Philadelphia Criminal Defense Blog

Zak Goldstein 8/10/23 Zak Goldstein 8/10/23

PA Superior Court: Suppression Required if Police Don’t Knock and Announce

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Goodis, holding that the trial court should have granted the defendant’s motion to suppress because the evidence overwhelmingly showed that the police failed to “knock and announce” prior to entering the defendant’s house to execute a search warrant. The consequences to the government of a failure to knock and announce are very different in Pennsylvania and federal courts. In federal court, a knock and announce violation does not lead to suppression. But in Pennsylvania state court, a violation of the knock and announce rule requires that the trial court suppress the evidence.

The Facts of Goodis

In Goodis, the defendant had been convicted of various counts relating to the possession and distribution of child pornography in state court. Prior to trial, he moved to suppress the evidence, arguing that police failed to knock and announce before entering his house to execute a search warrant. The trial court denied the motion, finding that the police acted too quickly but were justified in relying on concerns of officer safety. The defendant appealed.

What is the knock and announce rule?

The knock and announce rule requires police to knock on the door, wait a little bit, and announce their identity, purpose, and authority before entering. Generally, this is accomplished by the police knocking, yelling something along the lines of “police, open up, search warrant,” and then giving the occupant of the building a little bit of time to respond. If the police obtain a no-knock warrant or hear something that suggests the person inside is attempting to flee, grab a weapon, or destroy evidence, then police may dispense with the knock and announce requirement. They also generally do not have to wait very long. But they do have to knock, announce, and give the occupant of the building some time to open the door before they break in.

It is notable that the appellate court may have had some doubts about the defendant’s actual guilt. Even after the trial court denied the motion to suppress, the defense was able to show at trial that police had damaged the hard drive which allegedly contained the child pornography, and he called expert witnesses who testified that the contraband could have been placed there by someone accessing his wireless network which was unsecured at the time. The police also did not find a large quantity of contraband images and videos. In many cases, they find thousands of images and videos. In this case, they only found a few.

The Superior Court’s Ruling

On appeal, the defendant challenged the trial judge’s ruling on the motion to suppress. Pennsylvania Rule of Criminal Procedure 207 and Article I, Section 8 of the Pennsylvania Constitution require that police, before entering a dwelling to execute a search warrant, announce their identity, purpose and authority and give the occupant a reasonable period of time after such announcement to let them in, unless exigent circumstances require immediate forcible entry. The purposes of this requirement, known as the “knock and announce rule,” are to prevent resistance by an occupant protecting his dwelling, to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against the unauthorized entry, and to prevent property damage resulting from forced entry. The knock and announce rule is not limited to entry that involves breaking down a door or damage to the dwelling; it applies to any entry into a dwelling without the occupant’s permission, including entry through an unlocked door. Moreover, even where police knock and clearly announce their identity as police, failure to announce their purpose before entering the premises violates Rule 207 and Article I, Section 8 of the Pennsylvania Constitution and suppression is required unless exigent circumstances for the failure to announce are shown.

The Commonwealth must prove compliance with the rule or that one of four exceptions applied. The exceptions are: 1) that the occupants fail to respond after repeated knocking and announcing; 2) that the police are virtually certain that the occupants already know their purpose; 3) that the police have reason to believe that an announcement prior to entry would imperil their safety; or 4) that the police have reason to believe that evidence is about to be destroyed.

Here, the trial court had found that the police announced their presence but did not announce their purpose or wait for a long enough time for the defendant to let them in the house. The court ruled, however, that the police acted with exigent circumstances because they believed that the defendant could have posed a threat to officer safety. On appeal, the defendant argued that this officer safety exception should not have applied.

The Superior Court reviewed the transcripts from the hearing as well as the body camera videos which were introduced by the parties. The videos showed that the police knocked, the defendant walked to the window and put up a finger, signaling that they should wait a second, and then he went out of view to get dressed. Before he got dressed, the police knocked the door down and then held him at gunpoint. The Commonwealth had argued that he could have been trying to destroy evidence or grab a weapon when he went out of view, but the Superior Court rejected this argument. The Court concluded that there was no reason to believe the defendant posed a threat to officer safety where the police were investigating a serious but non-violent crime, the defendant came to the door, signaled to the police for them to give him a second, and then the defendant appeared to be getting dressed. This is particularly true given that the police had not told him to come back or open the door immediately. Indeed, they did not announce their purpose at all. The defendant even appeared to say “hold on a second,” and one of the officers responded, “OK, all right.” As the officer agreed, the defendant had no reason not to believe it was okay for him to get dressed before opening the door. Thus, the officers did not have any objective reason to believe that there was an issue of officer safety that would eliminate the requirement of announcing their purpose.

The Superior Court therefore ordered that the evidence should be suppressed. The defendant will receive a new trial, and the Commonwealth will likely be unable to proceed.

The case shows the importance of carefully reviewing body cam footage before trial and understanding the differences between state and federal court. Without the body cam footage, the defendant would have had a very hard time convincing a panel of appellate judges that the police did not have legitimate officer safety concerns. He would have been left only with their testimony and limited ways in which to contradict it. Further, in federal court, the remedy for a knock and announce violation is not suppression. Instead, a defendant can sue the police, which does not do them much good while they are in prison serving a sentence for distribution of child pornography.

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Goldstein Mehta LLC - Criminal Defense Attorneys in Philadelphia

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

Zak Goldstein 8/8/23 Zak Goldstein 8/8/23

PA Superior Court: Police May Search Car and Defendant Without Warrant When Defendant Has Gun and Drugs in Plain View

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, affirming a Philadelphia trial court’s finding that police officers had reasonable suspicion to believe that the defendant was in possession of illegal narcotics and a firearm where the defendant was sitting inside of a car that police believed to be abandoned with drug paraphernalia in plain view, the odor of burnt marijuana emanating from the car, and the outline of what police believed to be a gun in his pocket. Although the Pennsylvania Supreme Court recently granted allocatur on the issue of whether the plain view exception to the warrant requirement applies to automobiles, The moral of the story is that it is ill-advised to keep your guns and drugs in plain view where the police can see them.

The Facts of Green

On June 1, 2019, two Philadelphia Police officers were on routine patrol in a marked police vehicle and investigating complaints of narcotic sales and illegally parked vehicles near the West Poplar Apartment Complex. One officer was familiar with the housing complex as he had worked in that district for more than ten years and made numerous narcotics and firearms arrests in that apartment complex and area. One of the officers noticed a white Chevy Malibu he believed had been parked in the complex, unmoved, for about two weeks. The officers pulled up to investigate the vehicle, believing that it may have been abandoned. The officers approached on foot, noticed the vehicle’s inspection stickers were peeling off and it had damage to the body of the vehicle. They smelled the odor of burnt marijuana emanating from the car. The vehicle had tinted windows, and as one officer went to the front to look through the windshield, he noticed the defendant in the front passenger seat fully reclined. The officer then noticed small vials and plastic baggies, which he recognized to be consistent with narcotics packaging for crack cocaine, as well as “blunt guts” scattered around the vehicle.

As the officer took a closer look at the defendant through the windshieled, he noticed the outline of a firearm in the front pocket of the defendant’s tight-fitting sweatsuit. The officer could see the entire imprint of the firearm. That officer notified his partner he believed he saw a firearm and radioed for backup.

One police officer attempted to speak with the defendant by knocking on the windshield and requesting that the defendant step out of the vehicle and provide paperwork. The defendant opened his eyes slightly and then closed them again as if he were checking if the officers were still there and then pretending to be asleep. The police were unable to get him to respond.

The officers attempted to make contact for fifteen minutes. They were on the verge of calling for a SWAT team, but their supervisor directed them to break the windows and pull the defendant out of the car. They did so, and they recovered a 9mm pistol from the defendant and placed him under arrest.

The Criminal Charges

The defendant was charged with carrying a firearm without a license and carrying a firearm on the public streets of Philadelphia without a license (VUFA § 6106 and § 6108). Both these offenses are violations of the Uniform Firearms Act. The defendant filed a motion to suppress the firearm, and the trial court denied the motion to suppress. The judge found him guilty following a bench trial, and he appealed.

The Superior Court’s Ruling

On appeal, the defendant argued that the trial court should have granted the motion to suppress. First, the Court explained the typical rules that may apply to this type of police encounter. Pennsylvania Courts have developed three categories of interactions between citizens and police officers to better determine if an individual’s rights are being infringed. The categories are:

1) a “mere encounter” (or request for information) which need not be supported by any level of suspicion but is not an order and can be completely ignored.

2) an “investigative detention” which must be supported by a reasonable suspicion; it subjects the individual to a stop and a period of detention but does not rise to the level of the functional equivalent of arrest, and

3) “custodial detention,” or the functional equivalent of an arrest, which must be supported by probable cause.

A person is subject to an investigative detention, which requires reasonable suspicion, when a reasonable person in their position would not feel free to leave.

In this case, the Superior Court concluded that the officers did not need any level of suspicion to approach the parked car on foot, but they needed reasonable suspicion to break the windows and pull the defendant out of the car. The Court, however, found that they had reasonable suspicion based on the totality of the circumstances - the defendant was in a car which had numerous obvious motor vehicle code violations, there was drug paraphernalia in plain view, he pretended he did not see the police even though he opened his eyes, and he also had a gun on him.

Accordingly, the police were justified in breaking into the car and removing him from the vehicle. Whether or not the police may retrieve contraband from a car when the contraband is in plain view is still an open question; as previously mentioned, the Pennsylvania Supreme Court recently granted review on that issue. So far, however, the Superior Court has repeatedly held that police may enter a car to retrieve obviously visible contraband even without a search warrant. The police ordinarily may not search a car without a warrant, but when guns and drugs are out in the open, the police may not need to get a warrant.

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Zak Goldstein 7/25/23 Zak Goldstein 7/25/23

PA Superior Court: Adult Conviction May Require SORNA Registration for Some Offenses Committed as Juvenile

Criminal Defense Attorney Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Asbury, holding that a sentence including lifetime registration under the Sex Offender Registration and Notification Act (SORNA) as a Sexually Violent Predator(SVP) may be imposed on a defendant convicted as an adult for acts committed as a juvenile. This holding also applies to individuals charged as adults for crimes they committed as juveniles. This means that an individual could commit a crime qualified as a non-delinquent act while under the age of eighteen and not be tried or convicted of that act until they are 35 and still be required, under SORNA, to register as a sex offender for the remainder of their life. In most cases, SORNA registration does not apply to offenses committed as a juvenile, but as Asbury shows, there are some exceptions to that general rule.

The Facts of Asbury

The defendant was sixteen years old when he committed two counts of rape by forcible compulsion. The first count involved the use of a firearm to aid in the commission of the offense, and the second count involved physically overpowering the victim with no weapon used. The first count is not considered a delinquent act under the Juvenile Act codified under 42 Pa.C.S.A. § 6302 because the defendant was over the age of fifteen at the time of the rape and it involved the use of a deadly weapon. Instead, Pennsylvania law provides that this conduct is only a crime rather than a delinquent act. Part of the guilty plea that was agreed upon by both parties was that the defendant was to have the court determine whether he was required to register as a sex offender pursuant to the Sex Offender Registration and Notification Act (SORNA). The determination whether the defendant should register as a sex offender was only for the first count as that count involved a handgun. The second count, which did not involve a deadly weapon, would not trigger sex offender registration because the defendant committed the crime as a juvenile.

The court also ordered the Sexual Offenders Assessment Board (SOAB) to conduct an assessment of the defendant to determine if he met the criteria for classification as a sexually violent predator (SVP) under Pennsylvania law. The SOAB ultimately concluded that the defendant should be classified as an SVP, and the trial court agreed. Pursuant to the plea agreement, the court sentenced the defendant to 60 to 120 months’ incarceration as well as lifetime sex offender registration. The defendant appealed.

The Superior Court’s Decision

On appeal, the defendant argued that he should not have to register as a sex offender pursuant to SORNA because he had committed the crimes as a juvenile. The Pennsylvania Supreme Court previously ruled in the case of In re J.B. that juvenile offenders have a protected right to reputation which is encroached on by SORNA’s presumption of recidivism, the presumption is not universally true, and there are alternative means for ascertaining the likelihood of reoffending. Therefore, requiring juveniles to register based solely on the offense of adjudication violates the Pennsylvania Constitution. The Court also held that the application of SORNA’s current lifetime registration requirement upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebuttable presumption. Following J.B., the Superior Court ruled in Commonwealth v. Haines that the PA Supreme Court’s holding should apply with equal weight to a defendant convicted as an adult for crimes committed as a juvenile.

In this case, however, the Superior Court affirmed the sentenced registration requirements. The court rejected the defendant’s argument based on J.B. and Haines that the lifetime reporting requirements, for acts committed as a juvenile, under SORNA violated his due process rights by “utilizing an irrebuttable presumption” of a high likelihood of recidivism, even though that presumption is not “universally true.” The court accepted the Commonwealth’s argument that while it is unconstitutional to require lifetime SORNA reporting for “delinquent acts” committed by a juvenile even if later convicted and sentenced as an adult, the specific crime the defendant committed which led to his SVP classification did not qualify as a “delinquent act” under the Juvenile Act. The Court based its decision on the rationale that the Pennsylvania State Legislature specifically excluded certain crimes committed by juveniles from classification as “delinquent acts” because there are crimes that are so heinous that they require individuals to be tried as adults. The Court further reasoned that SVP classification is not a punitive measure designed to punish defendants; instead, it is a safety measure designed and applied to protect the community at large.

The Impact of Asbury

The Court’s ruling highlights the importance of the specific statutory language in Pennsylvania’s laws. In many cases, criminal charges are not brought until long after the acts have been committed, and sometimes convictions occur for adults who committed these crimes as juveniles. Just because an act is committed by a juvenile does not mean the act qualifies as a “delinquent act,” affording the individual certain protections that they would have had had they been charged sooner. Certain crimes committed by juveniles are always essentially adult crimes and may result in adult consequences.

At the same time, most sex offenses committed as a juvenile for which someone can be prosecuted as an adult do not trigger SORNA registration under Haines. In order for a court to impose a registration requirement on an adult who has been prosecuted for an offense they committed as a juvenile, either 1) the offense must have been committed with a deadly weapon, 2) the defendant must have had a prior serious sex offense, or 3) the court must find the defendant to be a sexually violent predator. Otherwise, the defendant should not have to register.

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Goldstein Mehta LLC - Philadelphia Criminal Defense Attorneys

Zak Goldstein 7/20/23 Zak Goldstein 7/20/23

PA Superior Court: Defendant Must Show Link Between Case and Trial Judge's Subsequent Arrest in Order to Win New Evidence PCRA

Philadelphia Criminal Defense Lawyer Zak T. Goldstein,

The Pennsylvania Superior Court has decided the case of Commonwealth v. Myers, holding that the trial court properly denied the defendant’s PCRA petition because the defendant failed to show that unrelated corruption by the trial judge tainted the conviction in his case. Myers shows the importance of actually linking subsequent misconduct by police and court officials to the defendant’s individual case. Where the defendant can show only that the police or judge did something wrong that was unrelated to the case, the defendant is unlikely to prevail in PCRA litigation.

The Facts of Myers

Myers pleaded guilty to third-degree murder. Pursuant to a negotiated guilty plea, he received a sentence of 20 – 40 years’ incarceration. His co-defendant also pleaded guilty and received a shorter sentence. Two or three years later, the trial judge resigned from the bench because he had been caught stealing drugs from an evidence room in the courthouse. The judge pleaded guilty to related crimes, and the Supreme Court permanently disbarred him.

About seven years later, Myers filed a Post-Conviction Relief Act Petition arguing that he should receive a new trial as a result of the judge’s corruption. Myers invoked the newly discovered evidence exception. Ordinarily, a PCRA petition must be filed within a year of a defendant’s sentence becoming final. There is an exception, however, for when a defendant uncovers new evidence which could not have been discovered prior to trial through the exercise of due diligence and that evidence calls the validity of the conviction in to doubt. In that case, the statute allows the defendant a new one year window in which to file a PCRA petition and seek a new trial based on the new evidence.

Here, the judge resigned from the bench in 2012 and was convicted in 2015. The defendant, however, did not file his PCRA petition until 2022. He claimed that he did not learn of the judge’s corruption until shortly before he filed his petition because he did not have access to many resources while in prison.

The trial court denied the petition. It found that 1) the judge’s conviction had been a matter of public record since at least 2015, so the defendant should have filed a petition within the 60 day deadline for new evidence that applied at the time, 2) the defendant admitted in his petition that he found out about the conviction in March 2021 but did not file the petition within the old 60 day deadline, and 3) the defendant failed to link the judge’s conviction to his own case or show how the judge’s drug theft and issues affected his ability to accept the negotiated guilty plea. The defendant appealed.

The Superior Court’s Decision

The Superior Court affirmed the denial of the PCRA petition. The Court rejected the trial court’s first two reasons but accepted the third. Specifically, the defendant was not required to file anything within 60 days of the conviction becoming public because the public records presumption no longer applies. Recognizing that inmates do not necessarily have access to the news or legal databases, the Supreme Court eliminated the presumption that inmates are aware of public records like court documents in a case called Commonwealth v. Small in 2020. Therefore, the defendant was not expected to know about the judge’s conviction or resignation.

Second, a PCRA based on newly discovered evidence must be filed within a year based on a 2018 amendment that extended the deadline from 60 days to one year. As the trial court denied the petition for not having been filed within 60 days, the Superior Court found that the trial court erred for that reason, as well. The court simply failed to recognize the amendment to the law.

The Superior Court affirmed on the third reason, however. The Court found that the defendant failed to show that anything about the judge’s illegal behavior tainted his own case. The defendant had accepted a negotiated guilty plea, meaning he agreed to plead guilty and that he and the Commonwealth would recommend the same sentence to the judge. The judge accepted that negotiated plea. Thus, even if the judge had significant corruption or personal issues, there was nothing about those issues that would have affected the guilty plea or the defendant’s decision to plead guilty. In other words, the defendant was unable to show that anything about the judge’s behavior actually affected the case.

Finally, although the Court did not apply the old public records presumption, it did express skepticism that the defendant would not have heard about the judge’s behavior for so long. Although the presumption no longer applies, a defendant must be able to plead and prove that they acted with due diligence and could not reasonably have learned of the new evidence sooner. Here, the defendant failed to do so. Therefore, the Court affirmed the denial of the petition.

The Impact of Myers

The Court’s ruling shows the importance of linking a judge or police officer’s misconduct to the defendant’s specific case. In many cases, detectives or police officers get arrested long after a defendant has been found guilty and sentenced. In those cases, the arrest is often not the officer’s first incident of misconduct, and the Commonwealth and/or police may have had information in their files as to other acts of misconduct that should have been disclosed prior to trial. In that case, it may be possible to invoke the newly discovered evidence exception and allege a Brady violation. In other cases, there may not have been anything that the Commonwealth should have disclosed at the time, but the misconduct may have been so similar to something that happened in the defendant’s case that it calls the legitimacy of the defendant’s conviction into question. For example, if a witness claimed that the police coerced them into giving a statement and the officer involved is later disciplined for doing something similar, it may be possible to argue that the behavior is so similar that it should allow for a new trial under the newly discovered evidence exception.

Ultimately, the mere fact of a subsequent arrest or disciplinary action against someone involved in the case does not automatically result in a new trial. When a detective, judge, or prosecutor gets arrested after someone has been convicted, it is critical to understand when the exception applies and when it does not. It is also important to re-investigate the case thoroughly in order to establish any possible links between the misconduct and the defendant’s case.