PA Supreme Court Agrees Police May Not Search Cell Phone Without Warrant

Zak Goldstein - Philadelphia Criminal Defense Attorney

Zak Goldstein - Philadelphia Criminal Defense Attorney

Warrantless Searches of Cell Phones in Pennsylvania

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Fulton, agreeing with the United States Supreme Court that law enforcement officers generally may not search a cell phone incident to a defendant’s arrest without first obtaining a search warrant. The Court further concluded that the introduction of the evidence obtained from the illegal search of the defendant’s phone in this homicide case did not amount to harmless error. Therefore, the Court reversed the defendant’s conviction and ordered a new trial.  

The Facts of Commonwealth v. Fulton

On June 15, 2010, Philadelphia police received a call from Michael Toll reporting that he had been shot. Police responded to the call and found Toll in a vehicle on the sidewalk with gunshot wounds on the right side of his body. Toll told the police that Jeff shot him, and he gave them a description of Jeff. Police took Toll to the hospital and searched the car. They recovered a cell phone, and the cell phone showed that Toll had exchanged phone calls with someone listed in the phone as Jeff. Police determined that the number for Jeff was linked to a prepaid phone with no subscriber information.

Toll eventually died from his wounds. On the morning that he died, police received a call concerning drug activity and a man with a gun at a specific address. Police responded to the call and found several individuals in and around a 2002 green Mercury Marquis. The police saw a gun, a gun holster, and cell phones in the vehicle. They arrested the four men who were nearby. One of those men was Fulton, the defendant in this case. Police took a cell phone from Fulton incident to his arrest and obtained a search warrant for the vehicle but not the phone.

The Search of the Phone

The phones were given to Homicide Detectives who were investigating Toll’s death. The detectives opened the phones, turned them on, and examined them in order to determine the phone number associated with each phone. One of the phones turned out to have the same number as the phone number for Jeff that was in the decedent’s phone. Homicide detectives did not obtain a warrant prior to going through the phones. Further, detectives began answering incoming calls to the phone that had been linked to Jeff.

One person called and eventually told detectives that the phone number belonged to Fulton and that she regularly purchased heroin from him. Armed with this information, detectives interrogated Fulton, and Fulton promptly incriminated himself in the shooting. Police obtained a search warrant for Fulton’s residence and found ammunition which was the same as that used in the fatal shooting. Police also interviewed some of the other men who they had arrested along with Fulton and obtained statements from them which implicated Fulton in the murder. Accordingly, police charged Fulton with murder.

The Motion to Suppress

Prior to trial, Fulton moved to suppress the evidence obtained from the warrantless search and use of the cell phone. The trial court denied the motion, but the trial court made its decision prior to the United States Supreme Court’s decision in Riley v. California holding that police must obtain a warrant prior to searching a cell phone. Fulton went to trial and was eventually convicted of third-degree murder and sentenced to 15-30 years of incarceration. Fulton appealed to the Superior Court, and the Superior Court denied the appeal.

By the time of the Superior Court’s decision, the United States Supreme Court had held that police may not search a phone without a warrant. The Superior Court recognized that police should have obtained a search warrant for the phone, but it held that the intrusion into the phone was minimal because police did not review personal data or social media located on the phone. Therefore, the Superior Court held that Riley did not apply. It also found that to the extent that the police violated Fulton’s rights, the introduction of the illegal evidence amounted to harmless error which would not justify overturning the third-degree murder conviction.

Petition for Allowance of Appeal

Fulton filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court ultimately overturned the defendant’s conviction. The Court concluded that there was really no dispute. Riley’s holding could not be clearer: in order to access any information on a cell phone, police must first obtain a warrant. The Supreme Court did not create an exception for what police or courts may deem a minimally invasive search of a cell phone. The Court specifically rejected a case-by-case test for searches of phones. Instead, it held that police simply must get a warrant or they cannot use the results of the search of a cell phone in court. Any search of a cell phone requires a warrant.

The Court concluded that homicide detectives conducted three separate searches of the phone without a warrant. First, they searched the phone by powering it on. Second, they searched the phone by going into it and obtaining its phone number. Third, they searched the phone by monitoring incoming calls and text messages.

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Philadelphia Criminal Defense Lawyers

Having concluded that the police violated Fulton’s rights by searching the phone without a warrant, the Court next found that the constitutional violation did not amount to harmless error. The Court ruled that all of the evidence that was found due to the searches of the phone must be suppressed. This included the existence of the woman who identified Fulton as a drug dealer, her statement, and the evidence that the phone number was the same number as that for Jeff. Given the extensive use of this evidence against the defendant at trial and the fact that much of the evidence was contradicted and inconsistent, the Supreme Court rejected the idea that the conviction could stand under the harmless error doctrine. Accordingly, the Court vacated the conviction and ordered a new trial for Fulton without the illegally seized evidence. 

Third Circuit Applies Good Faith Exception to FBI Reliance on Jurisdictionally Defective Search Warrant in Child Porn Malware Case

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Third Circuit has just decided the case of United States v. Werdene. In Werdene, the Third Circuit held that Federal Bureau of Investigation agents acted in good faith on a jurisdictionally defective search warrant which authorized them to install malware/tracking software on users outside of the district in which the warrant was issued as part of an investigation into child pornography. The facts of the case are notable because in this case, the Government seized a child pornography server and continued to operate it, thereby distributing child pornography as part of its attempt to identify the users of the server. Nonetheless, because agents believed they had obtained a valid search warrant, the Third Circuit held that the lower court properly declined to suppress the resulting evidence. 

United States v. Werdene

The Werdene case began with an FBI investigation into a website called Playpen. Playpen was a forum on the dark web that was used to distribute child porn. Specifically, Playpen was on the Tor network. Users were able to conceal their actual IP addresses while accessing the network, making it difficult for law enforcement to track the users of the website even if law enforcement seized the site itself. Under normal circumstances, when law enforcement seizes a website, officers can obtain logs of the IP addresses which have accessed the site. They can then trace those IP addresses back to specific internet accounts and obtain search warrants for those users’ homes or businesses. The Tor network prevents the server that the user accesses from recording the user’s actual IP address, thereby making it difficult, if not impossible, for law enforcement to obtain a list of IP addresses that accessed the site even after they seize the server itself. 

In 2014, the FBI learned that Playpen was actually being hosted on a computer in North Carolina. The FBI quickly arrested the owner of the site and also obtained a warrant to seize the server. The FBI then moved the server to a government facility in the Eastern District of Virginia and obtained a wiretap order to monitor the communications on the server. The FBI continued to operate the Playpen website and distribute child pornography in the hopes of developing a method to circumvent Tor and identify the users of the website.

In order to get around Tor's privacy protections, the FBI created a form of malware that would provide it with a user’s IP address when the user accessed the site. The FBI changed Playpen’s code so that when a user accessed the website, the user would automatically download software which would search the computer for its IP address and other identifying information and transmit that information to the FBI.

Prior to deploying this software, the FBI obtained a search warrant from a magistrate judge in the Eastern District of Virginia permitting it to deploy the malware on the computers that accessed the website. The order authorized the FBI to install the code on computers “wherever located.” Thus, this one warrant issued by a single Magistrate Judge in Virginia authorized the FBI to search computers across the world, most of which were located outside of that judicial district in Virginia.

The data from the malware eventually revealed that the defendant in the case had accessed the site and downloaded child pornography. The FBI obtained a search warrant for his home from a magistrate judge in the Eastern District of Pennsylvania, seized his computers, and found incriminating materials. Accordingly, federal prosecutors charged him with possession of child pornography in violation of 18 U.S.C. Sec. 2252(a)(4)(B).

Motion to Suppress

Werdene moved to suppress the evidence, arguing that FBI agents relied on an improperly issued search warrant because the warrant failed to comply with the jurisdictional requirements of then Rule 41(b) of the Federal Rules of Criminal Procedure. Rule 41(b) has since been amended to avoid the issues raised by this case. At the time, it gave a magistrate judge the power to “issue a warrant to search for and seize a person or property located within the district.” It also contained four exceptions, none of which authorized a magistrate judge to issue a search warrant for property outside of the judge’s district. Accordingly, the Third Circuit found that the search warrant was invalid because the magistrate judge did not have the authority under the rules to issue it. The court further concluded that the warrant was void ab initio, meaning it would be the same as if the Government had no warrant at all.

The Good Faith Exception to the Exclusionary Rule 

Nonetheless, the Third Circuit refused to suppress the evidence. Instead, it found that the agents acted in good faith when they relied on the defective search warrant. The purpose of the exclusionary rule, which requires the suppression of some illegally seized evidence, is to deter illegal police conduct. Where suppression of the evidence would have no deterrent effect because police acted in good faith, federal courts will refuse to suppress the evidence.

Notably, Pennsylvania courts have repeatedly rejected this good faith exception and held that the Pennsylvania Constitution, unlike the United States Constitution, requires the suppression of illegally seized evidence even where the police acted in good faith. Here, the court found that the FBI believed they had a valid search warrant. Therefore, there would be no deterrent effect to be gained suppressing the evidence. The error was committed by the judge, not by the FBI. Accordingly, the court found that the good faith exception applied and refused to reverse the trial court’s decision.

Facing Criminal Charges? We Can Help.

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If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of cases in state and federal courts throughout Pennsylvania and New Jersey. We offer a complimentary 15-minute criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation by law enforcement. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

 

Pre-trial Release in New Jersey

Goldstein Mehta LLC Criminal Defense Lawyers

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges in New Jersey, we can help. The first step anytime you are facing charges or believe you may be under investigation is to speak with an experienced criminal defense attorney about your options. We regularly defend clients who are charged with a wide variety of offenses in New Jersey, including in counties such as Camden, Somerset, Hunterdon, Ocean, Cape May, and Atlantic County. We offer a free 15-minute criminal defense strategy session to any potential client who is under investigation or who is facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

How does bail work in New Jersey?

New Jersey recently implemented a bail system which is very different from the systems in place in most of the rest of the country in that New Jersey no longer relies on cash bail. New Jersey's system closely mirrors the systems in use in Washington, D.C. and the federal courts. However, the system is probably more favorable to defendants in that the majority of criminal defendants are released pending trial.

The first step in the criminal justice system in any state is typically the bail determination. In other words, the first hearing is to determine whether the defendant will be released pending trial or detained. In Pennsylvania, courts still rely on cash bail in determining whether or not a defendant should be released pending trial. This means that a magistrate sets the bail amount at a preliminary arraignment, and if the defendant can pay that bail (usually 10% of the set amount), then the defendant will be released pending trial and will not spend any time in jail unless convicted.

A cash bail system is inherently unfair because it allows wealthier defendants to be released pending trial in even the most serious cases short of homicide while poorer defendants could languish in jail for years until their trial date. Because they are stuck in jail pending trial dates, which often get delayed, those defendants face a tremendous incentive to take a plea deal in order to get out of jail. Although Philadelphia’s new District Attorney has made promises to end cash bail, this has not happened yet.

Changes to New Jersey’s Bail System  

New Jersey’s new bail system, although not perfect, resolves many of those problems. In January 2017, New Jersey switched to an entirely new system that almost completely does away with cash bail. According to a recent Philly.com article, only 44 New Jersey defendants were required to pay bail in exchange for release in 2017. Instead, when a defendant is arrested in New Jersey, it is generally presumed for most offenses that the defendant will be released. If the prosecution looks at the offense and the defendant’s background and believes either that the defendant is a risk to the community, likely to try to intimidate witnesses, or unlikely to appear for court, then the prosecution may file a motion for pre-trial detention.

The first court date in New Jersey is typically the first appearance. Most defendants will receive a summons to appear for the first appearance, and it is generally expected that the prosecution will file a motion for pre-trial detention prior to the first appearance. If the prosecution does not file the motion for pre-trial detention, then the defendant will be released pending trial and will remain free unless the circumstances change. A change in circumstances could include the defendant picking up new criminal charges or failing to appear for court. Barring that, the defendant will usually remain free pending trial. 

What offenses could result in pre-trial detention in New Jersey?

The prosecution may only file a motion for pre-trial detention in cases involving indictable offenses or in disorderly persons offenses involving domestic violence. If you are charged with a disorderly persons offense that does not involve domestic violence, then you should not ordinarily be detained pending trial.   

When will the detention hearing occur?

If the prosecution files a motion for pre-trial detention, then the Superior Court judge assigned to the case or to pre-trial detention hearings must hold a hearing on the motion within three days of the filing of the motion. The prosecution or defense counsel may request a continuance of the hearing, but unless one of the parties shows good cause, the continuance may not exceed five business days if made by the defense. If made by the prosecution, the continuance of the pre-trial detention hearing may not exceed three business days. The court has the authority to detain the defendant until the hearing, which is why the rule limits the length of these continuances absent a showing of good cause. 

What happens at a pre-trial detention hearing in New Jersey?

The pre-trial detention hearing looks relatively similar to a bail hearing under the previous law. The defendant has the right to an attorney, meaning he or she may retain an attorney and have that attorney present. If the defendant cannot afford an attorney, then the court must appoint an attorney for the defendant. The defense has the right to present witnesses and evidence and cross-examine the prosecution’s witnesses, and the defendant always has the right to be present at the hearing. In order to have a defendant held pending trial, the prosecution must show two things:

First, the prosecution must show that there is probable cause to believe that the defendant has committed the crime charged. If the defendant has not been indicted yet, then the prosecution must present evidence to the court to establish probable cause. This would often involve presenting police reports or testimony from the lead detective in the case to the court. If the defendant has already been indicted by a grand jury, then probable cause exists and the prosecution does not again have to show probable cause.

Second, the prosecution must show that the defendant is a flight risk, likely to obstruct justice, or a danger to the community. The prosecution must make this showing at a clear and convincing evidence standard. For a limited number of offenses, there is a presumption that the defendant is a flight risk and danger to the community. These are offenses like murder, rape, and other offenses which are punishable with a life sentence in prison. For most offenses, however, there is a presumption that the defendant should be released. If there is a presumption that the defendant should be detained due to the nature of the offense charged, then the defendant must present evidence in order to rebut the presumption assuming that the prosecution establishes probable cause. If the presumption is that the defendant should be released, then the prosecutor must present evidence that the defendant should be held pending trial.

New Jersey’s new law created a new office of Statewide Pretrial Services which is charged with creating risk assessment reports for each defendant who is charged with an offense for which they could be detained. The Pretrial Services office will gather information about the defendant and prepare a report for the court along with a recommendation as to whether the defendant should be released. When making its detention decision, the trial court is directed to consider the following factors:

a. The nature and circumstances of the offense charged;

b. The weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;

c. The history and characteristics of the eligible defendant, including:

(1)the eligible defendant's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(2)whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;

d. The nature and seriousness of the danger to any other person or the community that would be posed by the eligible defendant's release, if applicable;

e. The nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant's release, if applicable; and

f. The release recommendation of the pretrial services program obtained using a risk assessment instrument under section 11 of P.L.2014, c.31 (C.2A:162-25).

The recommendation of the Pretrial Services report is extremely important to the court. However, if either side disagrees with the recommendation, that attorney for that party may present evidence and argument as to why the recommendation is wrong.  

Because there is a presumption that most defendants be released, the result of this new system has been that most defendants are being released pending trial.

What conditions could the court impose on my release? 

New Jersey provides for different levels of supervision upon release which could include checking in regularly with a pre-trial officer by phone or in person or even house arrest with electronic monitoring. However, even in very serious cases, many defendants who would have been detained on exorbitant bail under the old system are now released pending trial. This means that they may continue working, going to school, and will have much easier access to their attorney and a greater ability to prepare for trial.

Can I appeal a pre-trial detention decision? Can the prosecutor appeal?

Both the defense and the prosecution may appeal a pre-trial detention decision to New Jersey’s appellate court. Either side may appeal to the appellate court by filing a notice of appeal within 48 hours of the trial court’s decision to either detain or release the defendant. Additionally, either side may file a motion to re-open the trial court’s decision with the trial judge if new circumstances or information comes to light.  

Facing Criminal Charges in New Jersey? We can help.

Criminal Lawyer Zak Goldstein

Criminal Lawyer Zak Goldstein

Our Philadelphia criminal defense lawyers regularly defend clients in the criminal courts throughout New Jersey. We have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. If you are facing criminal charges or under investigation for a crime, we offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an experienced and understanding criminal defense attorney today.

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New Jersey’s Pre-trial Detention Rule

Rule 3:4A. Pretrial Detention

(a) Timing of Motion. A prosecutor may file a motion at any time seeking the pretrial detention of a defendant for whom a complaint-warrant or warrant on indictment is issued for an initial charge involving an indictable offense, or a disorderly persons offense involving domestic violence, as provided in N.J.S.A. 2A:162-15 et seq. A defendant who is the subject of a warrant on indictment is an eligible defendant pursuant to N.J.S.A. 2A:162-15 et seq.

(b) Hearing on Motion.

(1) A pretrial detention hearing shall be held before a Superior Court judge no later than the defendant’s first appearance unless the defendant or the prosecutor seeks a continuance or the prosecutor files a motion at or after the defendant’s first appearance. If the prosecutor files a motion at or subsequent to the defendant’s first appearance the pretrial detention hearing shall be held within three working days of the date of the prosecutor’s motion unless the defendant or prosecutor seek a continuance. Except for good cause, a continuance on motion of the defendant may not exceed five days, not including any intermediate Saturday, Sunday or holiday. Except for good cause, a continuance on motion of the prosecutor may not exceed three days, not including any intervening Saturday, Sunday or holiday. The Superior Court judge in making the pretrial detention decision may take into account information as set forth in N.J.S.A. 2A:162-20.

(2) The defendant shall have a right to be represented by counsel and, if indigent, to have counsel appointed if he or she cannot afford counsel. The defendant shall be provided discovery pursuant to Rule 3:4-2(c)(1)(B). The defendant shall be afforded the right to testify, to present witnesses, to cross-examine witnesses who appear at the hearing and to present information by proffer or otherwise. Testimony of the defendant given during the hearing shall not be admissible on the issue of guilt in any other judicial proceeding, but the testimony shall be admissible in proceedings related to the defendant’s subsequent failure to appear, proceedings related to any subsequent offenses committed during the defendant’s release, proceedings related to the defendant’s subsequent violation of any conditions of release, any subsequent perjury proceedings, and for the purpose of impeachment in any subsequent proceedings. The defendant shall have the right to be present at the hearing. The rules governing admissibility of evidence in criminal trials shall not apply to the presentation and consideration of information at the hearing. The return of an indictment shall establish probable cause to believe that the defendant committed any offense alleged therein. Where there is no indictment at the point of the detention hearing, the prosecutor shall establish probable cause that the defendant committed the predicate offense.

(3) A hearing may be reopened at any time before trial if the court finds that information exists that was not known by the prosecutor or defendant at the time of

the hearing and that information has a material bearing on the issue of whether there are conditions of release that will reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, or that the defendant will not obstruct or attempt to obstruct the criminal justice process.

(4) Presumption of detention. When a motion for pretrial detention is filed pursuant to paragraph (a), there shall be a rebuttable presumption that the defendant shall be detained pending trial because no amount of monetary bail, non-monetary condition or combination of monetary bail and conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process, if the court finds probable cause that the defendant: (i) committed murder pursuant to N.J.S.A. 2C:11-3; or (ii) committed any crime for which the defendant would be subject to an ordinary or extended term of life imprisonment.

(5) Presumption of release. Except when a presumption of detention is required pursuant to paragraph (b)(4), when a motion for pretrial detention is filed pursuant to paragraph (a), there shall be a rebuttable presumption that some amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct or attempt to obstruct the criminal justice process.

The standard of proof for the rebuttal of the presumption of pretrial release shall be by clear and convincing evidence. The court may consider as prima facie evidence sufficient to overcome the presumption of release a recommendation by the Pretrial Services Program established pursuant to N.J.S.A. 2A:162-25 that the defendant’s release is not recommended (i.e., a determination that “release not recommended or if released, maximum conditions”). Although such recommendation by the Pretrial Services Program may constitute sufficient evidence upon which the court may order pretrial detention, nothing herein shall preclude the court from considering other relevant information presented by the prosecutor or the defendant in determining whether no amount of monetary bail, non-monetary bail conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the defendant will not obstruct the criminal justice process.

(c) Pretrial Detention Order. If the court determines that pretrial detention is necessary it shall issue an order containing written findings of fact and a written statement of reasons for the detention. That order shall also direct that the defendant be afforded reasonable opportunity for private consultation with counsel.

(d) Temporary Release Order. The court may issue an order temporarily releasing the defendant, subject to conditions, to the extent that the court determines the release is necessary for the preparation of a defendant’s defense or for another compelling reason.

(e) Interlocutory Order from Appellate Division. Nothing in this Rule shall be deemed to preclude the State’s right to seek an interlocutory order from the Appellate Division within 48 hours. 

PA Superior Court Finds Birchfield Not Retroactive in PCRA Litigation 

Criminal Lawyer Zak Goldstein

Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Olson, holding that the new rule relating to DUI blood testing cases announced by the United States Supreme Court in Birchfield v. North Dakota may not be raised to challenge a DUI conviction in collateral litigation. This means that defendants who have been convicted of DUI based on evidence obtained via a now-illegal warrantless, coercive blood draw may not challenge their convictions by filing a Post-Conviction Relief Act Petition in Pennsylvania state court.

Commonwealth v. Olson

In Olson, the defendant pleaded guilty to one count of Driving Under the Influence in September 8, 2015. Because the defendant had numerous prior convictions for DUI, he was sentenced to 18 months to 5 years in state prison. He did not file an appeal to the Superior Court.

Instead, on August 17, 2016, he filed a Post-Conviction Relief Act Petition challenging the legality of his sentence. The defendant argued two issues: first, that the mandatory minimum sentence that he received for his criminal conviction was rendered unconstitutional by the Birchfield decision. Second, he argued that Birchfield created a new substantive rule which courts must apply retroactively where the defendant timely files a PCRA Petition.

What is Birchfield

By way of background, Birchfield was an extremely important, recent United States Supreme Court decision in which the Court held that states may not impose criminal penalties on DUI suspects who refuse to consent to blood testing if the police have not obtained a warrant. This had the effect of radically changing Pennsylvania’s DUI laws because Pennsylvania had statutes on the books which imposed additional penalties on a DUI defendant in cases where the prosecution could prove that the defendant both was driving under the influence and that the defendant refused blood testing. Accordingly, Pennsylvania appellate courts have now found many sections of Pennsylvania’s DUI statute unconstitutional. Birchfield was decided between when the defendant in this case was sentenced and when the defendant filed the PCRA Petition, meaning the defendant sought to apply Birchfield to his case even though his case was already over by the time Birchfield was decided.

PCRA Petitions 

PCRA Petitions are initially filed in the trial court in which the defendant was convicted. If a trial court denies a PCRA Petition, the court’s decision can be appealed to the Superior Court. Here, the defendant filed his PCRA Petition in the trial court, and the trial court dismissed the petition, finding that the Petition was not timely filed and that the rule in Birchfield did not apply retroactively to cases which were no longer on direct appeal. The defendant appealed, and the Superior Court affirmed the decision of the trial court.

Is Birchfield Retroactive? 

The Superior Court found that Birchfield does not apply retroactively to closed cases. It cited previous case law for the proposition that “a new rule of law does not automatically render final, pre-existing sentences illegal.” Instead, an old rule applies in PCRA litigation, also known as collateral review, if 1) the rule is substantive or 2) the rule is a ‘watershed rule of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding. Substantive rules decriminalize conduct or prohibit punishment against a class of persons. Rules that regulate only the manner of determining the defendant’s culpability are procedural.

The Court first found that the rule in Birchfield requiring a warrant before criminal penalties for refusing a blood draw could be imposed is procedural. The court reasoned that it does not alter the range of conduct or the class of persons punished by the law – DUI is still a crime, and blood tests are still permissible. Instead, it regulates only the manner of determining the degree of a defendant’s culpability.

Accordingly, as the law stands now, Birchfield challenges cannot be raised by filing a Post-Conviction Relief Act Petition. However, additional appellate litigation may take place, and the Pennsylvania Supreme Court or United States Supreme Court could review this decision and reach a different conclusion. It is important to note that Birchfield continues to apply in pending DUI cases. States may not punish defendants who refuse to submit to warrantless blood tests for refusing to submit to the test.

Facing Criminal Charges? We Can Help

Philadelphia Criminal Defense Attorneys

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers and DUI defense attorneys have successfully defended thousands of cases. We offer a complimentary 15-minute criminal defense strategy session to every potential client who is facing criminal charges or who may be under investigation by law enforcement. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.