Philadelphia Criminal Defense Blog

Zak Goldstein 10/9/23 Zak Goldstein 10/9/23

Third Circuit: Defendant Has Reasonable Expectation of Privacy in Girlfriend's Rental Car

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

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Christopher Montalvo-Flores, finding that the District Court should have found that the defendant had a reasonable expectation of privacy in a rental car he was operating. The evidence from the suppression hearing showed that his girlfriend loaned him the car, but it also showed that he did not sign the rental paperwork and he did not have a driver’s license. Nonetheless, the Court found that he had a reasonable expectation of privacy in the vehicle and therefore could challenge an unlawful search of that vehicle.

The Facts of Montalvo-Flores:

In November 2019, officers executed an arrest warrant at a hotel in New Jersey for Montalvo-Flores, the defendant, in connection with his suspected involvement in a robbery. A search incident to arrest of the defendant yielded keys to an Enterprise rental car that was leased by his girlfriend. Although the defendant insisted that the keys were his, officers had knowledge that the defendant did not have a valid driver’s license. Police officers located the car in the hotel parking lot, they discovered that it was not reported lost or stolen, and they learned that its registered owner was Enterprise Rental Car Company. Earlier that day, police officers observed the girlfriend give the defendant the keys. They also observed the defendant operating the rental car.

Police officers then called Enterprise’s regional risk manager to obtain permission to search the car. The officers told Enterprise’s manager that the defendant was operating the car while involved in criminal activity. The Enterprise manager, noting that the rental contract prohibited the use of the car for criminal purposes and that the defendant was not listed on the rental agreement, purported to give officers consent of the lessee, the girlfriend, to search the car. Inside the car, officers found 304 grams of cocaine in the trunk and $35 in the center console. As a result, the defendant was charged with possession of intent to distribute cocaine in federal court.

The Procedural History

The defendant moved to suppress the cocaine and money that officers recovered after searching the rental car. He argued that he lawfully possessed and controlled the car based on permission to use the car given to him by his girlfriend. In response, the government acknowledged that the girlfriend gave him permission to operate it, but the prosecution asserted that police lawfully searched the car without a warrant because the defendant lacked a legitimate expectation of privacy due to his lack of a valid driver’s license and the fact that he was not listed on the car’s rental agreement. The government also argued that the police had consent from the car’s registered owner, Enterprise, to search the car. The United States District Court held a hearing on the motion to suppress ion order to determine the legality of the search and whether the drugs and money would be admissible at trial.

The Suppression Hearing

During the suppression hearing, the officers acknowledged that the defendant’s girlfriend rented the car and that the defendant possessed the keys. Detective Holmes, the main witness for the government, testified that prior to the search, fellow officers observed the girlfriend giving the defendant the car and that fellow officers observed the defendant operate the car. The government also acknowledged the defendant’s possession of the car when a witness for the government testified that he called Enterprise and told the agent that the person operating the car did not have a license, had warrants, and was part of an armored truck robbery. The officers used the keys to open the car and found the cocaine and cash that the defendant moved to suppress after the Enterprise agent gave permission to search.

The District Court denied the defendant’s motion to suppress, holding that he lacked standing because he failed to establish a reasonable expectation of privacy. The District Court based its opinion on Byrd v. United States, 138 S. Ct. 1518 (2018). The District Court concluded that, contrary to evidence given at the suppression hearing, the defendant “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.” After the denial of the suppression hearing, the Defendant proceeded by way of stipulated bench trial. The District Court found him guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He was sentenced to 40 months of incarceration followed by three years’ supervised released. He appealed to the United States Court of Appeals for the Third Circuit.

The Third Circuit’s Ruling

The United States Court of Appeals for the Third Circuit reversed. It found that the defendant had a reasonable expectation of privacy in his girlfriend’s rental car. The Court of Appeals opined that there was clear error in the District Court’s factual finding that the Defendant “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.”

The Court began by citing Katz v. United States, 389 U.S. 347, 361 (1967) in explaining that when making a reasonable expectation of privacy analysis, a trial court must begin with a two-prong approach to determine first, whether the defendant “exhibited an actual (subjective) expectation of privacy, and second, whether his expectation was one that society is prepared to recognize as “reasonable.” The Court noted that the defendant bears the burden of proving each element.

In finding a reasonable expectation of privacy, the Third Circuit based its opinion on the unrebutted testimony of the detective. That testimony showed the defendant proved the first prong when the officers took his keys from him and he exclaimed “those are my rent-a-car-keys!” Officers needed the keys to open the locked car parked outside his hotel. This showed that the defendant believed he had privacy in the car and took steps to preserve his privacy.

During its analysis of the second prong, the Court explained that when deciding whether the expectation of privacy is reasonable, a must make a fact-based analysis dependent on the strength of the defendant’s interest in the car and the nature of his control over it, noting that ownership is not necessary. The Third Circuit cited a case where the Supreme Court held that “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Noting that “one who . . . lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” The Appeals Court listed several facts to show that the defendant’s expectation of privacy was reasonable, noting: the lessee, the girlfriend, was the defendant’s girlfriend; she gave the car’s keys to him; he possessed the keys when arrested; the car was parked outside his hotel room; it was locked; and he was observed by police possessing and operating it. The Court reasoned that the context strongly suggested that the defendant had dominion and control of the car with his girlfriend’s permission finding the District Court’s determination was clear error.

Because the Appeals Court found the defendant had a reasonable expectation of privacy in the car, the government needed to justify its warrantless search at the suppression hearing by showing probable cause to search the car. The Appeals Court vacated the defendant’s conviction and the denial of his motion to suppress, and it ordered the case be remanded for further proceedings. This case demonstrates the fact-specific nature of suppression hearings and how a good attorney can establish a legitimate privacy interest through tactical cross-examination. This ruling shows that while a defense attorney may do a good job through skillful cross-examination in establishing a legitimate privacy interest of the defendant, trial courts do not always make the proper rulings. This case recognizes that while the initial battle may be lost the war for innocence does not stop at “guilty.”

Facing criminal charges or appealing a conviction in state or federal court? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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 9/26/23 Zak Goldstein 9/26/23

Not Guilty: Attorney Goldstein Obtains Full Acquittal in Rape Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal in a rape case. In Commonwealth v. P.S., the defendant was charged in Philadelphia with rape of a child and related charges for allegedly assaulting his biological daughter. According to the complainant, the assaults began when she was between the ages of 3 - 5 and continued until she was about 13 or 14. She did not report them until she was around 16, but prosecutors arrested P.S. and charged him with a number of sex crimes.

P.S. retained Attorney Goldstein to defend against the allegations. Attorney Goldstein investigated the case, obtained discovery from the District Attorney’s Office, and learned that the complainant’s mother, from whom the client had separated shortly before the allegations were first made in Family Court, had been claiming that P.S. assaulted the complainant for years. Attorney Goldstein investigated further and obtained family court transcripts which showed that the complainant had told judges that the assaults did not actually happen and that there was a lengthy history of litigation over child custody and child support. The family court records showed that the complainant’s mother had made these unfounded allegations supposedly on behalf of her daughter anytime she wanted to deny P.S. from having custody, but she had continued to let him see her and had never gone to the police. This behavior obviously did not make sense if the mother believed that child abuse was actually occurring.

P.S. proceeded to trial before a judge in the Philadelphia Court of Common Pleas. The complainant testified that P.S. assaulted her, but her testimony differed wildly from what she had told social workers in a videotaped interview which took place at the Philadelphia Children’s Alliance. Through cross-examination, Attorney Goldstein was able to show that P.S.’s story had changed repeatedly, she had previously told a judge that the assaults did not actually happen, all of her medical exams had been totally normal, and her mom had been telling her that her father had molested her since she was about three years old. Finally, when the complainant’s mother testified, it quickly became clear that she had fabricated the allegations by insisting that these horrible things happened only after she began suing P.S. for child custody and child support.

The trial judge promptly acquitted P.S. at the end of the one day waiver trial. The judge found that the allegations were fabricated and that the complainant’s mother had essentially traumatized her daughter and put her up to making the allegations. Instead of facing decades in prison and a lifetime of Megan’s Law registration, P.S. has now been found not guilty and will be eligible to have the charges expunged.

Allegations of child abuse and child sexual assault are among the most serious possible charges and the most difficult to defend. Judges and juries often have a difficult time believing that children could lie about something so horrible. Fortunately, our attorneys are experienced in investigating these cases and cross-examining the complainants and witnesses in order to effectively fight back against false charges. We have won many of these cases at preliminary hearings, at trial, on appeal, and in PCRA litigation.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 9/22/23 Zak Goldstein 9/22/23

Bail Pending Appeal After a Criminal Conviction in Pennsylvania

Many criminal defendants who go to trial and are convicted or who plead guilty and receive a harsher sentence than expected opt to appeal their convictions and sentences to the Pennsylvania Superior Court. In general, it is usually possible to challenge both the underlying conviction as well as the resulting sentence that the judge imposed. There may be all sorts of reasons to appeal - the judge may have committed an error of law or imposed an excessive sentence, or the evidence may have been insufficient and the jury got it wrong. But criminal appeals in Pennsylvania can take time. Post-sentence motions may be decided quickly, but a full appeal to the Superior Court or beyond can take a year or two. Accordingly, we often receive questions from clients as to whether they may be eligible for bail pending sentencing or bail pending appeal.

Bail Pending Sentencing

The Pennsylvania Rules of Criminal Procedure govern bail pending appeal. Specifically, Pa.R.Crim.P. 521 deals with Bail After Finding of Guilt.

In general, the rule provides that before sentencing, a defendant who has been found guilty of an offense which is punishable by a life sentence or the death penalty shall not be released on bail.

In other cases, whether a defendant is entitled to bail pending sentencing depends on the length of the potential sentence. Prior to sentencing, where the maximum possible sentence cannot exceed three years, the defendant should presumptively remain on bail.

Where the maximum possible sentence could exceed three years, a defendant who was on bail pending trial should generally remain on bail pending sentencing unless the judges finds:

(i) that no one or more conditions of bail will reasonably ensure that the defendant will appear and comply with the conditions of the bail bond; or
(ii) that the defendant poses a danger to any other person or to the community or to himself or herself.

If the judge finds that either of these factors exist, the judge may revoke or deny bail. Such a ruling can be appealed to the Superior Court, but bail appeals can take a few months.

Bail Pending Appeal

After sentencing, the rules change, and the defendant’s right to bail pending appeal depends on the length of the actual sentence imposed. For a defendant who has received a county jail sentence (meaning a sentence with a maximum of less than two years), the defendant has the same right to bail pending appeal as before the trial. Again, the judge may revoke bail for the same reasons that would justify revoking bail pending sentence.

For a defendant who received a state prison sentence (meaning a sentence with a maximum longer than two years), there is no longer a right to bail pending appeal. A judge, however, retains the discretion to allow such a defendant to remain on bail pending appeal where the judge thinks it’s appropriate.

For both groups of defendants, the judge can obviously require the defendant to actually file post-sentence motions and/or the actual appeal in order to remain on bail.

Finally, the rules require the judge to state the reasons for the denial or revocation of bail on the record so that the defendant may seek review in the Superior Court by filing a petition for specialized review should the defendant wish to appeal the bail ruling. The petition for specialized review is a separate appeal to the Superior Court which will usually be resolved more quickly than the full appeal.

Changes in Bail Conditions

It is important to note that in either case, a defendant who receives bail pending appeal may not receive the exact same bail. The judge could change the conditions or increase the bail.

Additionally, this rule does not typically apply to defendants who have appealed from a judgment of the Philadelphia Municipal Court. The Municipal Court has its own unique appeal procedures in which the defendant may seek a trial de novo. Filling a notice of appeal for a trial de novo actually vacates the original conviction, so the defendant then remains on the same pre-trial bail that existed prior to trial.

The rules for bail pending sentencing and bail pending appeal depend on the potential sentence and the actual sentence imposed. Short sentences for less serious offenses will typically allow for bail pending appeal, while judges are much less likely to grant bail pending appeal in serious cases or for cases involving lengthy sentences.

Bail Pending PCRA

Finally, the rules are silent on whether a defendant may be entitled to bail while a Post-Conviction Relief Act Petition is pending. In general, most defendants will not receive bail during PCRA litigation. The case law, however, does provide judges the authority to release a defendant on bail pending PCRA litigation when the judge believes the petition has strong merit. This is much less common than bail pending appeal, but it is not out of the question should the petitioner have a particularly strong PCRA issue.

Facing criminal charges or appealing a conviction? We can help.

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

Zak Goldstein 9/8/23 Zak Goldstein 9/8/23

Federal Habeas: Third Circuit Finds Trial Counsel Ineffective for Failing to Impeach Key Prosecution Witness or Object When Judge Instructed Witness to Testify Favorably for Commonwealth

The United States Court of Appeals for the Third Circuit has decided the case of Rogers v. Superintendent Greene SCI, finding that the district court should have found the defendant’s trial attorney provided the ineffective assistance of counsel when he failed to impeach the Commonwealth’s main witness with prior inconsistent statements or object when the trial judge threatened to have the witness charged with perjury if the witness did not testify favorably for the Commonwealth. This is an important decision; federal habeas petitions can be very difficult to win. Fortunately, the Third Circuit recognized that defense attorneys must pay attention during trial and advocate strategically for their clients. They may not remain silent in the face of obvious misconduct or fail to use critical impeachment evidence against the Commonwealth’s star witness.

The Facts of Rogers

In Rogers, the defendant had been convicted of third-degree murder. The evidence introduced at trial suggested that a man named Hayes saw Rogers standing on a corner. Hayes approached Rogers, the men had words, and they both pulled out guns. They began shooting at each other. A third man across the street started shooting, as well. Hayes drove away. Rogers, Hayes, and the third man survived, but Rogers’s friend Green was killed by a stray bullet from Rogers’s gun.

Multiple witnesses told the police that Hayes fire first and Rogers defended himself. A final witness, Singleton, initially refused to make a statement. He later told the police that Hayes never fired a gun. Three years later, after Hayes was arrested and charged in the shooting, Singleton changed his story and said that Hayes had shot at Rogers. Singleton continued to maintain, however, that Rogers fired first and that Hayes acted in self-defense.

The Commonwealth charged both Hayes and Rogers with first-degree murder, but it tried them separately. Hayes’s trial was first. Singleton and a witness named Summers both testified. Singleton told his recent, new story that Hayes shot at Rogers but only in self-defense. Summers changed her story. She had told the police that Hayes shot first, but at trial, she said she didn’t see who fired first. The jury acquitted Hayes of all charges.

Rogers’s trial took place a week later. Summers again testified that she did not see who fired first. For the first time ever, Singleton told the jury that Rogers acted in self-defense and Hayes fired first. Later in the day, the trial judge excused the jury and then admonished Singleton for the inconsistent testimony. The judge told Singleton that he had committed perjury and that if Singleton continued to play games, he would receive the maximum consecutive sentence for perjury. The judge told Singleton to “do some long hard thinking” before resuming his testimony because if he said Hayes shot first again, it would be perjury. Rogers’s attorney inexplicably failed to object.

Trial resumed the next day. This time, Singleton testified that his claim that Hayes fired first was wrong and actually Rogers had fired first. Singleton said he made a mistake because he was nervous. Rogers’s attorney did not object or cross-examine Singleton on the change in testimony. The jury found Rogers guilty of third-degree murder, and the judge sentenced him to 16 - 32 years’ incarceration.

The Appeals

Rogers appealed. The Superior Court affirmed. He then filed a Post-Conviction Relief Act (“PCRA”) petition. In the petition, he argued that he received the ineffective assistance of counsel when trial counsel failed to object when the judge threatened Singleton and told him how to testify and that his trial counsel should have cross-examined Singleton on the change in testimony. The PCRA court denied the petition. The Superior Court eventually affirmed. Rogers filed a similar petition in federal court under 28 U.S.C. § 2254. The federal district judge denied the habeas petition. Rogers appealed to the Third Circuit.

The Third Circuit reversed. It recognized that when a state prisoner’s attorney fails to provide the effective assistance of counsel, a federal court has the power to grant relief. The power to grant relief is limited, however. A federal court must presume that the state courts’ factual findings were correct and defer to the state court’s rulings on claims adjudicated on the merits unless they were 1) were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or 2) were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” This standard is difficult to meet.

The Third Circuit’s Ruling

Here, the Court found that Rogers met that standard. Trial counsel had testified at an evidentiary hearing that his decision was strategic; he did not see any basis for objecting to to the judge’s threats, and he thought that the jury would not find Singleton credible. He therefore decided to rely on Summers’s testimony. The lower courts accepted this explanation, but the Third Circuit rejected it. It found that Pennsylvania appellate courts have warned against such judicial conduct for decades and granted new trials in cases where judges behaved in this manner. The Court also disapproved of the fact that trial counsel did not appear to have watched the first trial or reviewed the testimony from that trial. The Pennsylvania Supreme Court has prohibited trial judges from questioning witnesses in a manner that suggests the judge has an opinion on the testimony, and so trial counsel should have objected. Counsel also should have cross-examined Singleton on the change in the story in order to highlight the inconsistencies for the jury. Singleton was the only real witness against Rogers, so discrediting Singleton could have resulted in a different verdict. As Singleton’s testimony was the most important, Rogers suffered prejudice in that he may have been acquitted or received a new trial on appeal had trial counsel properly objected and impeached Singleton.

Therefore, the Third Circuit vacated the conviction and granted Rogers a new trial. Ultimately, defense attorneys are not expected to be perfect. Trials happen quickly, and attorneys have to make quick decisions on how to try to fight a case. Sometimes defendants lose trials even when the defense attorney did a good job. Or the defense attorney may have had a good reason for making a decision regarding objections or a line of cross-examination but not obtained the hoped for result. But attorneys may not sit silent while judges threaten witnesses or express opinions on the defendant’s guilt or innocence, and they must use strong exculpatory evidence properly. They cannot just do nothing and hope for the best when effective potential defenses are available. This case recognizes that fact, and so Rogers will receive a new trial.