PA Superior Court Reverses Order Granting Motion to Suppress For Lack of Specificity in Grounds

What is a Motion to Suppress? 

The Motion to Suppress is one of the first lines of defense in any case in which the defendant is charged with possessing some kind of contraband. For a defendant who is charged with the possession of guns or drugs, it may be possible to have the evidence excluded from trial and the charges dismissed if the defendant was subject to an illegal search or seizure. In cases where the prosecution is unable to show that police or other law enforcement officers found the evidence in a manner that complies with the requirements of the United Sates and Pennsylvania Constitutions, the evidence could be suppressed by filing a Motion to Suppress. However, Pennsylvania appellate courts have increasingly required defendants to be very specific when asserting the grounds for the Motion to Suppress in the trial court.

Commonwealth v. Banks

In the case of Commonwealth v. Banks, the Superior Court has reversed an order suppressing a firearm and K2 (synthetic marijuana) whichallegedly belonged to the defendant. The Court concluded that although the trial court found that a constitutional violation had occurred, the defendant’s attorney failed to specifically allege that particular constitutional violation either in his written Motion to Suppress or oral statement of the grounds for the Motion which was made prior to the hearing. Accordingly, the Court found that the Commonwealth did not have a fair opportunity to respond to the alleged constitutional violation, and therefore the suppression order should be reversed.

Banks involved a parole search by Pennsylvania State Parole Agents. According to the agents involved, the Parole Board received an anonymous tip that Banks was violating his parole. Based on the tip, two agents went to Banks’ house and knocked on the door. When Banks emerged from the house, the parole agents questioned him on the front porch. They did not see any contraband in the house when the door was open, and they did not enter the house until after they spoke with Banks. Of course, when the agents asked whether Banks had anything in his house which would violate his parole, Banks freely told them that he had a gun and some synthetic marijuana in the house. Following Banks admissions, the agents entered the house and found the contraband. They then called the police. The police obtained a search warrant and recovered the items.

Standards for Probation Searches and Parole Searches

In Pennsylvania, probation officers and parole agents may conduct two types of searches. They may always make routine home visits in order to check on the probationer or parolee and look for any obvious parole violations. Home visits are limited to a plain-view inspection of a residence. Additionally, if they have reasonable suspicion of a parole violation, then parole agents may conduct a full search of the parolee’s residence. In general, anonymous tips do not provide reasonable suspicion because there is no basis for believing them to be trustworthy. Therefore, Banks’ attorneys filed a Motion to Suppress alleging that the firearm and K2 should be suppressed because the parole agents conducted a home search without reasonable suspicion. They further argued that the search was not part of a routine home visit because the agents went out to the house specifically to investigate the anonymous tip.

The trial court disagreed with Banks’ lawyers in part. The court found that the agents violated Banks’ rights, but for different reasons than those alleged in the Motion to Suppress. It found that the agents did not conduct a home search until after Banks confessed to having a gun and synthetic marijuana, and once Banks confessed, the officers clearly had reasonable suspicion to enter the house. However, the court found that the officers conducted the equivalent of a “Terry” stop on Banks by ordering him to come out of the house and submit to their questions. Therefore, the officers were required to have reasonable suspicion for the stop. Because the stop was based entirely on an anonymous tip, the officers did not have reasonable suspicion, and the contraband that they found was the fruit of the poisonous tree and should be suppressed.

Specificity in Motions to Suppress

On appeal, the Superior Court reversed. The Superior Court found that Banks’ lawyers had failed to comply with Rule 581(D) of the Pennsylvania Rules of Criminal Procedure. Under the rules, the defense must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” In their written motion and subsequent oral grounds, the lawyers mentioned only the suspicion-less search of the residence. They never made any allegation that the interrogation on the porch was conducted without the requisite level of reasonable suspicion. Therefore, the Superior Court held that the Commonwealth was not properly on notice of the grounds for the motion and did not have a fair opportunity to respond. The Court reversed the granting of the motion and remanded the case for trial. It is unclear whether Banks will be able to amend the grounds and re-litigate the motion in the trial court. However, his lawyers will almost certainly try.

Banks is highly illustrative of the fact that the Superior Court is not currently very sympathetic to criminal defendants. The case also shows the importance of litigating in the trial court with a careful focus on the Rules of Criminal Procedure and an eye on making sure that the defendant’s rights are protected in the event of an appeal by either side. If an appellate court can avoid a difficult issue such as whether a gun was properly suppressed by finding waiver on the part of the defense, an appellate court will often do so. Judges do not want to suppress guns, and they will look for ways to avoid doing so. Therefore, it is important to make sure that all possible grounds for a motion to suppress are covered both in the written motion and orally prior to trial. It is also critically important to take all possible steps to protect the record for appeal, which means making appropriate objections and motions so that they are not waived in the event the defendant is convicted at trial.

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Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully represented thousands of clients in both trial and post-trial proceedings. We have won motions to suppress guns, drugs, and other contraband. We will do everything we can to fight for you and obtain the best possible result at trial or on appeal. Call 267-225-2545 for a free criminal defense strategy session today.

New Limits on PA Civil Asset Forfeiture

In a unanimous 73-page opinion, the Pennsylvania Supreme Court has provided significantly increased protections for property-owners in civil forfeiture cases where the matter arises out of some sort of criminal wrongdoing for which there may not have been a prosecution. The Court’s opinion will particularly benefit property owners who face a civil forfeiture action due to wrongdoing committed by someone who uses or has access to the property but does not actually own it. In Commonwealth v. The Real Property and Improvements Known as 416 S. 62nd Street, Philadelphia, PA 19143 (Elizabeth Young), the Court found that the Excessive Fines Clause of the Eighth Amendment to the United States Constitution provides significant constitutional limitations on the government’s ability to seize property from someone who has not been convicted of a crime.

What is CIVIL ASSET Forfeiture? 

There have traditionally been two types of forfeiture which could relate to criminal wrongdoing. In general, criminal forfeiture is less problematic and controversial. Criminal forfeiture is the idea that someone who has been convicted of a crime may be ordered by the sentencing court to forfeit property related to the crime or profits generated through criminal activity. The criminal forfeiture is part of the defendant’s sentence, and it requires that the defendant have been convicted beyond a reasonable doubt. For example, if you are convicted of money laundering, you could be ordered by the sentencing court to forfeit the money.

Civil Forfeiture

The other type of property forfeiture, civil forfeiture, is much more problematic and controversial because it does not a criminal conviction or even a prosecution. Civil forfeiture involves the government filing a lawsuit against the property itself instead of a criminal defendant. Historically, if the government could show some sort of nexus between the property and some sort of criminal activity, then the government could seize the property even if the defendant had not committed the crime or even been involved in it. Thus, civil forfeiture at its worst allows the government to take your house if someone else in your house commits a crime while in the house even though you, as the property owner, had nothing to do with the crime. Civil forfeiture is also problematic because it disrupts law-enforcement incentives by providing cash-strapped cities and states with a financial incentive to focus on drug crime, where the police are likely to be able to seize cash, weapons, cars, and jewelry, instead of more serious crimes like rape and murders where law enforcement are not going to make any money through civil forfeiture. In an era of tight governmental budgets, civil forfeiture can be a real way for police and prosecutors to stave off cuts to their own departments. Thus, police and prosecutors could become more interested in arresting people for selling marijuana than solving violent crimes.     

Commonwealth v. Elizabeth Young

Commonwealth v. Elizabeth Young provides one of the clearest examples of civil forfeiture abuse and the need for increased protections. In Young, the Philadelphia District Attorney’s office attempted to use civil forfeiture to take the house of a 71-year-old grandmother who owned and resided in a property in West Philadelphia. She had owned the house since the 1970s, and in 2006, her health began to deteriorate. Her adult son and two grandchildren moved into the house, and her adult son began selling relatively small amounts of marijuana. On a number of occasions, her son sold marijuana to police officers or confidential informants. He also used her Chevrolet Minivan to meet with buyers during some of these drug transactions. On at least one occasion, police warned Ms. Young that her son was selling marijuana, but the marijuana sales apparently continued.

Eventually, Ms. Young’s son was convicted of Possession with the Intent to Deliver marijuana and sentenced to a short county jail sentence. Ms. Young was never charged with a crime, but the District Attorney’s Office filed a petition for forfeiture of her house and vehicle under the Controlled Substances Forfeiture Act. Although the Commonwealth never charged her with a crime, prosecutors sought to put a 71-year-old grandmother out on the street due to the fact that she was unable to prevent her adult son from selling small amounts of marijuana.

The trial court, finding that Ms. Young had not done enough to stop her son from selling marijuana, ordered the house and car forfeited to the Commonwealth. The trial court found a nexus between the marijuana sales and the home and vehicle in that both the house and the car were used to store and sell marijuana. Under Pennsylvania law, there is an “innocent owner” defense to civil forfeiture in that a defendant may retain the property if the defendant can show that he or she did not know about the illegal activity or did not consent to it. However, the court found that the innocent owner exception did not apply because police had warned Young of the sales and she had not done anything to stop her adult son from selling marijuana after that date. In other words, she was unable to convince her son to stop, and she was also not willing or able to throw him out of the house. The trial court further found that that the forfeiture did not constitute an excessive fine because the maximum financial penalty for the drug crimes would have been $80,000, and that amount exceeded the value of the home and automobile.

Increased Protections in Civil Forfeiture Cases

On appeal, the Commonwealth Court reversed the trial court’s ruling, and last week, the Pennsylvania Supreme Court upheld the decision of the Commonwealth Court. The Court traced the history of both civil and criminal forfeiture and the Excessive Fines Clause of the Eighth Amendment and ultimately concluded that the trial court erred in ordering that the property be forfeited. The Court found that a trial court must consider two issues in a challenge to a civil forfeiture under the Excessive Fines Clause.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

— The Eighth Amendment to the United States Constitution

First, the trial court must determine whether the property sought to be forfeited is an instrumentality of the underlying criminal offense. If the property is not an instrumentality, then the forfeiture is unconstitutional and the property may not be forfeited. If the trial court finds that the property is in fact an instrumentality, then the court must still determine whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense.

In making the decision on the threshold instrumentality issue, the court should consider at least the following factors: 

(1) whether the property was uniquely important to the success of the illegal activity;

(2) whether the use of the property was deliberate and planned or was merely incidental and fortuitous to the illegal enterprise;

(3) whether the illegal use of the property was an isolated event or repeated;

(4) whether the purpose of acquiring, maintaining or using the property was to carry out the offense;

(5) whether the illegal use of the property was extensive spatially and/or temporally; and

(6) whether the property is divisible with respect to the subject of forfeiture, allowing forfeiture of only that discrete property which has a significant relationship to the underlying offense.

If the property is an instrumentality of the crime, the court must weigh the value of the property against the gravity of the offense. In evaluating value, the court must consider the following factors: 

(1) the fair market value of the property;

(2) the subjective value of the property taking into account whether the property is a family residence or if the property is essential to the owner’s livelihood;

(3) the harm forfeiture would bring to the owner or innocent third parties; and

(4) whether the forfeiture would deprive the property owner of his or her livelihood.

Once the court has determined the value of the property, the court must then weigh the value of the property under the above four factors against the gravity of the offense, considering factors such as:

(1) the nature of the underlying offense;

(2) the relation of the violation of the offense to any other illegal activity and whether the offender fit into the class of persons for whom the offense was designed should be considered;

(3) the maximum authorized penalty as compared to the actual penalty imposed upon the criminal offender;

(4) the regularity of the criminal conduct — whether the illegal acts were isolated or frequent, constituting a pattern of misbehavior;

(5) the actual harm resulting from the crime charged, beyond a generalized harm to society; and

(6) the culpability of the property owner.

Clearly, the court must now consider a large number of factors when making a civil forfeiture decision, and the majority of the factors are going to weigh against taking a 71-year-old grandmother’s home due to a limited number of marijuana sales by a non-owner of the property. Thus, the Pennsylvania Supreme Court remanded the case to the trial court to reconsider its findings in light of the new guidance provided by the decision. Additionally, the Supreme Court rejected the trial court’s relatively cursory analysis of the issue under the innocent owner defense. The Court noted that the innocent owner defense can be shown through two ways: either a lack of knowledge or lack of consent. Thus, simply having knowledge of illegal activity may not be enough. If the defendant ordered her son to stop selling drugs and believed he had done so, then that may have been enough to show a lack of consent even if she did originally have knowledge.

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The Court’s ruling greatly strengthens the protections for people who are facing civil forfeiture actions but have not been found guilty of any criminal wrongdoing themselves. It also should not really limit the Commonwealth’s ability to take property which his truly being used for criminal activity. In the case of a house which has really become a drug house, or property which has been used to commit a crime, then prosecutors should still be able to show that the factors weigh in favor of forfeiture. But in cases like Young, the Commonwealth will have a much more difficult time putting grandmothers out on the street because they have difficulty stopping adult children from selling marijuana.

As always, if you are facing criminal charges, under investigation, or dealing with a forfeiture action, you should speak with one of our Philadelphia criminal defense lawyers today. We can help with state and federal charges in Pennsylvania and New Jersey. Call 267-225-2545 for a free criminal defense strategy session with an award-winning defense attorney.

PA Supreme Court Limits Application of Designer Drug Statute

What Is A Designer Drug?

Designer drugs present a difficult issue for the criminal justice system and law enforcement. In general, the idea of a designer drug is not that difficult to understand. A designer drug is some type of substance that is designed to mimic the effects of an already-regulated controlled substance but altered in an attempt to avoid regulation and criminal liability. Setting aside the pros and cons of the war on drugs, it makes sense that if the government is going to criminalize marijuana, then the government would also attempt to criminalize synthetic substances like K2 that provide the same effect of marijuana despite having a different chemical structure.

Problems with Criminalizing Designer Drugs

In practice, the issue becomes much trickier. It is very difficult for the government to craft a legal definition in a statute prohibiting designer drugs which gives fair notice to the average person as to exactly what substances are illegal or regulated. There will always be questions: For example, how similar does the substance have to be? Does the similarity apply only to the effect of the substance, or does the similarity apply to the chemical structure? If it applies to the chemical structure, how can an ordinary person be expected to know the exact chemical structure of a drug, and how do we compare substances?  And if it applies to the effect of the drug, then how do you measure effect given that drugs have different effects on different people. Accordingly, designer drug prosecutions often involve challenges to the statute itself as well as conflicting expert testimony from the prosecution and defense as to whether the substance involved qualifies as a designer drug. 

The Pennsylvania Supreme Court has just dismissed a void-for-vagueness challenge to the Pennsylvania statute which criminalizes the possession and distribution of “designer” drugs. Despite upholding the constitutionality of the statute, however, the Court has dramatically limited its application by reading in an extremely heightened mens rea requirement for designer drug prosecutions. In Commonwealth v. Herman, the Court held that although a previous version of the statute which criminalized “analogues” of controlled substances was unconstitutionally vague, the current definition of a “designer drug” is not so vague as to render the statute unlawful. Nonetheless, the statute requires that the defendant actually know that the substance involved was a designer drug and not just that the defendant possessed the substance itself.  

The Pennsylvania Designer Drug Statute

The designer drug statute prohibits the “knowing or intentional . . . possession with intent to distribute, or possession, of a designer drug.” It defines a designer drug “as a substance other than a controlled substance that is intended for human consumption and that . . . has a chemical structure substantially similar to that of a controlled substance in Schedules I, II, or III . . . or that produces an effect substantially similar to that of a controlled substance in Schedule I, II, or III.”

In Herman, the defendant owned and operated a smoke shop in York County, PA. Undercover police officers entered the store and purchased alleged designer drugs labeled “Winter Haze” and “V-8 Air Freshener.” Upon testing the substances, the prosecution determined that they contained the chemical PB-22, which prosecutors alleged was either a controlled substance or a designer drug which was substantially similar to a controlled substance and synthetic cannabinoid (synthetic marijuana) called JWH-018. Accordingly, the Commonwealth charged the defendant with three counts of delivery of a controlled substance, one count of possession with the intent to deliver a controlled substance, and one count of possession or possession with intent to distribute a designer drug.

Void-For-Vagueness

After the defendant was held for court at the preliminary hearing, the defendant filed a Petition for Writ of Habeas Corpus asking the trial judge in the Court of Common Pleas to dismiss the drug charges. The defense argued that the statute was so vague that it made it impossible for an ordinary person to know exactly what the law prohibits. Although much of the case dealt with various definitions under a previous version of the statute, the prosecution also involved the current definition of a designer drug. With respect to the designer drug charge, the defense argued that the Commonwealth failed to offer any evidence that PB-22 had a chemical structure similar to that of JWH-018 and that the Commonwealth’s evidence showed only that the physiological and toxicological properties of PB-22 were unknown. Therefore, the Commonwealth could not show that the compounds were substantially similar in either chemical form or effect.   

The Pennsylvania Supreme Court rejected the defendant’s void-for-vagueness challenge with respect to the designer drug charge. Under the void-for-vagueness doctrine, the government may not impose sanctions under a criminal law that fails to give fair notice of the proscribed conduct. The doctrine safeguards against arbitrary or discriminatory enforcement by the government, and it prevents jury verdicts unfettered by any legally fixed standards as to what is prohibited by the statute. The Court noted that the inquiry into whether a statute is void-for-vagueness focuses on whether the law forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.

Although the trial court found the statute to be unconstitutionally vague, the Supreme Court reversed the lower court's ruling. The Court found that the “substantially similar” language used in the statute was not unusual or unduly vague and noted that such language has been upheld repeatedly both by federal courts and appellate courts in other states. Although the prosecution and defense experts differed as to the ultimate issue of whether the substances were in fact substantially similar, the issue of which expert was right was an issue for the jury. It was not a basis for finding that the statute violates due process. 

Possession of a Designer Drug Must Be Knowing and Intentional

Despite deciding to uphold the statute, the Court did have significant concerns about the difficulty in determining whether a substance actually qualifies as a designer drug. Accordingly, the Court emphasized the mens rea element of the crime. The act requires that a defendant possess the drug knowingly or intentionally. Therefore, the Court suggested that the defendant must know not only that he possesses the substance, but also that the substance is in fact a designer drug. Thus, the Court suggested that in order to obtain a conviction, the Commonwealth must show that the defendant knew the chemical he possessed had a molecular structure or effect substantially similar to that of a scheduled controlled substance. This mens rea requirement would prevent the statute from becoming a "trap for unwitting members of the public who have no expertise in organic chemistry."

Instead, the Court found that the statute is quite reasonably aimed at those who traffic in novel compounds which are essentially the same as scheduled controlled substances but contain minor differences designed to evade the statutory schedules. Thus, the Court concluded that the General Assembly can “reasonably expect and require persons engaged in that activity to possess or obtain the specialized knowledge needed to conform their conduct to law.”

Although the Court upheld the constitutionality of the statute, the narrowing of the mens rea requirement would seemingly make it very difficult for the prosecution to obtain a conviction in most cases. Now, the Commonwealth must show more than the mere possession of a substance that qualifies as a designer drug by a defendant. Instead, the Commonwealth must show that the defendant actually knew that the substance would qualify as a designer drug. This will make it possible to prosecute the manufacturers and regular distributors of such substances, but the average person or small store-owner who possesses a designer drug may be able to avoid liability unless the Commonwealth can show an actual admission or incriminating statement on their part. Thus, the statute remains in effect, but its application has been substantially narrowed by the Court. 

We Can Help With Designer Drug Charges

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If you are facing designer drug charges or any other criminal charges in Pennsylvania or New Jersey, we can help. Our award-winning defense attorneys have successfully defended thousands of criminal cases. Designer drug cases are more complicated than regular possession cases and may require the use and cross-examination of expert witnesses. We have the experience and skill to fight for you and help you get the best possible result. Call 267-225-2545 to speak with a Philadelphia criminal defense lawyer today.