PA Supreme Court: Arrest Warrant Does Not Allow Police to Enter Home

Criminal Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Romero. In Romero, the Court held that the police must obtain a search warrant prior to entering a private residence to arrest someone. The police may no longer enter a private home armed only with an arrest warrant. Instead, in order to avoid the risk that police will enter the wrong house, they must also obtain a search warrant from a magistrate after showing the magistrate that they have probable cause to believe the person to be arrested will be found in that location.

The Facts of Romero

In Romero, police were looking for a man named Earnest Moreno who had absconded from a halfway house in Philadelphia. Moreno was on state parole and left the facility. His parole agent obtained a warrant for his arrest and began attempting to locate him. The agent, assisted by Deputy United States Marshalls, attempted to execute the arrest warrant at an address in Philadelphia where they believed that he might live. The residence actually belonged to Moreno’s half-brother, Angel Romero, and his wife, Wendy Castro.

The agents did not find Moreno in the house. Instead, they found a marijuana grow operation. After finding the marijuana, the agent contacted the Philadelphia Police Department. Philadelphia Police obtained a search warrant and searched the house. They recovered marijuana, paraphernalia for growing marijuana, a gun, and identification which linked the defendants to the house.

Motions to Suppress

Romero and Castro moved to suppress all of the contraband found in their house. The trial court held a hearing on the motion, and Romero and the agent testified at the hearing. The agent testified that he had a number of different reasons for believing that he would find Moreno at the house. First, it was the address listed on Moreno’s most recent driver’s license, which had expired years prior. Second, the last time Moreno had been arrested, he gave the police that address. Third, he testified that someone from the halfway house told him that Moreno gave them that address when he entered the facility. Finally, he testified that his investigation revealed that Moreno’s family continued to live at the address in question, but he refused to reveal how he learned that information. He agreed that there were other possible addresses for Moreno, but based on those four factors, he believed the address that he searched to be the most likely location for finding Moreno.

He then described the search. He testified that he knocked on the door, announced his and the other officers’ presence, and then was permitted to enter the residence by someone inside. He could not recall whether the occupants actually said he could enter, but he testified that they did not say no. He did remember that the residents began to object to the search of the home, but the agents and marshals ignored those objections. The officers then found the marijuana grow operation.

Romero testified also. He testified that he had previously lived at the address in question with his wife and two children. He testified that Moreno was his half-brother, but he said that he did not associate with him because Moreno was addicted to heroin. He said that he had not spoken with Moreno in fifteen years, did not know where Moreno lived, did not know that Moreno was on parole, and did not know that Moreno had listed that address on his expired driver’s license. He said that Moreno did not receive mail at that address. He also contradicted the agent’s description of the search. He claimed that he heard a knock, his wife opened the door, and police entered without permission. They then began searching the house without speaking to anyone except to tell Romero to sit down after cursing at him.

The trial court granted the Motion to Suppress. The court found that authorities did not need a search warrant to enter the house. Instead, the trial court concluded that the agent simply had to show that his belief as to why Moreno lived at that location was reasonable. However, the trial court found that the belief was unreasonable. It concluded that the information possessed by the parole agent was simply too old to justify the belief that Moreno would be found at that address. Therefore, the court granted the motion and excluded the evidence of drugs, guns, and paraphernalia that the agents found while searching for Moreno. 

The Criminal Appeal 

The Superior Court reversed and remanded the case for trial. The Superior Court felt that “so long as the authorities had reason to believe that the subject of an arrest warrant . . . lived in and could be found in the apartment, they had a valid basis to search the apartment for the subject of the warrant.” Further, the Superior Court concluded that the agent’s belief was reasonable because Moreno had allegedly given the halfway house that address despite the agent’s refusal to testify from where that information came.

Petition for Allowance of Appeal

The defendants appealed to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court reversed the decision of the Superior Court. The Court recognized that under prior United States Supreme Court decisions, police officers may enter the home of the subject of an arrest warrant to effect an arrest, but they must obtain a valid search warrant before entering the home of a third party. Although this standard makes sense in theory, it poses real problems in practice. The problem with this standard is that the police often do not know whether the place that they want to search is the suspect’s home or the home of a third party. In some cases, police may know exactly where the subject of an arrest warrant lives. In others, they may have trouble finding out. Even where police have solid, recent information as to a suspect's whereabouts, the suspect may have recently moved or gone into hiding. That person may also be living with others who have not have done anything wrong and who have their own privacy interests. 

The Court therefore concluded that police must have probable cause to believe that the suspect will be found at the location. The Court then had to decide whether the probable cause requirement means that police must obtain a search warrant prior to entering the house or whether the probable cause could simply be challenged by a defendant after-the-fact if the police guessed wrong. The Court rejected the idea that police officers could determine for themselves whether they have probable cause that a defendant will be found at a particular location. Instead, the Court concluded that police must first obtain a search warrant, based on probable cause, from a magistrate or judge prior to entering a private residence.

This ruling does not prevent the police from arresting someone based on probable cause or an arrest warrant where the police encounter that person in public. They may also obtain consent to enter a private residence. However, in order to enter a residence without consent and search from someone, a police officer must first obtain an arrest warrant and a search warrant from a judge. This means that even where police know where the person lives, they cannot enter the house without a search warrant even if they have already obtained an arrest warrant.

Facing Criminal Charges or Planning an Appeal? We Can Help. 

Philadelphia Criminal Appeals Lawyers

If you are facing criminal charges or deciding whether to appeal a conviction or sentence, we can help. We have successfully defended thousands of clients in jurisdictions throughout Pennsylvania and New Jersey. We can also provide advice on the merits of pursuing an appeal or post-conviction relief act petition. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding criminal defense attorney today

Commonwealth Court Limits Government’s Ability to Seize Property under the Forfeiture Provision of the Controlled Substances Act

The Commonwealth Court of Pennsylvania has announced its decision in Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250. The Court’s decision dramatically restricts the government’s ability to seize, through civil forfeiture, property it claims was used to facilitate violations of the Controlled Substances Act (hereinafter “CSA”).

Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250 

On June 11, 2014, two individuals were driving the Lexus in question on Interstate 80 in Monroe County, Pennsylvania when it was pulled over for tailgating. Interstate 80 is a major highway that runs from California to New Jersey. The Lexus was not owned or registered to either of the two occupants inside the car. Both occupants of the car and its owner were from the state of New York. The car was also registered in New York.  

During the stop, the Pennsylvania State Trooper noticed numerous indicators of what he believed to be criminal activity. Specifically, he said that prayer cards, the driver’s tattoos, a strong smell of air fresheners, the vehicle traveling on a known drug route, the occupants’ criminal histories, and their inconsistent stories to the officer caused him to believe that the two individuals were engaged in narcotics trafficking. Because of these suspicions, the Officer requested permission to search the Lexus. The occupants consented to the search.

During the search of the Lexus, the officer recovered $301,360 in vacuum-sealed bags in a hidden compartment. No drugs or paraphernalia were recovered during the search. The police then seized the cash and the Lexus and the driver received a warning for tailgating. A week after the stop, the police performed an ion scan on the cash and the compartment where the money was found. This scan showed trace amounts of cocaine, heroin, THC, and procaine on the cash and trace amounts of heroin and THC in the compartment. However, there was no evidence that this money had ever been circulated in Pennsylvania, a fact that the Commonwealth would later concede.  

The Commonwealth then filed a forfeiture petition on the cash and Lexus. Their petition alleged the money and Lexus was used to “facilitate a violation of the Drug Act.”  The actual owner of the Lexus filed a response claiming lawful ownership of the cash and Lexus and requested that her property be returned to her.

A non-jury trial was held on April 6, 2016. Prior to the trial, the owner filed a Motion in Limine to preclude any evidence concerning the ion scan because the expert who conducted the ion scan only compared the levels of narcotics to Pennsylvania standards. This is significant because there was no evidence that showed the money had ever been circulated in Pennsylvania. For unknown reasons, the trial court did not decide the Motion in Limine.

At the trial, the Commonwealth called multiple witnesses including the Trooper who stopped the Lexus and Staff Sergeant Marshall who performed the ion tests on the cash and the compartment. The owner of the Lexus did not present any evidence. Following the trial, the court granted the Commonwealth’s petition and found that the Commonwealth established a substantial nexus between the property and criminal activity. Specifically, the trial court found 27 indicators of criminal activity, including the ion scan evidence, in making its determination that the cash and Lexus were used to facilitate a violation of the CSA. The trial court also found that the owner failed to rebut the presumption of forfeiture by proving the innocent owner defense. The owner then filed an appeal.

What is Forfeiture for a Violation of the CSA?

The logic behind Civil Forfeiture for violations of the CSA is to eliminate the economic incentives of drug trafficking. These forfeiture statutes allow the government to take property away when they prove that there is a nexus between the property and a violation of the CSA. The government does not need a criminal conviction to obtain the property. Worse, an acquittal does not prevent the government from seizing one’s property via civil forfeiture.

All sorts of property can be subject to forfeiture including: cars, money, homes, and other property that the government can link to drug trafficking. It is likely one has heard anecdotal stories about people whose homes were seized by the government under these forfeiture statutes because a family member used the home in some nefarious way. Courts are mindful of this and consequently are not in favor of forfeiture. Thus, the courts will strictly construe the forfeiture statutes. Nonetheless, a person who was not engaged in drug trafficking can lose their home because of the actions of a family member or someone else living in their home. If the government files a forfeiture petition against you it is imperative you speak to an attorney immediately because you can lose your property, including your home.   

As a preliminary matter, the Pennsylvania General Assembly repealed and replaced the provisions of the Forfeiture Act that were used in this case. Nonetheless, this case will still be relevant in future litigation. The current and relevant forfeiture laws concerning the CSA are codified under 42 Pa. C.S.A. § 5802, § 5803, and § 5805. § 5805 lays out the procedure that the Commonwealth must follow to seize property that is allegedly connected to a violation of the CSA. § 5802 is specifically titled “Controlled Substances Forfeiture,” however § 5803(b)(4) also addresses forfeiture when there is probable cause to believe that the property has been used or is intended to be used in violation of the CSA.  

At the trial, the Commonwealth does not have to prove beyond a reasonable doubt that the property in question was used or intended to be used in violation of the CSA. Rather, the standard is the preponderance of the evidence standard which is the lowest standard available. In essence, the Commonwealth must show that it is more likely than not that a nexus exists between the property and the criminal activity.

If the Commonwealth meets its initial burden, the burden then shifts to the claimant to prove that 1) he/she is the owner of the property, 2) the property was acquired lawfully, and 3) the property was not used/or intended to be used unlawfully. The claimant can also allege that they are entitled to the innocent owner defense which requires that the owner lacked either knowledge or consent to the use of the property to facilitate a violation of the CSA.

The Commonwealth Court Demands More Convincing Evidence to Seize One’s Property Under CSA Forfeiture

In Commonwealth v. $301,360.00 U.S. Currency and one 2011 Lexus, RX 350, Vin# 2T2BK1BA48C081250, the Commonwealth Court found that the evidence in the case was not sufficient to form a substantial nexus to a violation of the CSA. First, the Court attacked the ion scan evidence. The Court focused on the fact that the Commonwealth failed to show that the money was ever circulated in Pennsylvania. This is significant because money can have traces of narcotics on it through casual contact. However, the levels of these narcotics vary depending on the geographic area of where the money was circulated. In other words, the levels of narcotics found on currency in Pennsylvania are different than those found in New York.

 Pennsylvania courts have made clear that ion scan evidence is irrelevant if it cannot be determined where the money was circulated. Because the Commonwealth could not establish that the money was ever circulated in Pennsylvania and its expert only used casual contact levels for Pennsylvania, and not other states (i.e. New York) the Commonwealth Court held that this evidence was not relevant and thus could not be used to establish whether there was a substantial nexus between the property and violations of the CSA.

Next, the Court focused on the fact that no drugs or drug paraphernalia were recovered in the Lexus and no drug charges were filed against either of the occupants. This omission, the Commonwealth Court stated, makes establishing a nexus to illegal activity “difficult.” Further, the fact that the occupants gave inconsistent stories is not indicative of illegal activity because they were under no obligation to speak to the officer. Additionally, the Commonwealth offered no support as to why tattoos and prayer cards are indicative of criminal activity. Finally, Pennsylvania court precedents hold that a large amount of cash that is bundled and driving on a known drug highway does not establish the requisite nexus for forfeiture. As such, the Commonwealth Court found that the Commonwealth did not meet its burden and reversed the trial court.

Facing Criminal Charges or Forfeiture Proceedings? We Can Help. 

Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta

If the government is attempting to seize your property using a civil or criminal forfeiture statute, you need an attorney who has experience with this complicated area of law. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

PA Superior Court: Drug Overdose Response Immunity Statute Applies to Person Overdosing

Criminal Lawyer Zak Goldstein

The Superior Court has just decided the case of Commonwealth v. Lewis, holding that Pennsylvania’s Drug Overdose Response Immunity statute provides immunity for both the reporter of a drug overdose and the victim of a drug overdose, so long as the conditions of the statute are met. It also applies even where the victim of the overdose makes the call for help themselves and there is no separate reporter. Pennsylvania’s drug overdose immunity statute is very limited and does not provide immunity against serious felony charges, but this is a good opinion which encourages people who may be in the middle of a drug overdose to seek help instead of worrying about whether they will be arrested for minor drug offenses. 

Commonwealth v. Lewis

In Lewis, the defendant called 911 from her hotel room to report that she had overdosed on prescription pills. Police responded and took her to the hospital. While assisting her, police saw more pills and paraphernalia for smoking marijuana in her room. The police questioned her about the drugs, and she admitted that they belonged to her and that she smokes marijuana. Lewis received treatment at the hospital and recovered. Prosecutors, of course, charged her with possession of drug paraphernalia.

Prior to trial, Lewis moved to dismiss the charges, claiming immunity to prosecution under the Drug Overdose Response Immunity statute. The trial court denied the motion. The trial court ruled that the act did not apply to her case because 1) Lewis did not actually need immediate medical attention, and 2) the Act did not apply to self-reported overdose victims. The court ultimately convicted Lewis of drug paraphernalia in a bench trial and sentenced her to three months’ probation. Lewis appealed, arguing that the court should have granted her motion to dismiss because she was immune to prosecution under the act.

What is the Drug Overdose Response Immunity Act?

Pennsylvania has a very limited statute which seeks to encourage people who observe someone else in the middle of a drug overdose to call for help instead of worrying about criminal prosecution. In order to further this goal, it provides immunity to prosecution for minor drug offenses such as the knowing and intentional possession of a controlled substance for personal use and possession of drug paraphernalia. It also provides immunity against violations of probation and parole. Notably, it does not provide immunity to serious offenses. For example, the statute does not provide immunity to Possession with the Intent to Deliver charges or the extremely serious and increasingly-prosecuted homicide charges of Drug Delivery Resulting in Death.

Can I be prosecuted if I call for help for a friend who is overdosing?

In order to qualify for immunity, the defendant must meet three criteria:

1. the person reported, in good faith, a drug overdose event to a law enforcement officer, the 911 system, a campus security officer or emergency services personnel and the report was made on the reasonable belief that another person was in need of immediate medical attention and was necessary to prevent death or serious bodily injury due to a drug overdose;

2. the person provided his own name and location and cooperated with the law enforcement officer, 911 system, campus security officer or emergency services personnel; and

3. the person remained with the person needing immediate medical attention until a law enforcement officer, a campus security officer or emergency services personnel arrived.

The statute further addressees the victim of the overdose. It provides:

Persons experiencing drug overdose events may not be charged and shall be immune from prosecution as provided in subsection (b) if a person who transported or reported and remained with them may not be charged and is entitled to immunity under this section.

The statute has a good purpose, but it does not protect you if you call in an overdose and have potential criminal liability for drug distribution or drug delivery resulting in death.

The Statute Applies to People Who Call For Help with Their Own Overdose

The issue in this case arose because the plain language of the statute seems to imply that a second person has called in the drug overdose on behalf of the victim. It does not directly address what should happen when there is no second person and it is the victim themselves making the phone call for help.

The Superior Court, seeking to encourage more people to seek help instead of worrying about whether they will face minor drug possession charges, held that the statute did protect the defendant in this case. The Court noticed that the Act does implicitly condition the grant of immunity on the presence of two parties: a reporter and a victim. However, the Court found that the implicit requirement was unintended. The Act does not explicitly provide immunity for self-reporters, but excluding self-reporters from the immunity granted by the Act would result in an absurd result. Under the trial court’s reasoning, Lewis would not be immune because she called 911 herself. Had she called a neighbor and asked a neighbor to call 911, Lewis would have been immune had the neighbor done so and otherwise complied with the requirements of the statute.

The Superior Court recognized that the Legislature likely did not intend this absurd result, and therefore the Act should be interpreted to apply in situations such as this where the victim and the reporter were the same person. The Court also found that the trial court was too strict in interpreting the requirement that the person actually needed immediate medical attention. Instead, the Court ruled that the person must only reasonably believe that they need immediate medical attention to avoid serious bodily injury or death. Here, there was no evidence that Lewis’s belief was unreasonable. Accordingly, the Act applied and prevented her prosecution for drug paraphernalia charges. The Superior Court reversed the conviction. 

FACING CRIMINAL CHARGES? WE CAN HELP.

Philadelphia Criminal Lawyers

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of cases in state and federal courts throughout Pennsylvania and New Jersey. We offer a complimentary 15-minute criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation by law enforcement. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

Expert Witnesses in Illegal Drug Distribution Cases

Philadelphia Criminal Defense Lawyer Zak Goldstein

Possession with the Intent to Deliver of a controlled substance is a serious charge in Pennsylvania and New Jersey. It is always graded as a felony (even when the controlled substance in question is marijuana), and although Pennsylvania no longer has mandatory minimum sentences for drug offenses, the sentencing guidelines often call for jail time upon conviction depending on the defendant’s criminal record and the weight of the drugs involved. Fortunately, there are often defenses to Possession with the Intent to Deliver charges. 

Types of Drug Distribution Cases in Philadelphia

There are typically two common types of Possession with the Intent to Deliver cases in Philadelphia court. In perhaps the most common type, detectives with one of the city’s specialized narcotics units will set up a surveillance operation or use confidential informants in order to try to catch people in the act of buying and selling drugs. In the second type, the police will make a pedestrian stop or traffic stop and find that the person stopped has drugs or drug paraphernalia in their pockets or in the car. If the person stopped appears to have a lot of drugs, a substantial amount of money without a good explanation, or paraphernalia which suggests that the drugs are going to be packaged for sale, the prosecution will typically charge Possession with the Intent to Deliver (“PWID”) and use a police expert witness to try to convince the court that the defendant was planning on selling the drugs.

Expert Witnesses in Drug Cases

In Philadelphia court, the prosecution’s expert is virtually never an independent, unbiased witness. Instead, the prosecution’s expert is almost always a salaried, on-duty police officer who testifies only for the government in drug cases as their full-time job. Despite the obvious bias in favor of the Commonwealth, most judges will accept police officer expert testimony in these cases as to whether the drugs would have been intended for sale. The officer will often testify to a handful of generic reasons why the defendant must have been planning on selling the drugs. Some of the reasons could include the presence of money as they will testify that dealers often have large quantities of cash, that the drugs were divided into multiple packets that could be easily sold, or that the defendant also possessed scales or cutting instruments which could be used to divide up a larger quantity of drugs into smaller quantities for distribution.  

Challenging Police Expert Testimony in Drug Possession Cases

It is critically important to fight back against this biased testimony when defending against drug delivery charges. This police “expert” testimony can be refuted in a number of ways. First, in most drug cases where the police did not observe the actual sale of narcotics, our criminal defense attorneys can have the discovery and case file reviewed by an independent expert on drug packaging, distribution, and sale. The expert will review the file for whether the drugs and paraphernalia could also be consistent with personal use. This could include providing drug treatment records or employment documentation to the expert so that the expert can see that the defendant has the legitimate financial means to purchase a larger quantity of drugs and a history of drug use. In many cases, if there is an explanation for why the defendant had a significant quantity of money, it could go a long way towards dispelling allegations that the money came from drug activity. If the expert can opine that the circumstances of the drug possession were also consistent with personal use, then we can retain the expert to testify at trial before a judge and jury and rebut the testimony of the Government’s police officers. This could have the effect of reducing the felony charge, which often carries jail time, to a misdemeanor charge which could carry only probation or no further penalty depending on the controlled substance. Second, our defense lawyers can also challenge the prosecution’s expert witnesses through cross examination. We have successfully defended hundreds of these drug possession cases involving prosecution expert witnesses, and our attorneys are highly experienced in cross examining the Commonwealth’s police experts.

When Is Expert Testimony Permitted in a Pennsylvania Criminal Case?

Pennsylvania Rule of Evidence 702 permits both the prosecution and the defense to introduce expert testimony under certain circumstances. The rule provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

 (a)  the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

 (b)  the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

 (c)  the expert’s methodology is generally accepted in the relevant field.

The rule is very broad and permits a wide variety of expert testimony in criminal cases, and it is well-settled that both the prosecution and defense may present expert testimony in drug cases. There are, however, some limits to the types of expert opinion that a court will allow. Typically, an expert may not testify that the defendant in question specifically intended or did not intend to distribute the drugs that he or she possessed. However, the expert may opine that the circumstances are consistent with personal use or consistent with the intent to deliver because this testimony is helpful for a judge or jury to understand all of the circumstances and make the ultimate decision as to whether the prosecution has met its burden to prove Possession with the Intent to Deliver beyond a reasonable doubt. Likewise, in cases involving observed drug sales, the police may not provide their opinion that what they observed was actually the sale of drugs. Instead, they may only describe what they saw and allow the judge or jury to decide whether those observations were drug sales.

Philadelphia Criminal Lawyers for Drug Possession Charges in PA and NJ

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are charged with Possession with the Intent to Deliver or drug trafficking based on the quantity of the drugs involved or other paraphernalia that the police claim to have recovered, it is important to retain an experienced criminal defense attorney who will explore all possible defenses. Defenses to drug charges often include motions to suppress, constructive possession, and challenging the Commonwealth’s assertion that the defendant intended to sell the drugs. If you are facing criminal charges, call 267-225-2545 to speak with an experienced and understanding defense attorney today.