Pennsylvania Motion to Suppress Update: Illegally Seized Drugs May Not Be Introduced at Violation of Probation Hearing

NEW DEFENSES TO PROBATION VIOLATIONS IN PENNSYLVANIA

The Pennsylvania Supreme Court has dramatically re-interpreted search and seizure law for people who are serving sentences of probation or parole. In Commonwealth v. Arter, the Court ruled that “illegally-obtained evidence which is suppressed during criminal proceedings should likewise be suppressed during parole and probation revocation proceedings pursuant to Article I, Section 8 of the Pennsylvania Constitution.”

In plain English, this means that if a defendant who is already on probation or parole wins a motion to suppress the evidence in a new case, the evidence cannot then be used against the defendant to establish a violation of probation in the case for which the defendant was on probation. This holding represents a significant change in Pennsylvania law and an important expansion of privacy rights for probationers and parolees.

Arter involved a case in which the defendant had just been released from prison on charges of illegally carrying a gun and receiving stolen property. Ten days after his release, his parole agent and a police officer were on patrol together in an area known for frequent drug activity. The parole agent saw Mr. Arter hanging out in the area and asked the police officer to stop the car. The parole agent then walked over to Mr. Arter and searched him without permission despite not seeing Mr. Arter actually engaged in any kind of suspicious or criminal activity. The agent recovered crack cocaine and other paraphernalia and arrested Mr. Arter.

Mr. Arter was then charged with a new case of possession with the intent to deliver. He moved to suppress the crack cocaine and other items in the new case. The trial court agreed with Mr. Arter's defense attorneys that Mr. Arter had been stopped and searched by the parole agent without reasonable suspicion, and the court therefore granted the motion to suppress, thereby effectively terminating the new case. 

Undeterred, the Commonwealth moved to introduce the illegally seized evidence against Mr. Arter in a subsequent violation of probation hearing. Mr. Arter's attorneys again objected to the admission of the evidence due to the unconstitutional search and seizure, but the probation court followed then-existing law and permitted the introduction of the evidence. The court revoked Mr. Arter's probation and sentenced him to prison. Mr. Arter then appealed, and the Supreme Court eventually reversed. The Supreme Court ruled that because the probation officer obtained the evidence in an unconstitutional search, the evidence could not be used against Mr. Arter at trial or in the violation of probation hearing. 

illegal probation searches now have consequences

Arter represents a significant change in Pennsylvania law search and seizure. Previously, illegally seized evidence could be used against a defendant who was on probation to establish a violation of that probation. For example, if you were on probation and the police illegally searched your house without a warrant and found a gun, the prosecution could use the gun as evidence of a violation of probation even if you won a motion to suppress on the new gun charges. Now, if the court in the new case grants a motion to suppress, the prosecution cannot use the suppressed evidence in the old probation case. This re-interpretation of the Pennsylvania Constitution, which does not apply in the federal system, precludes the Commonwealth from getting two bites of the apple because the Commonwealth can no longer prosecute someone in a new case, lose a motion to suppress, and then continue to seek punishment in an existing probation case.

DAISY KATES HEARINGS AND OTHER ISSUES

In addition to expanding the privacy rights of the accused and holding police and probation officers accountable for illegal searches, the Pennsylvania Supreme Court’s decision in Arter also raises a number of interesting questions. For example, under Pennsylvania caselaw which existed before this new decision, the Commonwealth could use the evidence in a new case to move to have a probationer found in violation of probation before the new case had been resolved. The defendant could not argue against the constitutionality of the search as a defense to the violation of probation charge. This type of hearing is commonly referred to as a Daisy Kates hearing.

Given the new decision, it is now debatable whether the Commonwealth may continue to move for these hearings. Even if the Commonwealth may move under Daisy Kates, it may be possible for the criminal defense lawyer to ask the probation judge to suppress the illegally obtained evidence in the violation of probation hearing instead of in the new case. If the probation judge finds that the evidence was in fact obtained as the result of an illegal search, it is doubtful that the Commonwealth would be able to continue prosecuting the new case. Therefore, Commonwealth v. Arter both protects the rights of Pennsylvania citizens to be free of illegal searches regardless of whether they are on probation or parole and raises a number of important issues which will likely be litigated in the coming month and years.

our probation lawyers can help

Zak T. Goldstein, Esq - Philadelphia Probation Lawyer

Despite the new decision, different standards probably still apply to the legality of probation and parole searches. In general, probation officers need only reasonable suspicion to search a probationer or parolee instead of the higher standard of probable cause and a search warrant. But even if you are on probation or parole, you still have rights. Arter re-establishes that law enforcement must follow the law when conducting a search. If you or someone you know are facing drug or gun charges, you need the advice of a criminal lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. Contact the probation lawyers of Goldstein Mehta LLC at 267-225-2545 for a complimentary 15-minute criminal defense strategy session.

Types of Narcotics Offenses and Potential Defenses

Narcotics Offenses

TYPES OF DRUG CHARGES IN PENNSYLVANIA

If you have been arrested on narcotics charges, you need an experienced criminal defense attorney immediately. We handle all types of narcotics cases - Simple Possession ("K&I), Possession with the Intent to Deliver ("PWID"), Criminal Use of a Communications Facility ("CUCF"), Possession of a Small Amount of Marijuana ("SAM"), cases involving confidential informants or sales to undercover narcotics officers, and more. Our talented attorneys have won motions to suppress the evidence and prevailed in even the toughest cases at preliminary hearing and trial. 

If you are caught with drugs, there are a number of potential charges you could face. First and foremost, you could be charged with Possession with the Intent to Deliver. In Pennsylvania, PWID is a felony regardless of the type of a substance sold. PWID requires the prosecutor to show not only that you had actual or constructive possession of a controlled substance, but also that you either sold or intended to sell the controlled substance to someone. Second, if the police did not observe drug sales, you could be charged with Simple Possession or Knowing and Intentional Possession, which requires the Commonwealth to show that you were in possession of a controlled substance. Third, if a cell phone was involved in a drug transaction, you could be charged with Criminal Use of a Communications Facility. 

DEFENSES TO DRUG CHARGES

It is critical that you speak with an experienced attorney as quickly as possible because there are a number of potential defenses to these charges. Our Philadelphia criminal trial lawyers have won numerous motions to suppress where the police conducted a search or made an arrest without reasonable suspicion or probable cause. If the police violated your rights, it may be possible to have the evidence suppressed and the charges dismissed. In PWID cases, we also work with the best expert witnesses in narcotics distribution to show the prosecutor, judge, or jury that drugs were not possessed with the intent to deliver. Through prompt and thorough investigation of a case, we may also be able to show that the narcotics belonged to someone else by finding witnesses or surveillance footage, or we may be able to show that the police just plain got the wrong guy. We have also been able to successfully negotiate for clients to participate in pre-trial diversionary programs which do not result in permanent convictions or other serious consequences. 

CONSEQUENCES FOR DRUG CONVICTIONS

Even misdemeanor narcotics charges are serious. Many cases carry significant jail time, and there can be countless life-changing collateral consequences to a conviction ranging from the loss of driving privileges to the loss of professional licenses, student financial aid, and employment. If you are charged with selling or possessing illegal drugs, you need an experienced lawyer who can investigate and evaluate your case, determine if your rights have been violated, and provide you with all of the options and a strong defense. You should not assume that you have to plead guilty just because the police found drugs on or near you. The Commonwealth has to prove that the search was legal and that the drugs were yours, and we have the experience to challenge them every step of the way. 

CALL A PHILADELPHIA DRUG LAWYER TODAY

If you or a loved one has been charged with a narcotics offense in Pennsylvania or New Jersey, call 267-225-2545 now for a free, confidential, and honest consultation.