PA Superior Court Affirms Denial of Motion to Suppress Identification

Criminal Defense Attorney Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Milburn, finding that the trial court properly denied the defendant’s Motion to Suppress identification. In Milburn, the court ultimately concluded that the police had reasonable suspicion to stop the defendant, thereby defeating his Fourth Amendment suppression claim. They also found that police did not conduct an improperly suggestive “show up” procedure, and so the trial court properly rejected his due process claim.  

The Facts of Commonwealth v. Milburn

On May 4, 2015, the complainant was robbed at gunpoint on North Broad Street in Philadelphia. The robber took the complainant’s iPhone and a backpack containing clothing and medication. This incident took place under a streetlight that was approximately five feet away from the complainant, and he alleged that he was able to see the assailant clearly. After the incident, the assailant instructed the complainant to walk away, which he did. However, he did see the assailant leave the scene in a vehicle with another individual.

The complainant immediately called 9-1-1 and gave the dispatcher a description of his assailant as African American, with a muscular build, medium complexion, and facial hair, and the complainant noted that the robber was wearing black jeans or sweat pants and a gray hoodie sweatshirt. Police arrived on scene and spoke with the complainant. The officers then began to survey the neighborhood while accompanied by the complainant. They utilized the complainant’s “Find My iPhone” application and attempted to locate his phone. However, they were not immediately successful.

A short time later, the officers tried using the “Find My iPhone” application again. This time, they received a notification that the complainant’s phone was in the area of 5th and Erie Avenue in Philadelphia. The officers proceeded to that area and found an A-Plus Mini market. The officers saw a van driving northbound through the gas station parking lot, but there were not any individuals on foot in that area. The van proceeded to exit the lot, but the officers felt that it was driving erratically. The officers then activated their lights. When the van stopped, the officers exited their vehicles and approached with their guns drawn.

As the officers approached the vehicle, they ordered the driver and front seat passenger, the defendant, to place their hands on the steering wheel and dashboard. The driver complied, but the defendant did not. One of the officers claimed that he saw the defendant place a small semiautomatic handgun under his seat. The officers retrieved the gun and placed the defendant in handcuffs. Inside the vehicle, the officer saw a backpack, medication, clothing, and three additional occupants.

As the officers walked the defendant towards the back of the van, the complainant began jumping in his seat in the police car, pointing at the defendant, and nodding his head to indicate that he recognized the defendant as the perpetrator. Police arrested the defendant, conducted a search incident to arrest, and found the complainant’s phone in the defendant’s pocket. The defendant claimed that he had just purchased the phone for ten dollars. The complainant also identified one of the backseat passengers as the second robber. The police obtained a search warrant for the van, and in the van, they found the complainant’s work uniform and name tag. Prosecutors charged the defendant with Robbery, various gun charges, Possession of an Instrument of Crime (“PIC”), Conspiracy, and related charges.

The Motion to Suppress  

The defendant filed a motion to suppress the physical evidence as well as the complainant’s post-incident identification. The trial court denied both the motion to suppress the physical evidence and the complainant’s identification. The defendant elected to proceed by way of jury trial,  and the jury found him guilty of Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in Public in Philadelphia, and PIC. The court sentenced him to 7 ½ to 20 years’ incarceration. He appealed to the Superior Court.  

What is a Motion to Suppress an Identification?

Although not as common as motions to suppress physical evidence or statements, a motion to suppress a post-incident identification may be an important tactic in the defense of a criminal case, particularly cases involving Robbery and Burglary charges. However, over the years, Pennsylvania appellate courts have made these motions difficult to win. In general, there are two types of motion to suppress identification. First, the defense may move to exclude a post-incident identification if the circumstances of the identification are such that the identification is so unreliable that the witness should not be allowed to testify to it. These types of motions typically involve unduly suggestive police procedures and complainants who did not have a great opportunity to observe the perpetrator of the crime. Second, the defense may also move to exclude an identification where the police illegally stopped or arrested the defendant and the identification procedure only took place because the defendant was unlawfully in custody. In this situation, the identification would violate the defendant’s Fourth Amendment rights as it would be the fruit of the poisonous tree of the unlawful stop. The court would then exclude the out-of-court identification and conduct a separate analysis of whether there is an independent basis for the witness to make an in-court identification of the defendant.  

Generally, an unlawfully obtained pretrial identification will only be excluded from trial if it was obtained by a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification or if it was tainted by illegal police conduct as to deny the accused due process of law. If a defendant challenges the identification by filing a motion to suppress, the Commonwealth must prove that the identification procedure did not violate the accused’s right to due process or the right to counsel.

In determining whether to admit contested identification evidence when the issue is not whether the Fourth Amendment was violated, the trial court must consider: 1) the opportunity of the witness to view the perpetrator at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the perpetrator at the confrontation; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and confrontation. Suggestiveness in the identification process is a factor to be considered, but it is not dispositive. In other words, courts often will not prohibit a post-incident identification merely because it was suggestive. As noted in Milburn, the most important factor in addressing the reliability of an identification is the witness’s opportunity to observe the perpetrator at the time of the crime.

To give an extreme example of an impermissible post-incident identification, let’s assume that a defendant is accused of punching a complainant in the back of the head and stealing her purse. This is a robbery. The incident happens in a matter of seconds and the complainant was only able to see the back of her assailant and determine that he was Caucasian, wearing a white shirt and blue jeans. The police then, two hours later, bring two people, but only one is in handcuffs. One is a Caucasian wearing a white shirt and blue jeans, while the other is also a Caucasian man, and is wearing a white shirt, but instead of blue jeans is wearing gym shorts. The one wearing blue jeans is in handcuffs. Neither of these individuals have the complainant’s purse on them. The officer then proceeds to tell the complainant that one of these two is the perpetrator. Consequently, the complainant proceeds to pick the one wearing blue jeans and in handcuffs.  

In this hypothetical, the defendant would have a very good chance of suppressing the post-incident identification. Why? First, the defendant has a strong argument that there was no probable cause or reasonable suspicion to stop him. A Caucasian man wearing a white t-shirt and blue jeans is not very descriptive and arguably lots of people who would match that description. As such, the defendant in this hypothetical would have a good chance of suppressing the identification on these grounds alone.

However, this is not his only ground to exclude the identification. The defendant could also argue that it should be suppressed because it was suggestive and the complainant had a limited opportunity to observe the assailant. The whole incident only lasted a matter of seconds. Additionally, the hypothetical complainant was not able to see her assailant’s face and was able to give, at best, a very vague description. Finally, the tactics used by the police were highly suggestive. The officer only brought two people to the identification, and only one fit the general description of the assailant. Further, only one of them was in handcuffs. Additionally, the officer told the complainant that one of these people was the one who robbed her and thus suggested that it was the one wearing handcuffs. Thus, this defendant would have strong grounds for suppressing the identification both on Fourth Amendment and Due Process grounds.

Most cases, however, are not this egregious. And over the years the Pennsylvania Superior Court has rarely ruled in favor of the defense. The Superior Court has given great deference to the witness’s supposed opportunity to observe, while ignoring very relevant facts that can skew and taint that person’s memory. For example, if a suspect is in handcuffs during the identification, that does not make it per se impermissibly suggestive even though a reasonable person may believe that because the suspect is in handcuffs, that must be the person who committed the crime.

The Court’s Analysis in Milburn

In Milburn, the Superior Court held that the post-incident identification was not unduly suggestive. The court focused on the complainant’s ability to observe the defendant during the incident. Specifically, the court found that the complainant had ample opportunity to view the defendant’s face during the commission of the crime. The court also focused on the close proximity between the defendant and the complainant, the time between the incident and when Appellant was arrested (three minutes), and how the complainant reacted when he first saw Appellant. The court gave little significance to the fact that Appellant was the only person handcuffed during the identification. Thus, the court found that the identification was not unduly suggestive. Likewise, the Court found that the police had reasonable suspicion to stop the van. The police received information from Find my iPhone, which they had successfully used before on numerous occasions, traveled to the area, which was a high crime area, and saw the van driving erratically as if the driver was not focused on the road. Given the close proximity to the scene of the crime, this gave the police reasonable suspicion to stop the van, and once they stopped the van, they had probable cause to arrest the defendant because they saw the gun in plain view. Therefore, the court also denied the motion to suppress on Fourth Amendment grounds, as well.    

Milburn is an illustration of the type of case in which the defendant is unlikely to win a motion to suppress identification. However, it is likely that the law in this area may shift back at least somewhat in the favor of the defense given the rise in police body cameras. Prior to the advent of body worn cameras, the trial court could simply take a witness’s word for it that the witness had a great view of the perpetrator and was certain that he or she had picked out the right person. As the witness tells the story and testifies numerous times ranging from the statements to police to the preliminary hearing to the motions hearing, the witness becomes more and more certain that he or she has in fact picked out the right person. The body cameras, however, often show that at the time of the incident, the witness was not so sure. For example, the witness may not have been able to give a detailed or accurate description to police. Or the camera could show that the police were not particularly neutral in asking the witness to make an identification. In these cases, appellate courts may begin to show less deference to a witness’s claim of certainty when the witness is on video stating something different. Therefore, this is an area of law that is extremely likely to be affected as police increasingly wear body cameras.

Facing criminal charges? We can help.

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense attorneys have successfully defended thousands of clients. We have litigated all types of pre-trial motions to suppress and litigated cases involving charges such as Robbery, Burglary, Aggravated Assault and Attempted murder to verdict before judges and juries throughout Pennsylvania and New Jersey. We offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.

SCOTUS: Defendant May Waive Double Jeopardy by Moving to Sever Felon in Possession of Firearm Charge

Philadelphia Criminal Defense Lawyer Zak Goldstein

The United States Supreme Court has decided the case of Currier v. Virginia, holding that a defendant may waive double jeopardy protections by consenting to the severance of criminal charges and moving for separate trials on different charges. Specifically, the defendant may waive his or her double jeopardy rights by moving to sever a felon in possession of a firearm charge from the other charges in a criminal case. 

The Facts of Currier v. Virginia

In Currier, prosecutors charged the defendant with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon in Virginia. Coincidentally, the defendant was not eligible to possess a gun because he had prior convictions for burglary and grand larceny. Because the defendant was charged with unlawful possession of a firearm by a convicted felon, prosecutors would have been allowed to introduce his prior convictions for burglary and grand larceny in his trial as the existence of those prior convictions is an element of the statute. This would have been detrimental to his case because the jury would have heard both that he had prior convictions in general and that he had prior convictions for the exact same thing with which he was charged. 

Accordingly, the defendant and the Government agreed to sever the charges and hold two separate trials. As discussed in the Court’s opinion, there is no universal way to handle this issue and each jurisdiction is different. In Virginia, a defendant can have two trials: one for the unlawful possession of a firearm by a convicted felon and a second trial for the other charges. In this case, Petitioner elected to have two trials. This is not the normal procedure in Philadelphia. In Philadelphia, the prosecutors will ordinarily proceed against the defendant on the non-felon in possession charges first. If the prosecution obtains a conviction on all of the charges other than the felon in possession charge, then the defense will typically allow the trial judge to make the decision on the remaining gun charge. If the jury acquits on all of the other charges, then the prosecution will usually move to nolle prosse the remaining gun charge. In some cases, the prosecution does still insist that the jury hear the felon in possession case after it has ruled on the other charges. However, Philadelphia does not typically conduct two separate trials in these types of cases. 

The first trial, for the charges of grand larceny and burglary, went very well for the defendant. He was acquitted of both charges. When he appeared for his second trial, his defense attorneys moved to dismiss the gun charge. They argued that it would violate his constitutional right against Double Jeopardy. In the alternative, he asked that the prosecution not be allowed to introduce any evidence pertaining to the grand larceny and burglary charges because he was acquitted of those charges. The trial court denied the defense's request, and the jury found him guilty of the gun charge. The court sentenced him to a lengthy period of incarceration. He appealed through the Virginia state appellate system, and both the Virginia Court of Appeals and the Virginia Supreme Court affirmed the denial of his double jeopardy motion. He appealed to the United States Supreme Court, and the Supreme Court granted certiorari and agreed to hear the case. 

What is Double Jeopardy? 

The Fifth Amendment of the United States Constitution prohibits a defendant from being tried twice for the same crime after he or she has been acquitted or convicted of the crime. These situations can become more complicated than one would expect, but a simple example of double jeopardy is this: Imagine a defendant is charged with robbing a bank. The defendant goes to trial, and the jury acquits him of robbing the bank. The same jurisdiction cannot then re-try him again for robbing the bank, even if prosecutors later uncover more evidence that would have likely led to a different verdict. 

It is important to note that under the federal constitution and subsequent case law, this protection only applies to the particular jurisdiction that tried the defendant. In other words, just because a defendant is acquitted of a crime at the federal level does not mean that the state government cannot prosecute for the crime too. However, the rules governing this depend on the jurisdiction. Pennsylvania offers much broader Double Jeopardy protections in comparison to other states. Thus, if a defendant is acquitted in federal court, Pennsylvania prosecutors cannot then bring charges. The reverse, however, is not true - if a defendant is acquitted in Pennsylvania court, the federal government can still bring charges. Click here to learn more about double jeopardy in general. 

The Double Jeopardy Clause also has a collateral estoppel component to it. What this means is that the government cannot re-litigate a fact that was decided in a defendant’s favor. To give a basic example of this, let’s assume that a defendant punched a person in the face and took their phone. This is technically a robbery, but it is also a simple assault. Let’s also assume that at trial, the government chooses only to proceed on the robbery charge and the defendant is found not guilty. The doctrine of collateral estoppel prevents the government from re-arresting the defendant for simple assault because he was already found not guilty of an essential fact of the case (i.e. punching the complainant) in the robbery trial. 

This idea of collateral estoppel, as discussed in Currier, is not a universally accepted idea by legal jurists and remains controversial. However, as the justices noted in their opinion, collateral estoppel was not the issue in this case, though it is a little confusing (as discussed below). The issue in Currier, according to the justices, was whether a defendant can waive his Double Jeopardy protections by seeking a severance of the charges filed against him. 

The Court Holds that a Defendant Can Waive His Double Jeopardy Protections When He Agrees to Severance of the Charges

In Currier, the Supreme Court held that a defendant may waive his Double Jeopardy protections when he elects to have two trials. In making its decision, the Court looked at its prior decisions that addressed the issue. In its research, the Court concluded that when a defendant elects to have two trials, he is no longer entitled to Double Jeopardy protections. The Court stated that the Double Jeopardy Clause was designed to protect against government oppression, not from the consequences of a defendant’s voluntary choice. 

The defendant, of course, argued that he had no real choice. If he had not elected to sever his cases, than the jury would have heard that he had prior convictions for the same offenses, and he would not have received a fair trial. However, the Supreme Court noted that though he was entitled to have separate trials under Virginia law, it was not a constitutional right to have separate trials. Thus, he was not forced to give up one constitutional right to secure another. Additionally, the Court held that because the defendant consented to the severance of the cases, the prosecution could still introduce evidence relating to the charges for which he had already been acquitted.

This decision will likely prove confusing and frustrating for criminal defendants because even though the defendant was found not guilty of the burglary and the grand larceny charges, the prosecution was allowed to introduce evidence for those crimes in his second trial. The Court made clear that its decision was based on the text of the Fifth Amendment and therefore held that the Double Jeopardy Clause only prohibits re-litigating offenses, not issues or evidence. Consequently, the Court held that the normal rules of evidence apply and thus a trial court must decide whether to allow the introduction of evidence and facts from the prior trial. 

Facing criminal charges? We can help.

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges in state or federal court, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of criminal cases in trial and appellate courts throughout Pennsylvania and New Jersey. If you are under investigation or have been arrested, we offer a 15-minute criminal defense strategy session free of charge. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

US Supreme Court: Police Must Obtain Search Warrant for Cell Phone Location Data

Philadelphia Criminal Defense Lawyer Zak Goldstein

The United States Supreme Court has decided the case of Carpenter v. United States, holding that police must obtain a search warrant based on probable cause prior to getting cell phone location data from a cell phone provider. In Carpenter, law enforcement officers had obtained cell phone location data for the defendant which linked the defendant to various gunpoint robberies without a search warrant. Therefore, the court reversed the defendant’s conviction and remanded the case for a new trial. 

The Facts of Carpenter v. United States

In 2011, police arrested four men for robbing a number of Radio Shack and T-Mobile stores in Detroit. One of the men confessed that over the previous four months, the group (along with other individuals) had robbed nine different stories in Michigan and Ohio. The suspect identified 15 other people who had participated in the robberies. He gave the FBI some of their cell phone numbers. The FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies. 

Based on this information, the FBI began to suspect Timothy Carpenter, the defendant, of participating in some of the robberies. The FBI obtained court orders under the Stored Communications Act to obtain cell phone records for Carpenter and other suspects. That statute permitted the FBI to compel the disclosure of cell phone records from the cell phone provider based on a showing of specific and articulable facts that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. These court orders are not the same as a search warrant, and the showing necessary to obtain one is much lower than the probable cause standard which law enforcement officers must meet when seeking a search warrant. 

The FBI agents obtained two orders from federal magistrate judges directing MetroPCS and Sprint to disclose cell site location data for Carpenter’s phones. The first order sought 152 days of cell-site records from MetroPCS, and MetroPCS produced 127 days worth of records. The second order directed Sprint to produce two days of records for when Carpenter’s phone was roaming in Ohio, and Sprint produced the two days worth of records. In total, the FBI obtained 12,898 location points cataloging Carpenter’s movements – an average of 101 data points per day. 

The Criminal Charges Against Carpenter 

The Government eventually charged Carpenter in federal court with six counts of robbery and six counts of carrying a firearm during a federal crime of violence in violation of 18 U.S.C. Sec. 924(c) and 1951(a). Prior to trial, Carpenter’s defense attorneys filed a motion to suppress the cell phone location data, arguing that the FBI violated the Fourth Amendment when it obtained the location data without a search warrant supported by probable cause. The trial court denied the motion to suppress, and the Court of Appeals affirmed. 

Carpenter proceeded to trial, and seven of his co-conspirators testified against him. They indicated that he was the leader of the robbery operation. In addition, an FBI agent offered expert testimony regarding the cell phone data. The agent explained that each time a cell phone taps into a wireless network, the carrier logs a time-stamped record of the cell site and the particular sector that were used. With this information, the FBI agent was able to produce maps that placed Carpenter’s phone near the scene of four of the charged robberies. According to the Government, this data showed that Carpenter was right where the robbery occurred at the exact time of the robbery. The jury found Carpenter guilty of all of the charges except one of the gun charges, and the trial court sentenced him to more than 100 years in prison. 

The Court of Appeals affirmed the trial court’s ruling on the motion to suppress. It held that Carpenter lacked a reasonable expectation of privacy in the cell phone location data because the information had been shared with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers in order to use the phone, the court concluded that the business records produced by the carriers are not subject to Fourth Amendment protection on the basis that there is no reasonable expectation of privacy in something that a person has shared with someone else. 

The Supreme Court Appeal

Carpenter’s defense lawyers appealed to the United States Supreme Court, and the Supreme Court accepted the case. In what it described as a narrow opinion, the Supreme Court reversed the conviction and ruled that the trial court should have granted the motion to suppress the cell phone location data. The court noted a number of recent opinions in which the Fourth Amendment has been applied to protect not just places, but also other types of information that people would expect to be private. For example, in Kyllo v. United States, the court held that police could not use a thermal imager to detect heat radiating from the side a defendant’s home (as part of searching for a marijuana grow operation) without a search warrant. Likewise, in Riley v. United States, the court found that law enforcement generally must obtain a search warrant prior to searching a suspect’s cell phone and that the search incident to arrest exception to the warrant requirement does not apply to a cell phone. Finally, in United States v. Jones, the Supreme Court held that police must obtain a search warrant prior to secretly planting a GPS tracker underneath a suspect’s car and monitoring the tracker for 28 days. 

At the same time, the court noted that the third-party doctrine would normally defeat Carpenter’s claim. The third-party doctrine provides that police are not required to obtain a search warrant in order to obtain information which a person has voluntarily shared with third parties. Thus, police may obtain bank records via subpoena without obtaining a search warrant because a person has voluntarily shared their financial information with the bank. Likewise, police need not obtain a search warrant in order to obtain a list of outgoing phone numbers dialed on a landline telephone because the information provided by such a pen register is limited and the numbers are used by the telephone company for a variety of legitimate business purposes. 

After analyzing these various cases, the Supreme Court ultimately concluded that the FBI should have obtained a search warrant for the cell phone data. Although the third-party doctrine has typically applied in cases such as this, where the defendant shared all of the information voluntarily with the cell phone companies, there is something different about a system that creates such a detailed and comprehensive record of the person’s movements. Accordingly, given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. The court therefore held that an individual maintains a legitimate expectation of privacy in the record of his or her physical movements as captured by the cell phone companies. 

Although the court reversed the conviction in this case, it did note that the decision is meant to be a narrow one. It does not necessarily apply to real-time cell phone location data or “tower dumps” (a download of information on all of the devices that connected to a particular cell site during a particular interval). It should also not call into question the prior opinions on bank records and pen registers or prevent the use of evidence obtained from security cameras. Finally, it does not consider other collection techniques involving foreign affairs or national security, and there may also be situations in which exigent circumstances eliminate the need for a search warrant. 

Facing criminal charges? We can help.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.

PA Superior Court: Back Seat Passenger Not Automatically in Possession of Drugs and Guns in the Front of Car

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Parrish, reversing the defendant’s conviction for Possession with the Intent to Deliver (“PWID”), Conspiracy, Possession of a Controlled Substance, Paraphernalia, and gun charges such as Violation of the Uniform Firearms Act Section 6106. In Parrish, the Superior Court found that the evidence was insufficient to convict Parrish of the gun and drug charges because Parrish was merely the back seat passenger in a car which had guns and drugs in the front of the car.  

The Facts of Commonwealth v. Parrish

Parrish involved a motor vehicle stop. Police pulled a car over in Luzerne County for having illegally tinted windows. The vehicle pulled over on command, but as police approached the car, they noticed that it was rocking back and forth as if people were moving around inside of it. They could not see what caused the rocking because of the tinted windows. When the police got up to the car, the driver of the car rolled down the window. The officers immediately smelled marijuana and saw a plastic bag containing marijuana in plain view. They also saw the driver straddling the center console between the two front seats and the grip of a silver handgun protruding from under the front passenger seat. Obviously, that is a strange place for the driver of the car to sit. They saw the defendant, Parrish, seated behind the driver’s seat with his hands on the headrest of the driver’s seat.

Because they saw drugs and a gun in plain view, the officers immediately arrested the driver and Parrish. They searched the entire car. They found a black bag on the passenger side in the front of the car. That bag contained a loaded gun, 250 packets of heroin, 12 packets of methamphetamine, a baggie of loose heroin, two scales, and other drug paraphernalia and ammunition. They found marijuana on the passenger-side door and a .40 caliber handgun protruding from underneath the front passenger-side seat. The glove compartment contained an extra magazine of bullets, and in the trunk, they found a bulletproof vest. They found $1,335 in cash on the defendant and $2,168 on the driver. Parrish cooperated with the police during his arrest. He gave his real name, and he did not attempt to run.

Gun and Drug Charges Based on Constructive Possession

Police charged Parrish with various drug and gun charges, as well as Receiving Stolen Property. Before trial, the court separated the felon in possession of a firearm charge from the remaining charges so that the jury would not be prejudiced by knowing that the defendant had a prior criminal record. The defendant then proceeded by way of jury trial, and the jury convicted him of all charges.

At trial, police testified to the above facts. They also confirmed that Parrish was not the registered owner of the car, and he did not have a key to the glove compartment or trunk. Police also believed that based on the positions of the men in the car, the defendant was probably not the driver. They did not test any of the items for fingerprints or DNA. The Commonwealth also presented an expert witness to testify that based on the totality of the circumstances, the drugs in the bag were likely for sale and possessed with the intent to deliver.

In this case, the defense presented evidence, as well. The defendant called a friend to testify that he had been at a party at the friend’s house all afternoon on the day of the arrest. Parrish stayed at the party until approximately 2 am. The friend then asked the driver of the car to drive the defendant home. When the defendant left the party, he was not carrying a satchel or any kind of bag. The friend also saw defendant lay down in the back seat when the defendant got into the car. The jury convicted the defendant of all charges, and the trial court sentenced him to 88 to 176 months of incarceration in state prison.

The Appeal of the Criminal Case

The defendant filed post-sentence motions for reconsideration of the sentence, for a new trial, and for discovery which the prosecution had apparently not provided prior to trial. The trial court denied those motions, and the defendant appealed to the Superior Court. On appeal, the defendant raised four issues:

1. whether the evidence was sufficient to sustain the convictions,

2. whether the trial court should have awarded a new trial based on the weight of the evidence,

3. whether the court abused its discretion in allowing one of the police officers to testify as an expert witness that the fact that there were two guns in the car meant that one probably belonged to the defendant, and

4. that the sentence was illegal because the court ordered a restitution payment in a case with no victim.

The Superior Court’s Decision

The Superior Court only addressed the first issue because it resolved the case in the defendant's favor. The court noted that sufficiency of the evidence claims involve viewing all of the evidence admitted at trial in the light most favorable to the verdict winner and determining whether there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Additionally, a conviction may be sustained entirely based on circumstantial evidence, but a jury is not permitted to simply guess. 

Here, the jury convicted Parrish of both gun charges and drug charges. Both types of charges required the prosecution to prove beyond a reasonable doubt that Parrish possessed the illegal items. Because the items were not physically on him, the prosecution’s case depended on a constructive possession theory. Possession can be found by proving actual possession, constructive possession, or joint constructive possession. Constructive possession exists when the defendant has the power to control the contraband and the intent to exercise that control. It may be proven by circumstantial evidence. At the same time, the defendant’s mere presence at the place where contraband is found or secreted is insufficient, standing alone, to prove that he exercised dominion or control over the items. Location and proximity to contraband alone are thus not conclusive of guilt. Instead, the Commonwealth must be able to prove at least that a defendant knew of the existence and location of the contraband.

Here, the court reversed the conviction because the defendant was sitting in the back of the car and all of the guns and drugs were in the front. Further, the evidence established that Parrish was not carrying any type of bag when he entered the car, he did not have the keys to the car, and he was not the owner or operator of it. There was no evidence that he had ever been seated in either of the car’s front seats. Neither of the recovered firearms was registered to him, and the police had failed to test any of the items for fingerprints or DNA. The Commonwealth also failed to present any evidence whatsoever that the defendant knew of the contents of the black bag in the front because the bag was opaque. The court also rejected the idea that the defendant could have moved from the front of the vehicle to the back due to his height and weight and the size of the vehicle. The court also ignored the testimony of the Commonwealth’s expert witness, which was likely improper, and it ultimately reversed the defendant’s conviction.

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta

Constructive possession is an issue that often comes up in gun cases and drug cases. In many cases involving traffic stops, the contraband in the vehicle is not actually physically on the defendant. In these types of cases, there are often defenses based on constructive possession because the prosecution may not be able to prove who in the car, if anyone, possessed the prohibited items. Even where the drugs or guns are in the actual possession of the defendant, there may be constitutional defenses to the search and seizure of the vehicle and its occupants. If you are facing criminal charges or under investigation for contraband recovered during a car stop, we can help. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding Philadelphia criminal defense lawyer today.