Philadelphia Criminal Defense Blog

Zak Goldstein 7/4/22 Zak Goldstein 7/4/22

PA Superior Court: No Search Warrant Required to Obtain Pharmacy Records of Pseudoephedrine Purchases

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McFarland, holding that information obtained from the NPLEX is not federally protected health information. Therefore, police do not need to require a search warrant to obtain records from that system. The NPLEX is a system that is used by pharmacies to track over-the-counter Pseudoephedrine purchases.

Commonwealth v. McFarland

An officer entered an Altoona, PA residence in order to attempt to serve a search warrant on two occupants of the residence on March 5, 2018. The defendant was found in the residence with the two other occupants. The officer observed a glass smoking pipe that he deemed likely to be used for smoking methamphetamines, in addition to empty blister packets, batteries, and a soda bottle with a white crystal substance inside. The other officers conducted a protective sweep of the house for any other individuals and noted other items they deemed consistent with manufacturing methamphetamines via the one-pot method.

Notably, methamphetamine can be manufactured using a two-liter bottle, known as the one-pot method. Pseudoephedrine is a primary ingredient to manufacture methamphetamine via this method. It can be purchased at pharmacies or retail stores in blister packets. The medication containing pseudoephedrine is intended to treat allergies and cold symptoms.

The officers notified the Pennsylvania State Police Clandestine Lab, and officers from that organization went to the house and concluded that the residence contained a methamphetamine production lab.

The officers then searched the National Precursor Log Exchange (NPLEX), which is a database that contains information provided by buyers of pseudoephedrine such as their name, address, and date of birth, in addition to the date, time, brand, and amount of pseudoephedrine purchased. This system also limits the amount of pseudoephedrine purchased by a person within a specified period of time.

The NPLEX log showed that the defendant had attempted to purchase Wal-Phed on November 26, 2017, but he was blocked because he had exceeded the 9-gram limit within 30 days. On January 4, 2018, the defendant was blocked from purchasing a 10-count box of pseudoephedrine. On January 28, 2018, the defendant was blocked from making a purchase of a 10-count box of pseudoephedrine. On February 5, 2018, the defendant successfully purchased a 20-count box of pseudoephedrine. On February 19, 2018, the defendant successfully purchased a 20-count box of pseudoephedrine. On March 2, 2018, the defendant successfully purchased a 10-count box of pseudoephedrine. Between January 2017 and March 2, 2018 of the NPLEX log, the defendant had made 28 successful purchases and attempted 17 blocked purchases of pseudoephedrine in Altoona.

A preliminary hearing was held for the defendant on May 23, 2018. After this hearing, the defendant filed an omnibus pretrial motion seeking suppression of the NPLEX log because the officer obtained the log without securing a search warrant or court order first. The motion also sought dismissal of all charges, arguing that the Commonwealth had not found evidence that the defendant was aware of the drug manufacturing operation.

The suppression hearing was held on May 24, 2019 and after this hearing, the court ordered both parties to file memoranda of law, specifically addressing a prior opinion in the case of Commonwealth v. Babcock. Babcock set the precedent in a nearby county that police could obtain NPLEX logs without obtaining a search warrant, though the defendant argued that Babcock was contrary to other existing precedents. The trial court denied the defendant’s motion, and the case proceeded to trial in February 2020. The defendant was found guilty of manufacturing a controlled substance and conspiracy and not guilty of the rest of the charges.

On July 13, 2020, the defendant filed a post-sentence motion, arguing that the verdicts were against the weight of the evidence and that the jury’s verdicts were not sufficiently supported by evidence, as well as arguing that the trial court should have suppressed the NPLEX logs. The post-sentence motion hearing was conducted on September 21, 2020. The Commonwealth’s post-sentence motion, in which the prosecution argued that the trial court had erred in failing to sentence the defendant to the statutory mandatory minimum sentence, was granted, while the defendant’s motion was denied.

The defendant filed an appeal to the Pennsylvania Superior Court. On appeal, he argued that the trail court erred in denying the motion to suppress because the police should have been required to obtain a search warrant in order to get the pharmacy purchase information.

The Pennsylvania Superior Court’s Decision

The defendant argued that there was a reasonable expectation of privacy in the health information that the police obtained without a warrant under the Health Insurance Portability and Accountability Act (HIPAA), which protects information that was obtained in the NPLEX logs.

The Superior Court agreed with the trial court’s decision that the NPLEX logs were not protected information. The NPLEX is a real-time stop-sale system which is intended to be used by law enforcement agencies in addition to pharmacies and other businesses to track sales of ephedrine and pseudoephedrine to ensure individuals do not go over the purchase limit. Data such as the name and address of the purchaser, the name and quantity of the product purchased, the date and time of the purchase, and the purchaser’s identification and signature are allowed to be viewed by law enforcement, according to federal law.

HIPAA is intended to regulate the use and disclosure of health information, which is defined as past, present, or future health or conditions of an individual, in addition to the provision of health care to an individual and any past, present, or future payment for health care to an individual. NPLEX logs do not fall under this definition, and instead would be classified as retail purchase information. NPLEX demonstrates the time and date of purchase, as well as freely given identification of a purchaser.

The Superior Court also reviewed Babcock and agreed with the Commonwealth’s arguments. The Superior Court concluded that the defendant had no protected privacy interest regarding the NPLEX logs, so the Fourth Amendment did not apply, and police did not have to obtain a search warrant.

The defendant also argued that there was insufficient evidence to convict him of manufacturing a controlled substance and conspiracy beyond a reasonable doubt. The Superior Court deemed this claim waived because the defendant did not specify in his statement of errors which elements the Commonwealth failed to prove.

The defendant further argued that his presence at the residence where drug manufacturing occurred was not sufficient to convict him of conspiracy. The Superior Court determined that his extensive, 3.5-year purchase and attempted purchase history of pseudoephedrine, many coinciding with purchases and attempted purchases of the other defendants in the case, established a conspiracy. Additionally, the defendant’s close proximity to the drug manufacturing paraphernalia on March 5, 2018 did not help his case, either. Finally, the defendant was found with $3500 in cash on his person, which the testifying officer explained was consistent with drug trafficking.

The defendant also argued that the trial court should not have denied his claim that the jury’s verdicts were against the weight of the evidence presented, claiming the majority of evidence was based solely on the NPLEX logs. According to relevant case precedent, the jury was free to believe some, all, or none of the evidence presented. The defendant must also establish that the evidence that supported his conviction was vague and uncertain in order to succeed on a weight challenge. The Superior Court determined that there was no abuse of the court’s discretion in rejecting the defendant’s weight claim. As a result, the sentence was affirmed, and the defendant’s appeal was denied.

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Read the Superior Court’s Opinion

Zak Goldstein 6/3/22 Zak Goldstein 6/3/22

PA Superior Court: Stop Illegal Even Though Defendant in High Crime Area and Sweating in 86 Degree Weather

The Pennsylvania Superior Court has decided the case of Commonwealth v. Anderson, holding that the defendant was illegally stopped by the police because they did not have reasonable suspicion to stop him. The police did not have reasonable suspicion to detain him solely because he was in a high crime area and sweating in very hot weather. This conclusion seems obvious, but a panel of the Superior Court had initially overruled the trial court’s order granting a motion to suppress. Fortunately, an en banc panel of the Superior Court granted re-argument and reconsidered.

Commonwealth v. Anderson

A Harrisburg, PA police officer was driving an unmarked vehicle with four other uniformed and armed police officers through a fried chicken store’s parking lot that was known to the officers as a high crime, high drug area. One of the officers observed the defendant on the ground next to a pick up truck. He appeared to be crawling on the ground, but he was not doing anything illegal. The officers approached the defendant and noticed that he was sweating a lot. Of course, it was 86 degrees outside with 67% humidity. The officers asked the defendant if he was okay. He responded that he had dropped something on the ground. The police then left him alone for a little bit.

The defendant entered the fried chicken restaurant. After he went inside, the officers noticed that the driver’s side window of the truck was down. They believed that to be uncommon in this section of the city. They also noticed that the truck was not parked within the lines of the parking space, leading to speculation that the driver could have been intoxicated. The officers continued to watch the defendant while he was inside the restaurant. They noticed that he did not order food, but he did purchase a soda. He also appeared to be pacing while inside.

The defendant exited the restaurant. He looked at the officers and then began to walk in the other direction. The officers approached the defendant again and asked to speak with him. One of the officers asked for ID, and the defendant provided his identification card. With the identification still in his possession, the officer then specifically asked the defendant if he was on parole and if there was anything illegal on his person. The defendant responded that he was on parole but that he did not have anything on his person. Notably, the officers did not document that the defendant was profusely sweating nor exhibiting signs of being under the influence during this second encounter with the defendant.

Apparently unsatisfied with the defendant’s answers, one of the officers asked for permission to search the defendant. The defendant gave verbal consent to search him. The officer searched the defendant’s pockets and found nothing of significance. He then swept over the defendant’s groin region and felt a hard and distinct bulge and, according to the officer, “it was immediately apparent to me that he had a substantial amount of crack cocaine down the front of his pants.” The officer would later testify that “before [the crack] was recovered, I remember specifically saying to my partner, he has an ounce of crack down his pants. And sure enough, we removed 28.3 grams of crack cocaine.” At this point, the officers decided to place the defendant under arrest. The defendant attempted to flee, but he was tackled a few feet away and was subsequently arrested and charged with various drug offenses.

The defendant filed a motion to suppress. Specifically, the defendant argued that the officers lacked both reasonable suspicion and probable cause when the first stopped him. Additionally, the defendant argued that his consent to the officers’ search was not knowingly, voluntarily, or intelligently made. At the motion to suppress hearing, the officers testified to the above facts. Additionally, the defendant testified and stated that one of the officers had patted him down before he even went into the restaurant. Also, he said that after he left the restaurant, the officers patted him down again and rubbed and grabbed his testicles and penis. He also disputed that he ran because he said the officers had a K-9 unit on scene during these interactions.

At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress. The suppression court found the testifying officer to be credible, but the court found that the officers had exceeded the scope of consent that the defendant had granted to him. Specifically, the court said that “there was nothing in the verbal exchange between the officer and the defendant as to what the officer was looking for, or where the officer intended to search” and thus a reasonable person would not have expected the officer to search his groin area. Additionally, the suppression court found that the second interaction with the police began as a mere encounter and then escalated into an investigative detention and that the officers lacked reasonable articulable suspicion that would have justified that stop. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s First Decision

In its first decision, the Pennsylvania Superior Court reversed the trial court and remanded the matter for further proceedings. In this initial non-precedential decision, the majority concluded that both interactions involving the defendant and the police were mere encounters. The majority held that the defendant’s consent was not the product of an illegal detention and that the officers had not exceeded the scope of the defendant’s consent.

The dissent agreed with the trial court and opined that the encounter had escalated from a mere encounter to an investigative detention. The defendant then filed an application for re-argument en banc, arguing that the majority erred in concluding that the police were not performing an investigative detention and that the officers exceed the scope of his consent. The Superior Court granted the defendant’s request and withdrew the three-judge panel decision issued in this matter.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the suppression court’s order. Regarding the first interaction with the defendant, no one disputed that the initial contact with the officers was a mere encounter. Therefore, the Superior Court analyzed the second encounter to determine whether or not a reasonable person would have felt free to leave. Based on its review of the record, the Superior Court found that the interactions between the defendant and the officers was not a mere encounter. The Court reached this conclusion because the officers asked him if he had identification on him and whether he had anything illegal on his person and therefore a reasonable person would not have felt free to leave in this situation. Further, the Superior Court held that officers did not have reasonable articulable suspicion to stop the defendant in the first place. The en banc panel of the Superior Court found that the evidence that was presented at the suppression hearing showed that the officers had “nothing more than a ‘hunch’ that something was amiss.” The fact that the defendant was present in a high crime area, near a truck (that had windows down) that was not parked properly, and that the fact that the defendant was sweating in 86 degree weather was not sufficient to establish the requisite reasonable suspicion necessary to justify an investigative detention. Further, because the defendant was illegally stopped in the first place, his consent to search was invalidated. It was almost important that police had possession of his identification. Therefore, the suppression order stands, and the Commonwealth will not be able to use the evidence that was suppressed in its trial against the defendant.

Read the Opinion

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Criminal Defense Lawyer Zak Goldstein — Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 5/24/22 Zak Goldstein 5/24/22

PA Superior Court: Sentencing Court Must Determine at Time of Sentencing if Defendant Re-Entry Eligible

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Risoldi, holding that a sentencing court must determine at the time of sentencing whether a given defendant is “re-entry eligible.” The failure of the sentencing court to state on the record whether or not the defendant is re-entry eligible results in an illegal sentence which can be challenged on appeal.

This decision will benefit many defendants. Previously, a court’s failure to state that a defendant is re-entry eligible could be used by the Commonwealth to argue that the defendant was not in fact re-entry eligible and therefore that the defendant should not be eligible for early parole. Now, the sentencing judge is required to determine at the time of sentencing if the defendant is re-entry eligible, and a failure to do so will not automatically bar early parole.

The Facts of Risoldi

In Risoldi, the defendant was convicted of various offenses related to an insurance fraud scheme. The court sentenced her to 11.5 – 23 month’s incarceration along with $10 million in restitution. Risoldi appealed and challenged the restitution order. The Superior Court vacated the initial judgment of sentence and remanded the case for a new sentencing hearing. The trial court resentenced the defendant on the restitution portion of her sentence only and left the incarceration portion of the sentence intact. The court never stated whether the defendant was re-entry eligible. Risoldi appealed, arguing that her sentence was illegal.

What does re-entry eligible mean?

Under 42 Pa.C.S. § 9756(b)(3), “the court shall, at the time of sentencing, state whether or not the defendant is eligible to participate in a reentry plan at any time prior to the expiration of the minimum sentence or at the expiration of a specified portion of the minimum sentence.”

In practice, this is extremely important because a defendant who is re-entry eligible may be paroled early by the trial court even if the prosecution objects. If the defendant is not re-entry eligible, then the trial court may not be able to parole the defendant prior to the expiration of the minimum sentence. Thus, if a defendant receives a sentence of 11.5 – 23 month’s incarceration and is made re-entry eligible, the trial court may parole the defendant before 11.5 months. If the defendant is not re-entry eligible, then the Commonwealth could object to early parole before 11.5 months on that basis, and the trial court may not be able to grant parole. In Philadelphia, this rule is often not observed in practice, but an improper grant of early parole could be reversed on appeal.

The Superior Court’s Decision

In this case, the only issue was whether the sentence was illegal because the trial court failed to state whether the defendant was re-entry eligible at the time of sentencing as required by the statute. The defendant also argued that silence should be construed in her favor – meaning that where a court does not state anything on the record, the defendant should be presumed to be re-entry eligible. The Superior Court partially agreed with the defendant. It found that the statute contains a mandatory command for the trial court to determine eligibility at the time of sentencing. Therefore, the Superior Court remanded for the trial court to make that decision. If the trial court finds that the defendant is re-entry eligible, then she would be potentially eligible for early parole. The Court did not decide whether silence should make a defendant presumptively re-entry eligible, but fortunately, it does not make a defendant presumptively ineligible.

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Criminal Defense Lawyers Zak T. Goldstein, Esquire and Demetra Mehta, Esquire

Read the Court’s Opinion

Zak Goldstein 5/19/22 Zak Goldstein 5/19/22

PA Superior Court: Internet Search for Criminal Defense Lawyer May Not Be Used Against You at Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lang, holding that the trial court properly granted the defendant a new trial where the previous judge, who had been removed from the bench, allowed the Commonwealth to admit evidence that the defendant searched for a criminal defense attorney online before he was charged with any crimes. The result here seems obvious based on the constitutional right to a lawyer in both the Pennsylvania and United States Constitutions, but somehow the original judge had allowed this internet search into evidence.

Commonwealth v. Lang

The defendant, a priest, allegedly sexually abused the complainant when he was a minor at a church in Munhall, Pennsylvania. Specifically, the complainant alleged that the defendant took a naked picture of him and threatened to show the complainant’s friends this picture. The defendant also forced the complainant to masturbate him. The complainant did not report the abuse until 17 years after the alleged abuse occurred. The defendant was subsequently arrested and charged with attempted aggravated indecent assault, three counts of indecent assault, indecent exposure, corruption of minors, sexual abuse of children, and unlawful contact with a minor.

The defendant elected to proceed by way of a bench trial. At the trial, the Commonwealth called the complainant to the stand, and he testified to the above allegations. Additionally, the Commonwealth also admitted into evidence a Pennsylvania Attorney General report that disclosed the results of an investigation into clergy abuse in the Commonwealth of Pennsylvania. This report named several priests who were accused of misconduct, but the defendant was not one of them. However, the Commonwealth also introduced evidence of the defendant’s internet searches where he was searching for “top Pittsburgh criminal attorneys” one day after the release of this report. The defendant also testified at his trial. He specifically denied ever sexually abusing the complainant and claimed he did not even know him. The trial court was not persuaded by the defendant’s testimony and found him guilty of one count of unlawful contact with a minor, indecent exposure, corruption of minors, and three counts of indecent assault.

After his trial, but before his sentencing, the defendant’s case was assigned to a new judge. The defendant was sentenced to a term of 9 months’ to 2 years’ incarceration, followed by 5 years’ probation. The defendant filed a timely post-sentence motion arguing that he was entitled to a new trial based on the erroneous admission of his internet searches under the theory of consciousness of guilt. The post-trial court found that the defendant’s constitutional right to due process was violated by the introduction of the internet search evidence “being presented and being material to the outcome of the case” and that the prejudicial impact of that evidence “outweighed any probative value.” The post-trial then granted the defendant a new trial. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the post-trial court’s order granting the defendant a new trial. The issue before the Superior Court was whether a prosecutor could use a defendant’s search of an attorney in its criminal case against said defendant. Prior to this decision, Pennsylvania Appellate courts had never addressed this issue, and this was an issue of first impression. In making its decision, the Superior Court reviewed prior decisions that were tangentially related to this issue in Pennsylvania and in other jurisdictions. Specifically, the Superior Court analyzed cases where the prosecutor made comments about a defendant’s acquisition of counsel prior to being charged with a crime. In its analysis, the Superior Court found that that appellate courts would overturn convictions when prosecutors would make comments about a defendant’s acquisition of counsel prior to being arrested.

The Superior Court found these decisions persuasive and held that when a prosecutor comments on a defendant’s search for an attorney before charges are filed, the commentary implicates the Sixth Amendment right to counsel. As such, the Superior Court held that the post-trial court properly determined the admission of the defendant’s internet searches for criminal defense attorneys, before he was charged or implicated in any offenses, violated his constitutional right to due process and a fair trial. Further, the introduction of this evidence was not harmless and was prejudicial to the defendant. As such, the defendant will get a new trial and the Commonwealth will not be able to use his internet searches for an attorney in its case against him.

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