Philadelphia Criminal Defense Blog

Zak Goldstein 5/2/18 Zak Goldstein 5/2/18

PA Superior Court: Drug Overdose Response Act Defense Cannot Be Waived

An en banc panel of the Superior Court has just decided the case of Commonwealth v. Markun. In Markun, the Court reversed the prior decision of a three-panel judge and found that the immunity to minor drug possession charges provided to an overdose victim by the Drug Overdose Response Act cannot be waived by an attorney’s failure to raise the defense in pre-trial motions or at trial.

The Facts of the Case

The facts of Markun are straight-forward. First responders found the defendant unconscious in a Delaware County Motel 6. Housekeeping personnel had called 911 and reported the medical emergency. She was treated by EMTs and transported to a nearby hospital. Police later arrested her and charged her with misdemeanor knowing and intentional possession of a controlled substance. In this case, the controlled substance was heroin.

The defendant filed a motion to suppress statements that she had made to the investigating police officer. After the trial court denied the motion to suppress, the defendant went to trial in the Delaware County Court of Common Pleas. She was convicted and sentenced to probation. She appealed to the Pennsylvania Superior Court.

The Criminal Appeal

Although the defendant never argued that she should have been immune to prosecution under the Drug Overdose Response Act either in pre-trial motions or at trial, her appellate attorneys raised this issue on appeal. Initially, the Superior Court denied the appeal. Her attorneys, however, filed an Application for Re-Argument En Banc, meaning they asked the entire court to hear the appeal and overrule the decision of the initial three-judge panel. The court agreed to hear the appeal en banc and overturned the defendant’s conviction.

The Court's Reasoning

On appeal, the court ruled that the defenses provided by the Drug Overdose Response Act cannot be waived and can be raised for the first time in an appeal. The Act provides that a person may not be charged and shall be immune from prosecution for many misdemeanor drug possession and paraphernalia offenses if the person can show that they reported an overdose by calling 911, provided their name, and remained with the person who needed immediate medical attention until emergency services personnel arrived. In a recent opinion, the Superior Court found that the Act applies not only to the person who calls 911, but also the victim of an overdose where that victim calls 911 on their own behalf.

The Commonwealth argued that the defendant waived the immunity from prosecution for the misdemeanor drug charge provided by the Act by not raising it in the trial court. The Superior Court, however, rejected this argument. The court found that the immunity provided by the act is similar to subject matter jurisdiction or soverign immunity, and those types of immunity defenses cannot be waived and can be raised for the first time in an appeal. Because the trial court never had jurisdiction to hear the case, the defendant could not waive the defense by failing to raise it previously. The court reasoned that the purpose of the act is to prevent people who discover an overdose victim, who may also be drug users and afraid of incurring criminal liability themselves, from hesitating when deciding whether to call the police out of fear of criminal charges. In order to avoid that possibility, the court found that the Act’s defenses should not be waivable. Accordingly, the Superior Court reversed the conviction.

Limitations to the Drug Overdose Response Act

The Superior Court’s decision properly encourages drug users to get help for themselves or their friends if someone experiences an overdose. At the same time, there are still major limitations to the Act’s immunity provisions. The Act 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. Accordingly, someone who gave or sold the drugs to the person who overdosed can still be prosecuted for PWID or homicide.

Facing Criminal Charges? We Can Help.

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.

Zak Goldstein 5/1/18 Zak Goldstein 5/1/18

Recorded Prison Visits and Phone Calls Are Admissible as Evidence Against You in PA

Prison phone calls and recorded visits can usually be used against you in Pennsylvania. If you are a defendant facing criminal charges and you say something incriminating in a recorded phone call, that incriminating statement can often be used as evidence of guilt in court. This article explains when a telephone or other audio recording is admissible as evidence in court.

Are Prison Tapes Admissible at Trial?

The Pennsylvania Superior Court has decided the case of Commonwealth v. Byrd. In Byrd, the Superior Court re-affirmed the long-standing rule that prison tapes and recorded prison visits may be used against a defendant at trial. This means that if a defendant says something incriminating in a recorded phone call, that incriminating statement can be used against the defendant as a confession as long as the defendant was on notice that the call could be recorded.

The Facts of Byrd

Byrd involved gun charges and Possession With the Intent to Deliver charges. Police officers testified at a motion to suppress that they received a phone call for a specific address in McKeesport, PA that a female received threatening phone calls from a suspect who was parked outside of her residence in a grey, F-150 truck. Police arrived at the house, spoke with the woman who had called 911, and learned that a man known to her as “Reek” had threatened to kill her, had a gun, and was parked outside the house in the truck. She pointed at the grey truck.

The officer then went to confront the man in the truck, who turned out to be the defendant. The officer attempted to stop the defendant, and the defendant rolled the window down 2-3 inches. The officer could immediately smell a strong odor of marijuana through the window. The officer also testified that the defendant was acting in a nervous manner, his hands were shaking, and he was breathing rapidly. The officer called for back-up.

When back-up arrived, the officer ordered the defendant to get out of the truck. The defendant refused, so officers pulled him out. The defendant resisted, pulled away, and eventually began to run. Officers caught him. After placing him into custody, they returned to the truck and looked in the window. They observed a gun magazine under a piece of cloth on the front seat of the truck. They then searched the car. When an officer lifted the cloth, he found a .40 caliber handgun. Police also found other drugs and drug paraphernalia in the car which suggested that the defendant may have been likely to sell those drugs.

After police arrested the defendant, he made a number of incriminating statements in recorded inmate visits while awaiting trial in custody at the Allegheny County jail.

The Motion to Suppress

Prosecutors charged the defendant with persons not to possess firearms, carrying a firearm without a license, three counts of possession with the intent to deliver, and three counts of possession with a controlled substance. The defendant moved to suppress the gun and drugs. He also subsequently moved to suppress statements recorded at the Allegheny County jail after prosecutors notified his attorney that they planned to use the recordings at trial. Prison authorities had recorded conversations in which the defendant made incriminating statements to visitors while in custody. Thus, he moved to suppress the statements, arguing that the prison violated Pennsylvania’s Wiretap Act when it made the recordings. The trial court granted the motion with respect to the priosn tapes and some of the drugs.

The Criminal Appeal

The Commonwealth appealed the trial court's order. The Pennsylvania Superior Court reversed the trial court’s decision to suppress both the physical evidence and the recorded statements. With respect to the physical evidence, the Court concluded that because officers had smelled marijuana coming from the vehicle and because the defendant seemed nervous and resisted arrest, the officers had probable cause to search the entire vehicle for contraband pursuant to the Pennsylvania Supreme Court’s decision in Commonwealth v. Gary. As a general rule, police do not need a search warrant for a car because cars may be easily moved. Instead, police must establish at a suppression hearing only that they had probable cause to search a vehicle. The odor of marijuana, coupled with the defendant’s behavior, gave the officers the probable cause necessary to search the car.

The Admissibility of Prison Phone Calls in Pennsylvania

The Superior Court also found that the prison phone calls were admissible in evidence against the defendant. The Court noted that Pennsylvania’s Wiretap Act makes Pennsylvania a two-party consent state. This means that a person may not make secret audio recordings of another person in Pennsylvania. It can actually be a felony to do so, and a violation of the Act typically leads to the suppression of the evidence. Under the Wiretap Act, both parties to a call must consent to its recording, or they must at least be on notice of a potential recording and implicitly consent to the recording by continuing to make a call, anyway.

Although the trial court reasoned that the defendant had not been sufficiently warned that the phone calls would be recorded, the Superior Court rejected this analysis. The testimony at the motions hearing was that inmate visitation at the Allegheny County Jail is conducted over a closed-circuit system using telephone receivers. Guards take a visitor to the jail to a windowed cubicle with chairs and a telephone receiver. The inmate is escorted to a room on the other side of the visitor window with another telephone receiver. The inmate picks up the receiver, enters his or her jail ID number, and then the visitor picks up the receiver. Before the parties speak through the phone, a recording stating that the visit “may be monitored or recorded” is played. However, there is nothing in the inmate handbook which indicates that the visits are recorded and there was no testimony regarding whether [Byrd] heard the recording before each visit. The Commonwealth called the defendant’s visitor, however, to testify that she did hear the warning before the conversations. Additionally, in some of the phone calls, the defendant attempted to whisper and suggested that he did not care if he was being recorded, suggesting that in addition to hearing the warning, he did know that he was being recorded.

Prison Tapes Are Admissible

The Superior Court rejected the defendant’s argument that the evidence did not establish that he actually heard the warning or that the warning that he “may be” recorded instead of “would be” recorded somehow rendered the recording illegal. The Court concluded that the defendant was properly warned that he could be recorded, knew that he was being recorded based on the things that he said, and that he implicitly consented to the recordings by continuing with the visits, anyway. Thus, the Court found that the evidence was not obtained in violation of the Wiretap Act and could be used at trial.

The bottom line is that prison phone calls, and in many cases in-person prison visits, are recorded. This is particularly true in Philadelphia where all prison phone calls are recorded and a warning is played before each call. As long as the prison provides some sort of notice that the phone calls could be recorded, those conversations are admissible in evidence against a criminal defendant if the defendant says something incriminating. They are often even more damaging to a case than a detective or police officer claiming that a defendant confessed because in many cases, the jury will actually be able to listen to the recordings. Many prosecutors throughout the Commonwealth will listen to these recordings prior to trial and see if the defendant confessed at any point during a visit or phone call, and if the defendant did, it could seriously undermine the defense at trial. There is very little that can be done to mitigate the potential damage caused by incriminating statements once they are made. Even statements which seem harmless can often be used against a defendant if the prosecutor can suggest that the defendant was speaking in code or that the statement meant something else. The Superior Court’s opinion re-affirms that prison inmates have very few privacy rights, and if they make recorded phone calls, law enforcement may listen in and use those phone calls at trial.

Experienced and Understanding Philadelphia Criminal Defense 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

Zak Goldstein 4/27/18 Zak Goldstein 4/27/18

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

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.

Zak Goldstein 4/7/18 Zak Goldstein 4/7/18

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.