Just last month in October, partner David S. Nenner succeeded in getting a judge to suppress large amounts of drugs (cocaine) found in his client’s car during an auto stop in Philadelphia.

Mr. Nenner successfully argued that the Philadelphia police failed to obtain a warrant and therefore had no right to search his client’s car. The trial judge agreed and ordered the large amount of cocaine (150 grams) suppressed, effectively ending the case.

However, the trial court’s ruling is being appealed to the Pennsylvania Superior Court. How this appellate court ultimately rules will have serious implications for Philadelphia criminal cases involving drugs, guns and other contraband seized from auto searches.


Earlier this year in April, the Pennsylvania Supreme Court made major changes to state constitutional law which applies in criminal auto stop cases. In Commonwealth v. Gary, the court held that police officers may stop and search a car without a warrant so long as there is probable cause (i.e., reasonable basis to form a belief that a crime has been committed or is being committed). Prior to the Gary decision, police officers in Pennsylvania had to get a warrant to search a car unless there was both probable cause and an exigent circumstance. An exigent circumstance is basically an emergency condition or factor, like imminent danger to the general public.


In Mr. Nenner’s case, his client was a Hispanic man who was driving from New York to Philadelphia. His car was stopped in Philadelphia, and without a warrant, police officers seized over 100 grams of cocaine. He was charged with possession of a controlled substance with intent to deliver (PWID), and under state sentencing guidelines, faced a prison sentence of at least 4 years for a 1st time offense or 7 years for a second time offense (See 18 Pennsylvania Consolidated Statutes Section 7508).

Prior to the auto stop, local police in Philadelphia had been investigating an alleged large scale drug operation involving multiple individuals in the New York and Philadelphia area. Mr. Nenner’s client was arrested along with several alleged co-conspirators.

Related: Philadelphia Criminal Drug Law, Suppression of Drugs & Guns Found in a Car (Part 2)

Mr. Nenner filed a Motion to Suppress all the evidence seized from the car his client was driving. At the hearing, he argued that the officers had ample time to obtain a warrant prior to stopping his client and searching the car. Because the officers had ample time to get a search warrant, but failed to, they violated his client’s constitutional rights to be free from unreasonable searches and seizures under the federal and Pennsylvania state constitutions.

The Philadelphia trial judge agreed and suppressed the drugs found in the car. The Philadelphia District Attorney’s office has appealed the case.

One issue that came up during the hearing was whether the Gary decision applied. Despite the clear mandate of the Gary case – which is that officers can search a car without a warrant so long as there is probable cause – there has been some confusion about when it applies. The decision was handed down in April 2014. Therefore, there are questions about whether it apples to drug investigations that had already occurred (i.e., does the case apply to drug cases/investigations which had occurred before the case was decided)? For now, no appellate court has found that the Gary decision is retroactive.

Therefore, many criminal trial lawyers in Philadelphia will be paying attention to this case on appeal. How the Pennsylvania Superior Court rules may affect many drug cases that are currently pending.


Our criminal lawyers have handled 100s of drug possession and distribution cases. Please call for a free consultation. (215) 564-0644

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