Philadelphia Criminal Defense Blog

Zak Goldstein 6/5/18 Zak Goldstein 6/5/18

PA Superior Court: Tracing IP Addresses at Trial Requires Authentic Evidence and Expert Witnesses

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Manivannan. In Manivannan, the Superior Court reversed the defendant’s cyber-stalking related convictions after finding that prosecutors improperly failed to prove that the defendant was the person who accessed the complainant’s e-mail account without permission. This is an important decision because it continues a trend of Pennsylvania appellate courts recognizing that electronic evidence can easily be fabricated and therefore must be properly authenticated in order to be admitted into evidence.

The Facts of Commonwealth v. Manivannan

In August 2011, the defendant worked at the United States Department of Energy. While employed there, he met and began dating the complainant. The complainant would occasionally use his computer to access her email, but she never gave him permission to access her email account. In November 2013, the complainant ended the relationship with the defendant and began seeing another man.

The defendant did not take the breakup well. By January 2014, the defendant was regularly contacting the complainant through various means of communication despite being asked to stop. On one night, the complainant and her new boyfriend were sitting in her car when the defendant pulled up behind them. The defendant proceeded to follow the two after the complainant drove away. Thereafter, the complainant confronted the defendant and told him that he needed to stop following her.

The defendant continued to engage in this type of behavior. For example, the complainant and her new boyfriend planned a weekend trip to Morgantown, West Virginia. While there, she became aware that the defendant was in the area, as well. Obviously, she became suspicious that the defendant’s presence was not coincidental. She then learned that the accommodation emails she obtained from the hotel were forwarded to her mother, even though the complainant did not send them herself.

The complainant checked the log-in records for her email account and learned that her email account had been accessed twenty-one times from thirteen different Internet Protocol (“IP”) addresses located in various states. She screenshotted the suspicious activity and gave the photos to the police. The police then used a website called Geektools.com to determine which internet service providers owned the IP addresses, and the police then subpoenaed the account information for those IP Addresses from Comcast.

Comcast provided the police with a fax on Comcast letterhead with information stating that the IP addresses used to access the complainant’s e-mail account belonged to the defendant. The defendant was then charged criminally with five counts of unlawful use of a computer and one count of harassment.

The defendant pleaded not guilty and went to trial. At trial, the judge permitted the Commonwealth to introduce the screenshots taken from the complainant’s log-in records despite the defendant’s objection that there was no basis for authenticating that those IP addresses were actually the addresses that accessed the complainant’s e-mail account. The trial court also permitted the Commonwealth to introduce the letter from Comcast. This letter did not indicate an individual author, but it was signed “Comcast Legal Response Center.” The defendant objected to the introduction of this letter because it failed to identify an individual author and it was not an original as required under Rule 1002 of the Pennsylvania Rules of Evidence. To overcome this, the Commonwealth provided a separate, faxed, boilerplate Pa.R.E. 902(11) declaration that was dated on April 18, 2016 that gave no context for the document its signor purported to certify. This document made no reference to the Comcast letter, and the Commonwealth also presented no evidence that the certification it offered had actually accompanied the Comcast letter. The Commonwealth argued that it qualified as a Business Record and thus an exception to the rule against hearsay. After argument, the trial court allowed the introduction of this letter.

The trial court further allowed the police officer and the complainant to testify that the defendant was in Los Angeles, California when someone accessed the complainant’s email account with an IP address that was located in Los Angeles. However, neither the complainant nor the officer were qualified as expert witnesses. At the conclusion of the trial, the jury convicted the defendant, and the court sentenced him to nearly five years of probation. The court also attempted to ban the defendant from the Commonwealth of Pennsylvania, although it later rescinded that unconstitutional provision. The defendant appealed his conviction based on the unreliable electronic evidence, and the Commonwealth appealed the fact that the court did not sentence the defendant to jail time.

The Superior Court Appeal

The Superior Court reversed the conviction. It found both that the Commonwealth failed to properly authenticate the IP address tracking that the police had done and that authenticating these documents required the testimony of an expert witness.

What is the Business Record Exception to the Hearsay Rule?

Typically, hearsay is not admissible in trial. Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is typically not admissible because it is not trustworthy and because the defense has no opportunity to cross-examine the person that made the statement. However, there are exceptions to the general ban on hearsay. One such exception is the Business Records Exception. This rule allows statements that would otherwise be hearsay to be admitted into evidence if certain requirements are met. The logic behind is the rule these records are inherently reliable because businesses have an interest in having accurate records. It is important to remember that the record does not have to come from the traditional definition of a business. Associations, institutions, non-profit organizations, etc. can all produce documents that qualify as a “business record” for purposes of this rule.

Prosecutors routinely use the Business Records Exception in their cases. In Pennsylvania, there is a five part test that must be satisfied for a statement to qualify as an Business Record: 1) the record was made at or near the time by-or from information transmitted by-someone with knowledge; 2) the record was kept in the course of regularly conducted activity of a “business”; 3) making the record was a regular practice of that activity; 4) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12), or with a statute permitting certification; and 5) neither the source of the information nor other circumstances indicate a lack of trustworthiness (i.e. a document that was made in anticipation of litigation would not be deemed reliable). All of these elements must be met before a document can be entered into evidence.

The Court’s Ruling

In Manivannan, one of the main issues was whether the Commonwealth properly authenticated the Comcast letter. Notably, the Commonwealth failed to present testimony from a custodian of records or other qualified witness. Instead, it attempted to authenticate the Comcast letter using the vague certification. The problem with the certification was that it was not specific. Specifically, the court stated that there was “no discernable correlation between this document and the evidence it purports to authenticate.”

This is very significant because prosecutors frequently attempt to introduce documents under the Business Record Exception without complying with all of the requirements. Here, the court held that the trial court erred when it admitted this letter into evidence. The Court further held that this was reversible error because the letter provided the only direct evidence of the defendant’s connection to the IP address that unlawfully accessed the complainant’s e-mail account.

The Commonwealth Must Present Expert Witnesses to Trace IP Addresses At Trial

The Superior Court also found that the trial court should have required the Commonwealth to present expert witnesses as to the IP address tracing. The court found that lay witnesses cannot draw conclusions from highly technical issues such as ascertaining geographic locations from IP addresses and testify to these conclusions at trial. In Manivannan’scase, the Commonwealth introduced evidence of various IP accounts, testimony about how IP addresses work, and how those addresses were traced back to the defendant without ever offering evidence that the officer or complainant were expert witnesses in the relevant field. The Superior Court rejected the introduction of this testimony without an expert witness, finding that expert testimony is required when the Commonwealth seeks to introduce this highly technical evidence. In other words, subjects such as IP addresses, how e-mail accounts are maintained, the ability to link a physical addresses to an IP address, and other computer science related issues are not common knowledge. Therefore, the trial court should have prohibited this testimony without an expert witness. Accordingly, the court reversed the defendant’s conviction for this reason, as well.

Facing Criminal Charges? We Can Help

Manivannan illustrates that a case can be won or lost based on challenges to the evidence that is allowed to be presented to the jury. If you are charged with a highly technical crime, you need a skilled defense attorney who is up-to-date on the rules of evidence and able to use them to your advantage. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to anyone who is facing criminal charges or under investigation. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.

Zak Goldstein 6/3/18 Zak Goldstein 6/3/18

PA Supreme Court: Obvious Typo in Search Warrant Affidavit Does Not Invalidate Otherwise Legitimate Search Warrant

Philadelphia Criminal Lawyer Zak Goldstein

What happens if a search warrant has a mistake in it?

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Leed. In Leed, the Court held that a statement contained in one paragraph of a search warrant affidavit, which when read in context of the entire affidavit appears to be an inadvertent error, does not render the affiant’s information stale and therefore lacking in probable cause.

The Facts of Commonwealth v. Leed

Leed involved the use of confidential informants. A detective with the Lancaster County Drug Task Force spoke with a confidential informant who claimed that the defendant was selling large quantities of cocaine and marijuana in Lancaster. The CI claimed to have recently purchased cocaine from the defendant and that the defendant lived at a certain address in Lancaster.

Some time later, a different detective met with a second CI who also claimed that the defendant was selling powder cocaine and marijuana. Both CIs identified the defendant from driver’s license photos. Later, a Drug Enforcement Administration (“DEA”) Agent spoke with a third individual, who told them that the defendant had been using a storage locker at a storage facility in Lancaster. The DEA agents confirmed that the defendant had rented that storage locker and recently visited it. One of the detectives then requested that a K9 unit conduct a sweep of the storage locker, and the dog gave a positive response to the locker.

Based on this information, the Lancaster County detectives obtained a search warrant for the storage unit. When detectives executed the search warrant, they found 15 pounds of marijuana, $9,900 in cash, plastic bags, a scale, a bank statement, income tax return, and other personal documents in the locker. They then obtained an additional search warrant for the defendant’s bank records.

Police charged the defendant with Possession with the Intent to Deliver and arrested him. While he was in custody in the county prison, the defendant made a phone call to his mother and said incriminating things in the phone call. Prison phone calls are obviously recorded. Based on the confessions in the phone call, police obtained a third search warrant for the defendant’s mother’s home, where they found more money and a cell phone.

The Motion to Suppress

The defendant moved to suppress the evidence, arguing that the information in the search warrant application was stale and therefore lacking in probable cause. Specifically, the defendant focused on a mistake in the warrant's accompanying Affidavit of Probable Cause. In the warrant, the detective mistakenly wrote that the police conducted the K9 sniff of the storage locker on March 21, 2013 instead of March 21, 2014, meaning that the sniff would have taken place more than a year before the search warrant was executed. This would arguably have made the information stale as the fact that the locker may have contained drugs in it a year earlier does not really mean that it is likely to still contain drugs a year later.

The Trial Court's Ruling

The trial court held a hearing on the motion to suppress. The Commonwealth called the detective to testify that the March 21, 2013 date was an error and he really meant March 21, 2014. The defendant objected on the basis that extrinsic testimony should not have been permitted because challenges to search warrants are usually limited to the information contained within the four corners of the affidavit. Nonetheless, the court permitted the detective to testify that he had made a drafting mistake.

The trial court denied the motion to suppress. The court agreed that it could not consider the detective’s testimony because the only thing that mattered was the actual text of the affidavit. The court, however, found that a common sense reading of the affidavit as a whole suggested that the date was a typo and that the canine sniff had taken place more recently. Therefore, the court concluded that the information was not stale and that there was probable cause to issue the warrant for the storage unit. The defendant ultimately proceeded to trial on the drug charges and was found guilty of Possession with the Intent to Deliver. The court sentenced him to 20 to 60 months’ imprisonment, and the defendant appealed.

The Criminal Appeal

The Superior Court affirmed the trial court's ruling, and the Pennsylvania Supreme Court ultimately agreed to review the case. The Pennsylvania Supreme Court agreed with the Commonwealth and upheld the trial court’s decision. It recognized that search warrants may only be issued based on probable cause. The magistrate or judge who signs off on the warrant may consider only the affidavit of probable cause provided by the detective who applies for the warrant. The Court also noted that the age of the information supporting a warrant application is a factor in determining probable cause. If the information relied upon is too old, then the information is stale, and probable cause may no longer exist. However, staleness is not determined by age alone. Instead, the magistrate (and subsequently the suppression court) must consider the totality of the circumstances in evaluating whether information is stale and probable cause exists. Finally, when a defendant in Pennsylvania challenges a search by arguing that the search warrant lacked probable cause, the only evidence that the suppression court may consider is the affidavit which was prepared in support of the search warrant application. The suppression court should provide deference to the magistrate’s decision, but if the warrant was clearly lacking in probable cause, then the results of the search should be suppressed.

The Court ultimately concluded that the typo with respect to the date of the K9 search did not invalidate the rest of the warrant. The purpose of requiring a search warrant to be based on probable cause is to ensure that police do not act arbitrarily or without sufficient information to justify intrusion into a constitutionally protected area. At the same time, where police clearly have probable cause, obtained a warrant, and simply made a typo which appears to be an obvious mistake based on the other information contained in the warrant, the police should not be punished for the typo. Otherwise, police will respond by being as vague as possible so that they cannot be punished later for typos and other drafting mistakes.

Therefore, the Court held that where the substance of an affidavit, read as a whole, evidences that there is a substantial likelihood that a specific paragraph contains an error, such that any reasonable possibility that the police will act without the requisite probable cause is eliminated, the error will not be viewed in isolation and the warrant will be deemed valid, so long as the probable cause affidavit is otherwise sufficient. Accordingly, an obvious typo will not be enough to defeat an otherwise valid search warrant. At the same time, major mistakes in a warrant or mistakes which are not obviously typos could still lead to a successful challenge to a search. Here, the court found that it was obvious that the detectives made a mistake because the warrant was otherwise in chronological order. Therefore, the court ruled against the defendant.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. We are experienced and understanding defense attorenys who will fight for you. We offer a free 15-minute criminal defense strategy session to each potential client. Call or text 267-225-2545 to speak with an attorney today.

Zak Goldstein 6/2/18 Zak Goldstein 6/2/18

PA Supreme Court Finds Autopsy Reports Testimonial under Confrontation Clause

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Brown, holding that autopsy reports are testimonial and therefore may not be introduced at trial unless the witness who prepared the report testifies. In this case, however, the court found that the improper admission of the autopsy report was harmless error, so the defendant did not receive a new trial.

The Facts of Commonwealth v. Brown

In Brown, the defendant attended a party on Stanley Street in Philadelphia. Before arriving at the party, he hid a gun in the wheel well of a nearby parked car. The defendant argued with someone during the party, and his co-defendant then retrieved the gun from the car and gave it to the defendant. The defendant shot the person with whom he was arguing four times, killing him. A doctor with the Philadelphia Medical Examiner’s Office performed an autopsy and prepared a report of the findings. The report found that the decedent had been shot four times, the shots struck the ribs, heart, lungs, and shoulder of the victim, and three of the bullets entered the front of the victim’s body while one entered his back. The report also described the trajectory of the bullets in the victim’s body and noted that there was no soot, stippling, or muzzle imprints around any of the gunshot wounds. The report noted that the cause of death was multiple gunshot wounds and the manner of death was homicide.

At the time of trial, the doctor who performed the report no longer worked for the city. The Commonwealth did not call him to testify at the trial. Instead, the Commonwealth admitted the report into evidence by calling a different doctor who had reviewed the report to testify to the other doctor’s report. The defendants objected, arguing that the admission of the report without the testimony of the doctor who prepared it violated the Confrontation Clause of the Sixth Amendment of the United States. Based on the other doctor’s report, the testifying doctor told the jury that the wounds were consistent with a scenario in which someone shot the victim from a distance of six to eight feet away while facing him, and then shot the victim in the back after the victim turned away. He further testified that the victim could have walked a few feet before collapsing.

The jury convicted the defendant of third-degree murder and related offenses, and the court sentenced him to 25 – 50 years in prison. The defendant appealed, and the Superior Court affirmed his conviction. The court first ruled that the report should not have been admitted, but it found harmless error because there was no real dispute about the cause of death.

The Criminal Appeal

The defendants again appealed to the Pennsylvania Supreme Court, and the Supreme Court agreed to review the case. On appeal, the Commonwealth argued that autopsy reports are not testimonial because they are not necessarily created for trial in the same way that a BAC report or drug test report is prepared specifically for trial. Instead, state law requires coroners to prepare autopsy reports regardless of whether there is an ongoing criminal activity. The defendant argued that although some autopsy reports are prepared regardless of whether there is a suspicion of criminal activity, the law requires the coroner to prepare a report in response to any suspicious death and cooperate with the prosecutor. Further, the report in this case was prepared for the prosecution of homicide charges.

What is the Confrontation Clause?

The Pennsylvania Supreme Court agreed with the Superior Court that the report was testimonial and therefore should not have been admitted without the testimony of the doctor who prepared it. The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means that they have the right to cross-examine witnesses under oath at trial.

The Pennsylvania Supreme Court noted that in Crawford v. Washington, the United States Supreme Court created the modern analysis of the Confrontation Clause. The Court barred the admission of testimonial statements of a witness who did not appear at trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Thus, the key question for whether a statement violates the Confrontation Clause is whether the statement is testimonial. In general, statements are testimonial when their primary purpose is to establish or prove past events for purposes of proof at a criminal trial. This means that statements made to police officers who are investigating cases are typically going to be testimonial. Likewise, lab reports prepared to prosecute a criminal defendant at trial will also generally be found to be testimonial. On the other hand, statements which are not made for the purposes of criminal prosecution – such as a phone call to 911 in order to obtain emergency assistance – will often be found non-testimonial.

The Court's Decision

Ultimately, the Court concluded that the autopsy report was testimonial. Pennsylvania law requires the preparation of autopsy reports in all cases of sudden, violent, and suspicious deaths, or deaths by other than natural causes, and in such cases, the autopsy and subsequent report are designed to determine whether the death occurred as the result of a criminal act. The law also requires the coroner to advise and cooperate with the District Attorney. Therefore, the primary purpose of an autopsy report is to establish or prove past events potentially relevant to a later criminal prosecution. Any person creating the report would reasonably believe it would be available for use at a later criminal trial. Therefore, an autopsy report is testimonial.

What is Harmless Error?

At the same time, the Supreme Court concluded that the defendant was not entitled to a new trial because the admission of the report amounted to harmless error. Even where the trial court has made a mistake in an evidentiary ruling, an appellate court may find harmless error where 1) the error did not prejudice the defendant or the prejudice was de minimis, 2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence, or 3) the property admitted and un-contradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the error was harmless error because the report was merely cumulative to the properly admitted testimony of the testifying doctor relating to the cause of death. Specifically, it was harmless error because the doctor had reached his own independent opinion regarding the cause of death which did not rely entirely on the inadmissible autopsy report. Further, an expert witness generally may rely on inadmissible evidence if it is the type of evidence that an expert in the field would normally rely on in reaching a determination. Thus, the report itself should not have been admitted, but the doctor was properly permitted to rely on it in reaching his own conclusions. Therefore, the defendant was not entitled to a new trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or may be under investigation by law enforcement, we can help. Our Philadelphia criminal defense attorneys have successfully defended thousands of clients in Pennsylvania and New Jersey. We offer a free 15-criminal defense strategy session to each potential client, and we can help you build a defense to pending criminal charges or evaluate the merits of filing a PCRA or direct appeal. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today.

Zak Goldstein 5/31/18 Zak Goldstein 5/31/18

US Supreme Court: Police Need Warrant to Search Car Parked in Driveway

The United States Supreme Court has decided the case of Collins v. Virginia, holding that police must obtain a search warrant prior to searching a car or other automobile that is parked in a person’s driveway.

The United States Supreme Court has decided the case of Collins v. Virginia, holding that police need a search warrant to search a person’s automobile when it is parked in the driveway or other “curtilage” of a person’s home. This is an important decision that limits the ability of police to search your house and the surrounding areas without a search warrant pursuant to the “Automobile Exception” to the Fourth Amendment.

The Facts of Collins v. Virginia

On an unspecified date, an Albemarle County, VA Police Officer observed the driver of an orange and black motorcycle with an extended frame committing a traffic infraction. This driver eluded the officer’s attempt to stop him. A few weeks later, a different officer within the same department encountered an individual operating a similar motorcycle traveling above the speed limit. This officer was also not able to stop this individual.

The officers subsequently compared notes and concluded that it was the same individual who got away on each date. Additionally, the officers were able to determine that the motorcycle was stolen and in the possession of the defendant. The police then searched the defendant’s Facebook account and saw pictures of the motorcycle parked in the driveway of a house. Through additional investigation, the officers were able to determine the address of the house and that the house belonged to the defendant’s girlfriend.

One of the officers then went to this house and saw what appeared to be a motorcycle under a white tarp. The officer did not have a search warrant, but he exited his car and went to the house. From there, he then went onto the driveway, lifted the tarp, and saw what appeared to be the motorcycle that had escaped police on the two previous occasions. The officer ran the license plate and VIN for the motorcycle and found that it had been reported stolen. The officer took a photograph of the motorcycle and then put the tarp back on the motorcycle. The officer then left the property and returned to his car to wait for the defendant. The defendant returned home shortly thereafter. The officer then walked up to the house and knocked on the door. The defendant answered the door and agreed to speak with the officer. The defendant promptly admitted that the motorcycle belonged to him and that he had purchased it without a title. The officer arrested him.

State prosecutors charged the defendant with receiving stolen property. The defendant filed a pre-trial motion to suppress to suppress the evidence that the officer obtained as a result of the warrantless search of the motorcycle. The defendant argued that the officer had trespassed on the curtilage of his property in violation of his Fourth Amendment rights. The trial court denied his motion to suppress. The defendant then appealed. Both the Court of Appeals of Virginia and the Virginia Supreme Court affirmed the lower court’s order denying the defendant’s motion to suppress. The Virginia Supreme Court affirmed the lower court’s decision on the Automobile Exception to the warrant requirement of the Fourth Amendment. The defendant then petitioned the United States Supreme Court to hear the case which the Court granted certiorari.

What is the Automobile Exception to the Warrant Requirement of the Fourth Amendment?

The Automobile Exception to the Fourth Amendment has existed for nearly a hundred years. In essence, the Automobile Exception is judge-made law that allows police to search an automobile without a search warrant, so long as there was probable cause to justify the search. This exception was first articulated in Carroll v. United States, a 1925 Supreme Court decision that upheld a warrantless search and seizure of an automobile.

In Carroll, the Supreme Court reasoned that law enforcement should not be required to obtain a search warrant in order to search a car because a car is mobile and could leave the scene by the time an officer obtained a warrant. In subsequent years, the Supreme Court solidified the Automobile Exception, but it also adopted additional rationales to justify these warrantless searches. Specifically, the Court has also held that because automobiles are so highly regulated, a warrant is not needed. This was the Court’s justification for approving of the police acting without a warrant in cases such as California v. Carney and South Dakota v. Opperman. For a long time, Pennsylvania did not permit the Automobile Exception. However, this changed in 2014, when a plurality of the Pennsylvania Supreme Court decided the case of Commonwealth v. Gary. Gary eliminated the requirement that police obtain a search warrant before searching an automobile in order for evidence obtained from the vehicle to be admissible in state court criminal proceedings.

The Supreme Court’s Decision

In a 7-2 decision, the Court held that the Automobile Exception does not apply when the automobile is on the curtilage of one’s property. Curtilage is the property connected to one’s home, i.e. a driveway. The United States Supreme Court has defined it as “an area adjacent to the home and to which the activity of home life extends.” Therefore, the Court stated that “[w]hen a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred…[s]uch conduct thus is presumptively unreasonable absent a warrant.”

As such, the Court found that the officer invaded the defendant’s Fourth Amendment interest in his home. The home is one of the most protected interests in Fourth Amendment law and there is nothing in Automobile Exception jurisprudence that allows the police search one’s home. The Court further expressed a concern that police, under the guise of the Automobile Exception, would search individual’s homes. The Court put it very simply “[i]t is, after all, an exception for automobiles” and held that the police needed a warrant to search the defendant’s motorcycle in his driveway.

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