Legal Question in Criminal Law in Pennsylvania
Does seeing "what appeared to be a gun in the waistband as the suspect leaned forward" constitute enough "probable cause" to frisk and search an otherwise innocent, peaceful and cooperative bar patron? And since nothing more than a quick lift of the shirt was required to confirm that "what appeared to be a gun" was nothing but a figment of a bad cop's lazy imagination, shouldn't any pretense of legality have ended there?
My nephew was arrested, charged with and found guilty of possesion with intent. While being frisked and thoroughly searched by a plain clothed Delaware County narcotics officer, he was found to be in possesion of about 150 ten milligram percocets. For some reason I have yet to discover, the Narc and a few uniformed cops decided to stop in The Red Lantern Tavern on a quiet Tuesday afternoon. No one from the bar called them and they've never been asked to explain how they happened to be in a mostly empty, peaceful bar in perfect position to observe "what appeared to be a gun"at the exact moment my nephew leaned forward.
Ignoring for a moment all the numerous and humorous questions absolutely BEGGING to be asked, let me ask a serious one:
Since its perfectly legal to sit in the bar with a handgun--concealed(with a CCP) or openly--, why would a glimpse of what appeared to be a gun give anyone probable cause to do anything at all?
My nephew doesn't have CCP as far as I know, but the cops had no way of knowing that and didn't ask before conducting the search. Even if they really did believe they saw a gun, and even if my nephew failed to show a permit upon request, shouldn't the search have ended as soon as the probable cause was found to be a false alarm?
The arresting officer freely admits that other than the possible gun sighting, there was no reason to suspect any criminal activity.
I think this was clearly an illegal search and any evidence obtained as a result should've been inadmissable.
My nephew is two months into a 60 month sentence. I need to know if this is worth pursuing. Needless to say, any help would be greatly appreciated.
2 Answer from Attorneys
The time to pursue it was before he was convicted and sentenced. Didn't his lawyer file a motion to suppress the search as illegal? If he did, and lost, then why wasn't an appeal filed within a month after sentencing?
If no motion was filed, the only thing that can be done now is a petition under the Post Conviction Relief Act.
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