Gun Charges

PA Supreme Court: Police Cannot Legally Stop You Just For Carrying A Gun

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Hicks, holding that the police cannot stop someone just because they believe the person has a gun. This decision could affect hundreds of cases, especially in Philadelphia, where the police routinely stop people for carrying guns without any actual knowledge of whether that person may be carrying lawfully.

Commonwealth v. Hicks

On June 28, 2014, at approximately 2:30 A.M., a remote camera operator conducting live surveillance of a gas station and convenience store in Allentown, Pennsylvania notified police officers that a patron of the establishment was in possession of a firearm. The camera operator advised officers that the individual showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside the convenience store. This individual eventually became the defendant. Notably, the defendant possessed a valid license to carry a concealed firearm, and he was not statutorily prohibited from possessing a firearm. Accordingly, on the morning in question and at the observed location, there was nothing unlawful about the defendant’s possession of the handgun nor the manner in which he carried it. It is also not illegal to show a gun to someone else (so long as you do not point it at them).

While responding officers were en route, the defendant entered and exited the convenience store and then reentered his vehicle. Before the defendant could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped his vehicle. Believing that the defendant had moved his hands around inside the vehicle, one of the officers drew his service weapon as he approached the defendant’s vehicle and ordered him to keep his hands up. Other officers came and restrained the defendant and removed the firearm. The officers stated that there was an odor of alcohol emanating from the defendant. They then searched him and recovered a small amount of marijuana.

Because the defendant had a license to carry a firearm, he was not charged with any crimes relating to the firearm. However, he was charged with DUI, possession of a small amount of marijuana, and disorderly conduct. The defendant filed an omnibus pre-trial motion seeking suppression of the evidence. He also filed a writ of habeas corpus alleging that there was not sufficient evidence to hold him for trial on the charge of disorderly conduct. The trial court agreed and dismissed the disorderly conduct charge. However, the court denied his motion to suppress.

In denying his motion, the trial court stated that possession of a concealed weapon in public creates the reasonable suspicion justifying an investigatory stop in order to investigate whether the person is properly licensed. This was based on the Pennsylvania Superior Court decision in Commonwealth v. Robinson (this is also referred to as “The Robinson Rule”). After the motion, the defendant proceeded to a non-jury trial where the court found him guilty of one count of DUI and acquitted him of the remaining charges. He was sentenced to a term of incarceration of thirty days to six months and was assessed a monetary fine. The defendant subsequently filed an appeal. The Superior Court affirmed his decision. Like the trial court, the Superior Court focused mainly on The Robinson Rule and held that the officers had reasonable suspicion to stop the defendant. The defendant then filed an allowance of appeal to the Pennsylvania Supreme Court which was granted.

What is the Robinson Rule?

The Robinson Rule was a rule that provided that carrying a concealed firearm constituted per se reasonable suspicion authorizing the use of official force to seize an individual in order to investigate whether the person is properly licensed. In other words, if the police received information that you were in possession of a firearm you could be stopped, by force if necessary and without a warrant, and subjected to an investigation to determine whether or not you were lawfully allowed to possess the firearm.

For those of you familiar with the Terry doctrine, this seems out of place with it because possessing a firearm is often not illegal. The Second Amendment of the United States Constitution allows for individuals to possess firearms. Because a Terry stop is only warranted when the officer has a reasonable suspicion that criminal activity is afoot (or in other words an objectively reasonable belief based on all of the facts known to the officer that the person stopped is, or is about to be, engaged in criminal activity). With Terry in mind, it seems peculiar that The Robinson Rule would be constitutional. This is what the defendant argued in his appeal to the Pennsylvania Supreme Court.

Carrying A Gun Does Not Give Police Reasonable Suspicion

In its decision, the Pennsylvania Supreme Court first analyzed several of its prior decisions and decisions from other jurisdictions that addressed the issue of whether the police can stop someone for possession of a firearm. For instance, the Court analyzed the decisions in Commonwealth v. Hawkins and Commonwealth v. Jackson, two cases that are routinely cited when litigating a motion to suppress a gun. In these decisions, the Pennsylvania Supreme Court highlighted how its predecessors routinely dismissed the Commonwealth’s argument that the police can stop someone simply because they have information that they have a gun.

The Court also applied the Terry and its progeny of cases to the facts in the defendant’s case. Based on its analysis, the Pennsylvania Supreme Court found that The Robinson Rule subverts the fundamental principles of Terry. The Court stated “[w]e find no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public…it is not a criminal offense for a license holder…to carry a concealed firearm in public.” The Court further stated “[u]nless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there is simply no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.”

Finally, the Court analogized this to driving a car. It is obviously a requirement for someone to have a driver’s license to operate a motor vehicle, however the police cannot stop every single person to ascertain this information. Because possessing a gun is legal, police are not allowed to stop every person to see if they have a license. Consequently, the Supreme Court found that the lower courts erred when denying the defendant’s motion to suppress. Therefore, the Court remanded the case for the trial court to rule on whether police had any basis for stopping the defendant beyond his mere possession of a concealed weapon.

Facing criminal charges? We can help.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Police Justified in Stopping Car That Left Travel Lane Four Times

Zak Goldstein Criminal Defense Lawyer

The Pennsylvania Superior Court has decided the case of Commonwealth v. Cephus. The court held that the Montgomery County Court of Common Pleas properly denied the defendant’s motion to suppress because state troopers had probable cause to stop the defendant for motor vehicle code violations after they observed the defendant’s car crossing into another lane of travel three or four times.

Can Police Stop You For Briefly Crossing Into Another Lane of Travel?

In short, the law is not totally clear in Pennsylvania. It depends on all of the circumstances and how many times you cross the line, and courts have reached conflicting opinions when confronted with different sets of facts.

In Cephus, Pennsylvania State Troopers were traveling westbound on Route 422 in Montgomery County, PA when they saw a silver Cadillac cross the center dotted line dividing the two westbound lanes of travel. After seeing this happen at least once, they activated the dash cam on their police car. The dash cam showed that the Cadillac traveled approximately a couple hundred yards and crossed over the center line three times during that period. The officer could not remember exactly how many times he had seen the Cadillac cross the line in total. Due to the failure of the Cadillac to maintain its lane, the troopers activated their lights and sirens and pulled the car over.

After approaching the vehicle, the troopers smelled the odor of marijuana coming from the car and observed numerous air fresheners. They also claimed that the defendant, who was in the driver’s seat, was sweating and seemed nervous. Therefore, they ordered him out of the car. They then asked if they could search the car, and the defendant told them that they could. One of the troopers found a gun in the center console as well as other drug paraphernalia in the vehicle. The defendant passed out.

Gun Charges 

The troopers charged the defendant with various firearms and drug offenses, including Persons Not to Possess a Firearm (VUFA 6105), Firearms not to be Carried Without a License (VUFA 6106), Drug Paraphernalia, and Roadways Laned for Traffic.

The defendant filed a motion to suppress, arguing that the police officers did not have probable cause to stop him and therefore the search was the fruit of the poisonous tree from the unlawful stop. The trial court denied the  motion to suppress, finding that police had probable cause to stop the defendant for a potential violation of 75 Pa.C.S. Sec. 3309(1) of the Motor Vehicle Code.

That section provides that “A vehicle shall be driven as nearly as practicable entirely within a single lane of travel and shall not be moved from the lane until the driver has first ascertained that the movement can be made safely.”

Because a violation of this section requires no further investigation, police must have probable cause to make a stop instead of mere reasonable suspicion. The trial court, however, held that the officers had probable cause because the vehicle had crossed the line at least four times in a relatively short period of time without any obvious explanation such as objects in the road or other hazards.

The Superior Court Appeal

After denying the motion to suppress, the court found the defendant guilty and sentenced him to 5-10 years’ incarceration. The defendant appealed to the Pennsylvania Superior Court, and the Superior Court affirmed the conviction. The court recognized that there have been inconsistent rulings on how police officers should interpret the statute relating to remaining in one lane of travel. For example, in Commonwealth v. Gleason, the Pennsylvania Supreme Court held that police did not have probable cause for a stop after seeing a motorist’s tire cross the line two times on only two occasions over a distance of approximately one quarter mile. At the same time, in Commonwealth v. Anderson, the Superior Court upheld the denial of a motion to suppress where the defendant’s vehicle straddled a double yellow line for two blocks and then stopped for an inordinate and inexplicable amount of time without being prompted to do so by traffic signs.

Despite this case seeming to be more like Commonwealth v. Gleason, the Superior Court concluded that crossing the line on at least four occasions over a short period of time provided the officers with probable cause and justified the stop. Therefore, the court upheld the denial of the motion to suppress and the defendant’s conviction. At the same time, it urged the legislature to clarify the statute so that police have additional guidance on what exactly the somewhat-vague statute requires prior to a stop. Even after this case, it likely remains the law in Pennsylvania that briefly crossing into the adjoining lane for a moment or two on one or two occasions will not support a stop, but more than that could provide police with probable cause. This statute, unfortunately, is ripe for abuse because it is very easy for a police officer to claim that a defendant left the lane of travel a couple of times, and it is almost impossible for a defendant to prove otherwise. Fortunately, many officers are now wearing body cameras or have vehicles equipped with dash cams, and this makes it more difficult for officers to fabricate the reasons for a stop.

Facing criminal charges? We can help.

Criminal Defense Attorneys

Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Is it illegal to have a broken gun without a license in PA?

Does a gun have to work for the DA to prove a Violation of the Uniform Firearms Act?  

Philadelphia Gun Charges Defense Lawyer Zak Goldstein

Philadelphia Gun Charges Defense Lawyer Zak Goldstein

One potential defense to certain gun charges in Pennsylvania is that the gun did not actually work. Pennsylvania law makes it illegal to carry or possess a firearm under certain circumstances. First, it is usually illegal under 18 Pa.C.S. Section 6106 to carry a gun in a concealed manner or in a car without a concealed carry permit. Second, it is illegal under 18 PA.C.S. Section 6108 to carry a gun on the streets of Philadelphia without a permit. Third, it is illegal under 18 Pa.C.S. Section 6105 for someone who has been convicted of certain crimes (including a number of different felonies and misdemeanors) to have a gun at all. A violation of section 6106 is usually a felony of the third degree. A violation of section 6108 is a misdemeanor of the first degree, and a violation of section 6105 is usually a first-degree felony which can carry up to twenty years in jail.

In cases involving violations of sections 6106 and 6108, it could be a defense to the charges that the Commonwealth cannot prove that the gun was operable – meaning that it actually worked or was able to fire a shot without significant repairs.

In cases involving violations of sections 6105 (the felon in possession statute), the Commonwealth does not have to prove that the gun actually worked as it is illegal for a felon to carry even a broken gun. This is because the 6105 statute uses a different definition of a firearm. 6106 and 6108, however, have been interpreted by the Pennsylvania Supreme Court to require that the gun actually works. However, the DA does not have to prove that the gun worked in every case. Instead, either the prosecution or the defense must have introduced some evidence at trial that the gun was not operable, and then the burden shifts to the prosecution to prove that the gun was operable beyond a reasonable doubt.

In a case called Commonwealth v. Layton, the Pennsylvania Supreme Court first held that a gun must be operable in order for the prosecution to find a violation of section 6106 or 6108. However, operable does not necessarily mean that the gun could fire a shot at the time it was recovered. Instead, a gun is also operable if “the alleged actor had under his control the means to convert the object into one capable of firing a shot.” Thus, “an operable firearm may be said to be under the control of the alleged actor even though it is a malfunctioning assembled firearm or a disassembled firearm, if the alleged actor has under his control the means to convert the inoperable firearm into an operable firearm.” “For example, a reasonable fact finder might conclude, under all of the circumstances, that an operable firearm was under the control of the actor even though the stock, barrel, trigger housing group, or firing mechanism were in different rooms in the same apartment or might infer control if a damaged part were readily repairable.” In the Layton case, the gun was not capable of firing a shot and the defendant did not have anything in his possession which could be used to repair it, so the Supreme Court reversed the defendant’s conviction. In more recent cases such as In Re S.H., the Superior Court has found that guns were not operable when they had broken firing pins.

Although operability requires either that the gun be able to fire a shot or that the defendant had under his control the means to convert the object into one capable of firing a shot, the Commonwealth can still obtain a conviction if it can prove that the gun could be made capable of firing a shot relatively easily. For example, in various cases, the Superior Court has held that a gun which requires minor repairs in order to fire a shot can still be operable.

In Commonwealth v. Siiams, the Superior Court held that a gun was still operable for purposes of 6106 and 6108 even though the firearms examiner had to twist a key piece of the gun back into place with pliers in order to get it to fire. Likewise, in Commonwealth v. Gainer, the gun was found to be operable where the examiner testified that he had to file down a metal burr that had formed inside the pistol which prevented a round from chambering. The burr, however, could be removed within a matter of seconds or minutes by using an ordinary manual file. Even though there was no evidence that the defendants in these cases could have actually performed these repairs themselves, the Superior Court concluded that the weapons were readily repairable using easily available means and that they did not require adding new parts to the gun. Therefore, the court found that the guns were operable. Likewise, in Commonwealth v. Stevenson, the Superior Court held that where a gun was able to fire a shot as submitted but had a firing pin which would immediately fall out and have to be re-inserted, the gun was operable because it could fire the shot at the time it was submitted.

In general, these cases mean that if the defense can introduce some evidence that a gun did not work at the time that it was recovered, and the Commonwealth then fails to show beyond a reasonable doubt that the gun could be easily repaired without necessarily adding new parts, a court may acquit the defendant of violations of sections 6106 and 6108. It is important to remember that operability is not a defense to a violation of section 6105 because a felon may not possess even a broken gun, and unless there is first some evidence that the gun did not work, the Commonwealth may not have to prove operability at all.  

Can I be convicted of gun charges if the police never found the gun?

Another issue that frequently comes up relating to operability is when the police claim that the defendant committed a crime such as robbery or assault with a firearm but the police never actually recovered the gun. In other words, if a defendant is charged with robbing a store with an object that looks like a gun, but the defendant never fired the gun and the police never recovered it during their investigation, does the Commonwealth have to prove that it was actually a gun instead of a replica in order to obtain a conviction for gun charges or a sentencing enhancement for using a deadly weapon?

In general, the answer to this question is usually not. The Commonwealth typically does not have to prove that the gun used in a robbery was actually a gun. Instead, appellate courts have heard that even if the gun was never fired, a conviction can be obtained so long as the object in question sufficiently looked like a real gun. Thus, if a witness describes a grey firearm that looked like a revolver, that could be enough for the DA to obtain a conviction for a gun charge.

In some cases, however, there could be a defense to the gun charges if the witnesses cannot really describe the object or if there is conflicting testimony as to what it looked like. Therefore, it is still often worth cross-examining witnesses on why they believed the object to be a gun. If they are not really sure whether it was a gun or a replica, or if there was something weird about it that suggests that it might not be real, then the Commonwealth could be unable to meet its burden beyond a reasonable doubt. However, because the defense must introduce some evidence of operability in order to shift the burden to the Commonwealth, this will not always be a defense. Therefore, it is not necessarily illegal to have a broken gun without a license in Pennsylvania, but it is still risky because the Commonwealth could potentially obtain a conviction if the gun can be fixed with minor repairs or if the gun is never recovered.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorneys

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Case Dismissed: Motion to Suppress Firearm With Obliterated Serial Number Granted

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The criminal defense lawyers of Goldstein Mehta LLC have continued to win difficult cases in the courtroom. In the case of Commonwealth v. A.T., Philadelphia defense attorney Zak T. Goldstein, Esquire recently won a motion to suppress in a case involving gun charges including Violations of the Uniform Firearms Act Sections 6106, 6108, and 6110. Those charges involve carrying a firearm in a vehicle without a concealed carry permit, carrying a firearm on the streets of Philadelphia, and possessing a firearm with a missing or obliterated serial number. The court’s decision to grant the motion to suppress resulted in the dismissal of all of the gun charges against A.T.

In A.T., Philadelphia police conducted the stop of a car in which the defendant was a passenger. Officers claimed that when they ran the car’s license plate through the NCIC system, the system returned a result indicating that it had no records for the car. The officers, believing that this could possibly, but not definitely, mean that that the car was unregistered, then proceeded to stop the car without any other indications of criminal activity or motor vehicle code violations.

The officers activated their lights and sirens, and the car pulled over on command. The officers claimed that when they approached the car to ask for the paperwork, they were immediately able to smell a potent odor of marijuana. The officer, however, testified that he was able to smell both fresh and burnt marijuana. They then testified that the driver admitted to having smoked marijuana recently.

While dealing with the driver, the officer saw the defendant in the back of the car playing with his cell phone. The officer speculated that the defendant was not trying to engage and was trying to keep the focus away from him. They then saw a backpack next to the defendant and asked him about it, and the defendant said it was his. The officers, while attempting to locate the source of the marijuana odor, searched the bag and found a gun with a serial number which had been filed off. They asked the defendant if it was his gun, and he apparently told them that it was his. They also claimed that the backpack had the defendant’s name on it, thereby further proving that the bag and the gun inside of it belonged to the defendant. Finally, they testified that they found a small amount of marijuana in the center console. In total, officers found one yellow tinted glass jar which contained about a gram of marijuana. They did not find any evidence in the car that marijuana had recently been consumed in the car such as roaches or other paraphernalia.

On paper, the case looked difficult because police claimed that they had smelled marijuana and ultimately found marijuana. As a general rule, police officers may conduct the search of a car and the contents of the car when they have probable cause to do so. Probable cause means that based on the totality of the circumstances, including the officers’ experience and training, they are likely to find some contraband or evidence of a crime as a result of a search. When police have probable cause to search a car, they usually do not have to get a warrant first unless the car is parked in the suspect’s driveway. Even though Philadelphia prosecutors do not charge people with the possession of small amounts of marijuana anymore, the possession of even a gram of marijuana remains illegal under state and federal law. Therefore, police officers will frequently assert that they had probable cause based on the odor of marijuana to conduct a search that finds some other sort of contraband such as harder drugs or a gun. If the police really could not determine if the car was unregistered and they really smelled marijuana coming from the car, then they would have been justified in conducting the search.

Attorney Goldstein reviewed the discovery, investigated the case, obtained records from PennDOT, and concluded that the police had likely conducted an unlawful search. First, there were issues with the stop of the vehicle because the car turned out to be registered despite its absence from the NCIC system. Second, the statements from the police officers rang false; the idea that the entire car would smell like marijuana from one gram of marijuana in a sealed container in the center console seemed unlikely, and the claims that the defendant would have his name on the backpack carrying an illegal gun and admit that the gun was his seemed like a stretch. Therefore, Attorney Goldstein filed a motion to suppress alleging that police had unlawfully stopped the car because it was in fact registered and that the police were not telling the truth about the ensuing search of the vehicle and questioning of the defendant. The registration issue was a legal issue - whether the police had reasonable suspicion to stop the car in a case where they genuinely, but incorrectly, believed that the car did not have a registration, but the search would involve issues of credibility. Credibility motions are particularly difficult to win because they require the defense to convince the judge that the police are not telling the truth, and the standard for the admissibility of challenged evidence is much lower than the beyond a reasonable doubt standard that would apply at trial.

The trial court scheduled a motion to suppress, and the officers testified to the above information. On cross-examination, however, Attorney Goldstein was first able to show from the PennDOT paperwork that the car was actually registered, thereby proving that the police had no real basis for stopping the car. Attorney Goldstein was then also able to show that the police version of the search should not be believed for the following reasons: 1) the entire car would not smell like marijuana from one gram of marijuana being in a glass jar in the center console, 2) the officer’s testimony that he could smell both burnt and fresh marijuana was absurd, 3) if the driver had really told them that they had just been smoking marijuana, the officers would have investigated and likely arrested the driver for driving under the influence (“DUI”),  and 4) that the police had not taken the backpack which allegedly had the defendant’s name on it into evidence. Obviously, the officer was forced to admit that they had destroyed critical evidence by not preserving a bag which supposedly proved that the gun belonged to the defendant. Attorney Goldstein also highlighted numerous other inconsistencies between the testimony of the officer and the paperwork that he had created and the testimony that he gave at the preliminary hearing.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

After hearing the testimony of the officer and reviewing the case law on Pennsylvania’s absence of a “good faith exception,” the judge granted the motion to dismiss and precluded prosecutors from introducing evidence of the recovery of the gun or the marijuana at trial. The trial court specifically found that the officers could not be believed because there were just too many new details testified to at the hearing which did not appear in the paperwork. Accordingly, with the motion to suppress granted, prosecutors were obligated to dismiss all of the charges against A.T. Instead of having a felony record and facing significant jail time, A.T. will be eligible to have these serious gun charges expunged.