Philadelphia Criminal Defense Blog

Zak Goldstein 10/15/17 Zak Goldstein 10/15/17

PA Superior Court Rejects Good Faith Exception to Exclusionary Rule in Birchfield Cases

Commonwealth v. Carper

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carper. In Carper, the Court held that prosecutors may not introduce illegally obtained blood test results in Driving Under the Influence (“DUI”) cases despite the fact that the police relied on then-settled law which permitted warrantless blood testing of DUI suspects. The Superior Court specifically rejected the application of the “good faith exception” and held that the evidence remains inadmissible despite the fact that the police officers may have acted in good faith and not realized that they were violating the law.

Carper involved a relatively straight-forward DUI case. A Pennsylvania State Police Trooper pulled Carper over in October 2014 for an expired inspection sticker. During the ensuing stop, the Trooper began to suspect Carper of driving under the influence of a controlled substance. The Trooper arrested Carper, transported him to the hospital, and informed him that if he did not consent to a blood draw, he would face increased criminal penalties. Carper agreed to the blood draw, and the blood draw showed the presence of a controlled substance.

Motion to Suppress

Carper moved to suppress the evidence under the Fourth Amendment of the United States Constitution. Notably, Carper did not move to suppress the blood results under the Pennsylvania Constitution. The trial court held a suppression hearing, and the Commonwealth introduced evidence in an attempt to show that it complied with both the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Following the hearing, the United States Supreme Court decided Birchfield v. North Dakota, and then Carper filed a post-suppression hearing brief in which he also argued that the blood results should be suppressed under the Pennsylvania Constitution. Likewise, the Commonwealth filed a brief in which it argued that the Pennsylvania Constitution did not bar the introduction of the blood results into evidence.

Birchfield v. North Dakota made it illegal for states to impose criminal penalties on DUI suspects who refuse a warrantless blood draw. Thus, the trial court granted the Motion to suppress, agreeing with the defense that the police illegally coerced the defendant into consenting to the blood draw by informing the defendant that he would face more severe criminal penalties if he refused chemical testing.

The Good Faith Exception to the Exclusionary Rule

The Commonwealth appealed. In its appeal, the Commonwealth argued for the application of the good faith exception to the Exclusionary Rule. In the federal system, prosecutors may still use unlawfully seized evidence if police acted in good faith when they obtained the evidence. For example, courts have found that officers acted in good faith where they arrested a defendant on what they believed to be a valid warrant despite the fact that the warrant had actually been lifted. Likewise, federal courts have held that police act in good faith when they rely on existing case law when conducting a search even if later case law subsequently changes the legality of the search. Thus, the Commonwealth asked the Superior Court to find that the good faith exception applies in Birchfield cases because police relied on well-established case law. The Commonwealth also argued that the defendant failed to properly preserve his state law challenge to the blood draw because defense counsel moved to suppress the evidence only under the United States Constitution prior to the hearing and never mentioned the state law claim until the defense filed its post-hearing brief.

The Superior Court rejected both of the Commonwealth’s arguments. First, the Court recognized that Pennsylvania appellate courts have repeatedly found that there is no good faith exception to the exclusionary rule in Pennsylvania. Thus, while the good faith exception may apply in federal court, it does not apply in Pennsylvania state courts. The only issue is whether officers violated the law; it does not save the Commonwealth’s case that the officers relied on the law at the time. Second, the Court rejected the Commonwealth’s argument that Carper waived the state law claims by failing to mention them in the initial motion. This would have led to the motion being denied because under the federal law claims, the good faith exception would have applied. Nonetheless, the Court rejected this argument as well, finding that the Commonwealth had not been prejudiced because the Commonwealth extensively briefed the state law issues and presented testimony relating to the issue of coercion at the suppression hearing. Further, the defense preserved the issue by filing the post-hearing brief and allowing the trial court to rule on it. Therefore, the Court rejected both of the Commonwealth’s appellate issues.

Following Carper, it is clear that the good faith exception does not apply in Birchfield DUI cases. States may not penalize DUI suspects for refusing to submit to blood testing without a search warrant. Although prosecutors continuously ask the appellate courts to adopt a good faith exception in Pennsylvania, the courts have fortunately refused to do so thus far.

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Zak Goldstein 10/11/17 Zak Goldstein 10/11/17

United States Supreme Court To Review Whether Police Need Warrant To Obtain Cell Phone Location Data

Potentially recognizing that the frame work for when police and federal agents are required to seek a search warrant to obtain digital information has become outdated, the United States Supreme Court announced that it will review whether the police are required to get a search warrant in order to obtain a suspect’s cell phone records. Local and federal law enforcement routinely seek cell phone location data from a suspect’s telephone company in order to track the suspect’s whereabouts around the time of the crime. The location data can be extremely powerful as circumstantial evidence in cases where the cell phone data puts the suspect at or near the scene of the crime at the time of its commission. For example, if police believe that the suspect committed a homicide, they could use cell phone location data to show that the suspect was near the decedent at the time of the murder.

Current Standards for Obtaining Cell Phone Location Data

Under existing state and federal law, police officers are generally not required to obtain a search warrant in order to retrieve this information from a phone company. Instead, in many jurisdictions, law enforcement officers simply submit a request to the phone company, and the phone company will provide the information without a warrant and court order. In other jurisdictions, officers may be required to obtain a court order in order to retrieve the data, but the court orders may be issued on a standard of evidence lower than the probable cause standard required in order to obtain an actual search warrant. This is the case in federal court, where prosecutors must show only that there are “reasonable grounds” for the records and that they are “relevant and material” to an investigation.

Courts have traditionally allowed police to dispense with the warrant requirement in obtaining this type of data because the data is not stored in the suspect’s phone or on the suspect’s person. Instead, the defendant necessarily shared the data with a third-party, the phone company, by using the phone. Thus, courts have held that defendants do not have a reasonable expectation of privacy in information that they have publicly shared or shared with third parties, and courts have not needed to obtain search warrants in order to obtain that type of information.

Reasonable Expectation of Privacy in Cell Phone Data

As a general rule, defendants may move to suppress the results of a search only where they had a reasonable expectation of privacy in the place searched. Obviously, you have a reasonable expectation of privacy in your home, car, and pockets, but courts have rejected the idea that a criminal defendant has a reasonable expectation of privacy in something that he or she has shared with a third party. This rule may have made sense twenty years ago before the advent of technology which literally tracks a person’s every movement. Devices like cell phones, sports watches, and GPS systems all track a person’s whereabouts at all times, making it much more difficult for the government to argue that a suspect should not have a privacy interest in the resulting data. If the government is not required to obtain a search warrant, then the government can essentially obtain all of the details of a person’s life without even having probable cause.

After recently determining that police must have a search warrant in order to search the contents of an arrestee’s search warrant, this case suggests that the High Court may be prepared to re-think the reasonable expectation of privacy doctrine given the realities of modern technology. The case on appeal is Carpenter v. United States. In Carpenter, without getting a search warrant which would have required probable cause, FBI agents obtained cell phone records for the defendant from his phone company which covered 127 days and revealed 12,898 separate points of location data. The data ultimately connected Carpenter to a string of cell phone store robberies, and Carpenter was convicted at trial. On appeal, the Sixth Circuit Court of Appeals ruled 2-1 that the Fourth Amendment does not require law enforcement to obtain a search warrant prior to seeking this type of data. Carpenter has appealed to the United States Supreme Court, and the Court will review whether the police should be required to obtain a search warrant in order to get this highly personal data. Search warrants are not particularly difficult for the government to obtain, and a decision in favor of Carpenter would limit the government’s ability to track your every movement without at least some showing of probable cause.

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Philadelphia Criminal Lawyers Demetra Mehta and Zak T. Goldstein

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients against a wide variety of criminal charges in preliminary hearings and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys.

Read the Sixth Circuit’s Opinion: https://scholar.google.com/scholar_case?case=14626167511079628834

Zak Goldstein 10/3/17 Zak Goldstein 10/3/17

PA Superior Court Upholds Homicide by Vehicle Conviction for Failure to Come to a Complete Stop at Busy Intersection

Commonwealth v. Moyer

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Moyer, upholding the defendant’s conviction and state prison sentence for Homicide By Vehicle, Recklessly Endangering Another Person (“REAP”), and Driving Under the Influence (“DUI”). On appeal, Moyer challenged the sufficiency of the evidence against her as well as the admissibility of the blood results for the DUI charge under Birchfield v. North Dakota. Unfortunately for Moyer, the Superior Court held both that the Commonwealth produced sufficient evidence to convict the defendant of homicide by vehicle and that the Birchfield claim that police should have obtained a warrant prior to the blood draw was waived for failure to raise the issue prior to or during trial.

"Rolling Stops" and Homicide by Vehicle

In Moyer, the record showed that the defendant approached a stop sign at an intersection which she had driven through on many prior occasions. The defendant failed to come to a complete stop at the intersection. She characterized the stop as a “rolling stop,” but the trial court found that she had traveled through the intersection at around twelve miles per hour and had not attempted to activate her brakes prior to the ensuing collision. As she went through the intersection, a box truck crashed into her car, crossed the double yellow line, and then crashed into a tow truck, killing the driver of the box truck. The evidence produced at trial also suggested that it would be difficult to see traffic coming from the side due to the presence of a building at the edge of the intersection.

Criminal Charges for Car Accidents

Moyer was arrested and charged with Homicide by Vehicle, REAP, Homicide by Vehicle while DUI, DUI, and various summary offenses relating to reckless driving. The jury convicted her of homicide by vehicle and REAP, but it acquitted her of Homicide by Vehicle while DUI because the levels of marijuana and Xanax in her system were extremely low and unlikely to cause actual impairment or inability to drive. The trial court found her guilty of DUI and the summary traffic offenses. Notably, there is no right to a jury trial for a first-offense DUI charge or for summary traffic offenses. Therefore, the jury decided whether to convict on the more serious judges, and the trial judge made the ruling on the DUI and summaries.

The Criminal Appeal

Moyer raised two issues on appeal. First, she challenged the use of the blood results against her because police had warned her that she would face more severe criminal penalties if she refused to consent to chemical testing in violation of Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that states many not criminalize the refusal to submit to warrantless blood testing even where police have probable cause to believe that the driver was driving under the influence. However, Birchfield, was decided after the defendant was convicted in the trial court. Although she sought a new trial by filing post-sentence motions prior to taking the appeal, the trial court denied the post-sentence motions.

The Superior Court upheld the trial court’s decision, agreeing that Birchfield is not retroactive and that the defendant should have known the case was on appeal in the United States Supreme Court and raised the issue prior to trial in order to preserve it for appeal. Pennsylvania’s appellate waiver doctrine is extremely demanding. If claims are not properly preserved by filing motions or objections at the trial level, those claims may be waived forever.

Second, Moyer argued that the evidence was insufficient to convict on Homicide by Vehicle because she had done nothing more than roll through the intersection. Homicide by Vehicle is defined in the Motor Vehicle Code. Section 3732 of the Motor Vehicle Code defines Homicide by Vehicle as:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic exception section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

Thus, in order to convict a defendant of Homicide by Vehicle, the Commonwealth must show that the defendant’s traffic violation caused a death and that the defendant acted either recklessly or with gross negligence. Pennsylvania law defines criminal recklessness as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

The statute may also be satisfied by a showing of gross negligence. Gross negligence is more than ordinary civil negligence. Instead, it requires that the defendant’s conduct “evidenced a conscious disregard of the substantial and unjustified risk that he would be involved in a traffic accident causing death.” Accordingly, appellate courts have equated gross negligence with recklessness.

The Superior Court rejected Moyer’s argument that she had not acted recklessly. Although the small amounts of marijuana and Xanax in her system had likely not caused the accident, the Court found that her failure to stop at the intersection as required by Pennsylvania’s traffic laws was reckless enough to support a conviction for Homicide by Vehicle. First, the Court found that traveling at twelve miles per hour is different than simply failing to come to a complete stop and “rolling” through an intersection. Second, the Court noted that the stop sign preceded a busy intersection and that a building obscured the view of one lane of the cross traffic. Third, the Court considered the fact that the evidence showed Moyer had failed to brake prior to the collision. Finally, the Court recognized that Moyer was familiar with the intersection and had driven through it numerous times. Therefore, she should have known the risks of driving through it without stopping. Although the decedent failed to wear a seatbelt and was driving with his passenger door open, the Court still found that it was Moyer’s reckless conduct that caused his death. Therefore, the Court upheld the convictions against Moyer.

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Defense Attorneys Demetra Mehta and Zak Goldstein

Homicide by Vehicle charges are extremely serious, and there are often defenses to these charges. In general, it is not enough for the Commonwealth merely to show that there was a car accident and someone died. Instead, the Commonwealth must show that the defendant acted with more than just negligence; that is that the defendant acted recklessly, which is more difficult to show. Here, the evidence showed that the defendant was traveling twelve miles per hour into a busy intersection without stopping, which apparently satisfied the standard. In many cases, it may be possible to challenge Homicide by Vehicle charges both by attacking the prosecution’s proof as it relates to the defendant’s mens rea and by challenging whether the defendant’s actions actually caused the death of the victim. If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of cases. Call 267-225-2545 for a free criminal defense strategy session.

Read the Case: Commonwealth v. Moyer

Zak Goldstein 9/27/17 Zak Goldstein 9/27/17

Pennsylvania Supreme Court Justices Can’t Agree On Admissibility of Hearsay At Preliminary Hearing

Is Hearsay Admissible at a Preliminary Hearing?

The Pennsylvania Supreme Court has just dismissed the appeal in Commonwealth v. Ricker, thereby failing to decide the issue of how much hearsay may be admitted at a preliminary hearing in order for the Commonwealth to establish a prima facie case. The use of hearsay by the prosecution at a preliminary hearing has long been a heavily contested issue. For years, the rule was that the prosecution could introduce some evidence via hearsay testimony in order to establish a prima facie case, but the prosecution could not have a defendant held for court and a case sent to the Court of Common Pleas for trial without at least some live testimony by a witness with personal knowledge.

The Use of Hearsay at the Preliminary Hearing and the Pennsylvania Rules of Criminal Procedure

That basic rule began to change in 2011 when the Pennsylvania Supreme Court issued new Rules of Criminal Procedure expressly allowing for the use of hearsay to prove the elements of ownership and non-permission in cases involving property crimes like Theft, Burglary, and Robbery. In order to prove Theft, the prosecution would normally have to show that the defendant took someone else’s property without permission and did not intend to give it back. This would often require two witnesses. First, the complainant who had the property stolen would have to testify that something that person owned was stolen and that the complainant did not give the person who took the property permission to take it. Second, the police officer who arrested the defendant in possession of the stolen property would testify that the officer arrested the defendant and the defendant had the stolen goods.

By permitting ownership and non-permission testimony to come in through hearsay, the rule allowed the Commonwealth to call only the professional police witness, who is more likely to appear for court because it is part of his or her job, to testify at the preliminary hearing. This allowed more cases to survive the preliminary hearing because the complaining witness would only be required for trial. Of course, many cases do not go to trial, leaving many defendants forced to decide whether or not to plead guilty without any meaningful chance to challenge the evidence against them. Before the Pennsylvania Supreme Court adopted the rule, judges would frequently dismiss cases because the owner of the property or house involved in a Burglary or Theft would fail to appear for court. The rule was an attempt to provide the defendant with a continued right to a meaningful hearing while at the same time lessening the burden on victims and witnesses to miss work and other obligations for multiple pre-trial court dates.

Shortly after enacting the 2011 rule, the Pennsylvania Supreme Court amended the rule to permit other types of testimony to come in to evidence via hearsay. The rule currently reads:

Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

The amended rule expanded the number of cases in which hearsay could be used to prove various elements of the charged offenses at the preliminary hearing. Nonetheless, important protections remained in effect because the rule did not state that hearsay could be used to prove every element or all elements of an offense, and the Pennsylvania Supreme Court had previously ruled that a case could not be held for court at the preliminary hearing based on hearsay alone.

Commonwealth v. Ricker and Commonwealth v. McClelland

That all changed in the recent cases of Commonwealth v. Ricker and Commonwealth v. McClelland. In Ricker, the Pennsylvania Superior Court held that the amended rule permits the Commonwealth to establish a prima facie case at a preliminary hearing based on hearsay alone. Ricker did not address whether the Pennsylvania and United States Confrontation Clauses, which provide criminal defendants with the right to confront (meaning cross-examine) their accusers, prohibit the Commonwealth from establishing a prima facie case at a preliminary hearing based solely on hearsay. Unfortunately, in McClelland, a panel of the Superior Court again found that the Commonwealth could establish a prima facie case based solely on hearsay because the Confrontation Clause does not apply at a preliminary hearing.

The defense appealed in both Ricker and McClelland, and the defense bar has been anxiously awaiting the Pennsylvania Supreme Court’s review of the Ricker decision. Unfortunately, the Pennsylvania Supreme Court just announced that it has decided to punt on the issue. Instead of determining exactly how much hearsay is allowed at a preliminary hearing, the Supreme Court dismissed the appeal in Ricker as “improvidently granted.” In a concurring opinion, Chief Justice Saylor explained that the Court simply could not agree on a result and felt that the Ricker case was not the appropriate vehicle for resolving all of the issues. In a dissenting opinion, Justice Wecht argued that the Court should have resolved the issue either way and that the Superior Court’s holding in Ricker should be reversed. Because the Court has refused to rule on the issue for now, the exact procedure which should be used at a preliminary hearing will continue to be the subject of litigation.

Despite the PA Supreme Court’s refusal to resolve the issues in Ricker, the Petition for Allowance of Appeal is still pending in McClelland. Therefore, it remains a possibility that the Court could still resolve these issues. The Court could provide an authoritative ruling on exactly how much hearsay is permitted at a preliminary hearing either by revisiting the issue in McClelland or by engaging in the rule-making process to make the Rules of Criminal Procedure clearer. In the absence of action by the Court, criminal defendants throughout Pennsylvania will remain subject to a wide variety of preliminary hearing procedures and subject to a severe disadvantage in terms of the defense’s ability to test the strength of the Commonwealth’s case at the preliminary hearing.

Most Judges in Philadelphia Require More Than Just Hearsay

In Philadelphia, most judges continue to require some level of non-hearsay testimony, and it is important to note that the rules and the case law do not require a judge to permit the Commonwealth to proceed based solely on hearsay. Instead, McClelland instructs judges to continue evaluating and analyzing the reliability of the Commonwealths’ evidence. Given the high volume of cases, it seems likely that this practice will continue for most cases. Further, many of the most serious cases in Philadelphia such as Attempted Murder and Robbery cases are now charged by way of a secret (and probably even more unfair) Indicting Grand Jury at which the defense is not present or able to cross-examine witnesses instead of by preliminary hearing. In the suburban counties, magistrates are more likely to allow the prosecution to proceed based solely on hearsay. In the short term, the practice in Philadelphia may not change dramatically. In the long term, it remains to be seen whether prosecutors will continue to call witnesses at preliminary hearings and whether the Pennsylvania Supreme Court will revisit this issue.

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