Philadelphia Criminal Defense Blog

Zak Goldstein 5/14/18 Zak Goldstein 5/14/18

US Supreme Court: An Unauthorized Rental Car Driver Can Probably Litigate a Motion to Suppress

Philadelphia Criminal Lawyer Zak T. Goldstein, Esq.

The United States Supreme Court has decided the case of Byrd v. United States, holding that the defendant probably held a reasonable expectation of privacy in the rental car he was driving despite the fact that the car had been rented by his girlfriend and she had not listed him as an authorized driver in the rental agreement.

The Facts of Byrd

Byrd dealt with a traffic stop in Pennsylvania. Pennsylvania State Police pulled over a rental car driven by the defendant. The defendant was the only person in the car. During the course of the traffic stop, the troopers learned that the car was a rental and that the defendant was not listed on the rental agreement as an authorized driver. The troopers told the defendant that they were going to search the car and that they did not need his permission because he was not an authorized driver. They then searched the car, including the trunk. They found body armor and 49 bricks of heroin.

When Byrd’s girlfriend rented the car, she signed a rental agreement. The agreement specifically listed the limited number of people people who could drive the car. It also stated:

Permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement. This may result in any and all coverage otherwise provided by the rental agreement being void and my being fully responsible for all loss or damage, including liability to third parties.

Byrd’s girlfriend did not list him as an authorized driver. Therefore, they both violated the rental agreement when he drove the car. Of course, there is a difference between technically violating a rental agreement and stealing a car.

The Federal Criminal Case Against Byrd

Due to the significant quantity of drugs recovered by police, federal prosecutors in the Middle District of Pennsylvania assumed the case and prosecuted Mr. Byrd for distribution and possession of heroin with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) as well as possession of body armor by a prohibited person in violation of 18 U.S.C. Sec. 931(a)(1). Byrd moved to suppress the evidence, arguing that police had no basis for searching the car and that because his girlfriend had rented the car and loaned it to him, he had a reasonable expectation of privacy in the car despite the fact that he was not part of the rental agreement. The trial court denied the Motion to Suppress, and the Third Circuit Court of Appeals affirmed. Both found that he could not challenge the search because he had no reasonable expectation of privacy in the car due to the fact that he was not on the rental agreement.

The Criminal Appeal

The United States Supreme Court granted certiorari to address the issue of whether a driver has a reasonable expectation of privacy in a rental car even when the driver is not authorized to drive the vehicle by the rental agreement. The Court held that, as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list that person as an authorized driver. The Court therefore remanded the case for the trial court to determine whether Byrd was in fact in otherwise lawful possession and control of the rental car and whether the police had probable cause to search the vehicle.

The Supreme Court's Analysis

The Court’s analysis focused on whether Byrd had a reasonable expectation of privacy in the car. In order to challenge a potentially unconstitutional search in federal court, the person challenging the search must have a reasonable expectation of privacy in the place that the police searched. For example, a person is going to have a reasonable expectation of privacy in their own home or the pockets of their pants and therefore would be able to challenge a search of those places. But a person generally does not have a reasonable expectation of privacy in a neighbor’s home. This means that if you store your drugs in your neighbor’s house, the police could use those drugs against you even if they found them by searching your neighbor’s house illegally without a search warrant. Thus, the case hinged on whether Byrd had the ability to challenge the search or whether he had no reasonable expectation of privacy because he was not authorized to drive the car. His girlfriend, as the person who rented the car, clearly would have had a reasonable expectation of privacy while driving the car if police sought to introduce evidence of a search against her.

The Court noted that one who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. Ownership of property, however, is not the only factor in determining whether someone has a reasonable expectation of privacy. Although ownership is not necessarily required, mere presence in the area that was searched also may not be enough to provide a reasonable expectation of privacy. Instead, there typically must be some kind of property right or right to exclude other people from the property. A car thief, for example, would not have any property rights in a car or right to exclude other people from the car. Therefore, a car thief would not be able to challenge the search of the car that he or she stole.

The Court concluded that there is a difference between violating an important provision in a car rental agreement and potentially increasing one’s exposure to civil liability in the event of an accident and actually stealing a car. A car thief has no reasonable expectation of privacy in a stolen car, but someone who is not on the authorized driver’s list does not automatically stand in the same position as a car thief.

Accordingly, the Court remanded the case for further fact-finding by the trial court. The Court ordered the trial court to consider whether Byrd had committed a criminal offense in having his girlfriend rent the car for him knowing that he could not rent it such that he was no better than a car thief. If so, then the trial court could be justified in finding no reasonable expectation of privacy because Byrd would essentially have stolen the car. The Court also permitted the trial court to determine whether State Police had probable cause to search the vehicle. If they did, then the question of whether Byrd had a reasonable expectation of privacy would be irrelevant because federal law permits police to search a vehicle without a search warrant as long as they have probable cause.

Byrd was a unanimous decision of the United States Supreme Court. It is an important decision because of its common-sense approach. It seems obvious that someone should not lose all of their rights to be free of an illegal search and seizure solely because they have not properly followed the requirements of a car rental agreement. Instead, courts should use common sense and look at whether the person who was subjected to the search would have reasonably expected to have privacy in the vehicle and whether society would view that expectation as reasonable. Here, unless Byrd was the equivalent of a car thief, he should not be subjected to an illegal search by the police regardless of the technicalities of a complicated car rental agreement which contained all sorts of other provisions.

Facing criminal charges? We can help.

If you are facing criminal charges or considering an appeal, we can help. We are experienced and understanding Philadelphia criminal defense lawyers who have successfully defended thousands of cases. We have the experience, skill, and knowledge of the law to fight for the best possible outcome for you. We offer a free 15-minute criminal defense strategy session to each potential client. Call or text 267-225-2545 to speak with an award-winning criminal defense attorney today.

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.

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