania Supreme Court this week focuses on the police using modern-day telephonic techniques to intercept and utilize cell phone communications to investigate crime. The frequency and widespread use of cell phones and cooperating witnesses prompted the Pennsylvania legislature to amend the Pennsylvania Wiretap Act, 18 Pa. C.S.A. §5701. These amendments were effective in 2012. I have extensively written on the new law for Pennsylvania’s legal newspaper, The Legal Intelligencer. Pleases visit my website webpages under articles published for an extensive discussion on the amendments to the wiretap back. http://www.phila-criminal-lawyer.com/Publications/204101201Hark-2.pdf

Suffice it to say for the purposes of this blog that the Pennsylvania Supreme Court ratified the police conduct of listening in on cellular telephone conversations via speakerphone or ear plugs. The court also ratified police conduct of receiving the authority of confidential informant to participate in and impersonate the owner in a cellular phone to secure evidence. The police conduct does not require a warrant or judicial oversight. The police may utilize any and all information gathered from the cell phone conversations to investigate and prosecute individuals committing crimes. Any evidence gathered is admissible in a court of law.

The widespread use of cell phones prompted the case to reach the Pennsylvania Supreme Court. The Delaware County Court of Common Pleas precluded the use of any police evidence secured via cell phone, suggesting that those conversations were subject to Pennsylvania’s Wiretap statute. However, the Pennsylvania Supreme Court merely reviewed the 2011 amendments to the Wiretap Act, which specifically precluded cellular telephones as a device subject to the act. More importantly, the Supreme Court indicated that listening in on conversations with the authority of one of the two recipients was a wholly prescribed and anticipated idea that act authorized as an evidence gathering Technique.

Please call me to discuss the search of your vehicle, the taping of your cellular phone conversations, or any other evidentiary issues secured in your potential for prosecution.

GPS Tracking Devices and Privacy Rights.

           I write today about the next twist in motions to suppress and GPS tracking devices.  You may recall the US Supreme Court case of US. v Jones, in which the Supreme Court held that regardless of the Wire Tap Act and the Federal Electronic Communications Act (which deal with cellular telephone data and surveillance tactics), warrantlessly placing a tracking devices on a car for the purposes of tracking that car constituted a trespass for which all evidence illegally seized therefore was to be suppressed.

Pennsylvania Superior Court has now had the opportunity to address the Jones decision in the context of the Pennsylvania’s Constitution.  In the case of Commonwealth v. Arthur, 2013 Pa Super 28; 62 A.3d 424; 2013 Pa. Super. Lexis 72 (February 20, 2013), the court reversed a Montgomery County trial court that suppressed evidence seized as a result of a tracking device.  Superior Court focused on the expectation of privacy of the passenger who did not possess an ownership interest in the automobile.  Absent any ownership interest, there was no expectation of privacy.  This specific holding is contrary to many federal cases stating that passengers in an automobile do, in fact, have an expectation of privacy.  That case is US. vs. Mosely.

 Superior court, through Judge Platt (who by the way was a wonderful trial court judge sitting in Allentown) then analyzed the facts of the case and the GPS tracking device issue in accordance with Pennsylvania’s Wire Tap Act and then separately whether the warrant was simply supported by probable case.  See articles on my web site that I wrote for Legal Intelligencer and my blogs discussing US v. Jones, Pennsylvania’s new Wire Tap Act as of 2013, and the probable cause standard in many drug and automobile stop cases.

     Let me remind you what the issues are in any car stop search case.  Specifically, a defendant must show that he or she has a standing to claim a legitimate expectation of privacy in the area searched which has been infringed upon.  Every defendant charged with a possessory offense has automatic standing to challenge a search if they had a privacy interest in the area searched.  This proof is met when the individual, by his conduct, exhibits an actual(subjective)expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. In the context of car searches, Superior Court has now followed many federal courts in interpreting Jones to conclude “Jones did not create any new privacy right that would give[appellant]standing to contest the searches at issue. Where the appellant did not own,drive,or occupy the vehicle at issue, he failed to demonstrate any legitimate expectation of privacy in the vehicle,and thus lacked standing to contest the use of the GPS device.

 However, Author’s counsel failed, as do many, to provide any evidence that Author had permission to operate or be a passenger in the car from the rightful owner.  If a Defendant established consent to operate or occupy the automobile, under PA law, they have standing.   This proof satisfies defendant’s burden at a suppression hearing to prove that they had a reasonable expectation of privacy in the vehicle.

Once a defendant has standing to contest the search, the issue becomes, if the police complied with the specific procedural requirements of the Wire Tap Act (which is real easy) and then did they provide enough probable cause to the court for the issuance of the warrant.  That burden of proof is: “The task of the magistrate acting as the issuing authority is to make a “practical, commonsense assessment”of whether,”given all the circumstances set forth in the affidavit,”a “fair probability”exists that contraband or evidence of a crime will be found” in a particular place.”A search warrant is defective if the issuing authority has not been supplied with the necessary information. The chronology established by the affidavit of probable cause must be evaluated according to a “common sense” determination.”  

 Call me to discuss your GPS search warrant case.

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