Philadelphia Criminal Defense Blog

Zak Goldstein 10/1/19 Zak Goldstein 10/1/19

PA Supreme Court: Search Warrant Allows Police to Search Entire Apartment Even if Suspect Has Roommates

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Turpin, holding that having a roommate does not convert a single resident unit into a multi-resident unit for purposes of the Fourth Amendment. This decision is significant because so many people live with a roommate. Nonetheless, if the police have probable cause that one person is engaged in illicit activity in the residence, Turpin allows the police to search the entire residence even if the police know that the suspect has roommates who have their own rooms.

Commonwealth v. Turpin

On December 4, 2014, Detective Mellot of the Cumberland County Drug Task Force began investigating Mr. Irvin, the defendant’s roommate based on information received from a confidential informant regarding the sale of heroin. Detective Mellot contacted Mr. Irvin’s parole officer who informed him that he was living in Mechanicsburg, Pa. Based on this information, Detective Mellot conducted surveillance of the residence and observed an unusually high number of individuals making short visits there.

In mid-February 2016, Detective Mellot interviewed a second confidential informant who stated he purchased heroin from Mr. Irvin on a regular basis and had bought heroin from the defendant’s and Mr. Irvin’s residence. As this information had been corroborated by his surveillance, Detective Mellott arranged for the confidential informant to conduct a controlled buy from Mr. Irvin. While the confidential informant was arranging to meet Mr. Irvin at a nearby business, Detective Mellott surveilled the residence and observed multiple individuals enter and then quickly exit, which Detective Mellott believed was indicative of drug dealing. Detective Mellott then observed two people exit the residence and enter a black Cadillac that Mr. Irvin was known to drive. Detective Temple, who was surveilling the location of the controlled buy, observed the same black Cadillac at the buy location. A male and female then exited the Cadillac and then the male conducted a hand-to-hand transaction with an unknown individual. Afterwards, the male instructed the confidential informant to enter the business.

At this time, Detective Colare entered the business with the confidential informant and positively identified Mr. Irvin as the male with whom the confidential informant interacted. The detectives observed Mr. Irvin drive back to the residence and enter the property. The confidential informant then provided Detective Mellott with ten bags of heroin, stamped “Blue Magic,” that were purchased from Mr. Irvin. Based on the above information, Detective Mellot obtained a search warrant for Mr. Irvin and the defendant’s residence.

Police executed the search warrant in February 2015. The defendant was placed in a vehicle by Sergeant Curtis of the Mechanicsburg Police Department and the two discussed the living arrangements of the residence. The defendant told Sergeant Curtis that he and Mr. Irvin both lived there and each occupied one of the two bedrooms. Thereafter, Sergeant Curtis brought the defendant back into the house so he could get his shoes from his bedroom. There was no evidence that the defendant’s bedroom ever had a padlock on the door, and there was not a separate room number or mailbox on the outside of the bedroom door which would make it seem like an individual apartment.

The officers then searched the entire house, including the defendant’s bedroom. Recovered from his room were a firearm, ammunition, six bags of heroin including one bag stamped “Blue Magic,” a bag of marijuana, and $902 in cash. The police also recovered 37 bags of heroin, some stamped “Blue Magic,” and a case of $1,000 from Mr. Irvin’s room as well as 200 bags of heroin from the living room. The police then returned to the house on March 10, 2015 and recovered 80 bags of heroin from the second-floor bathroom, which was adjacent to the defendant’s bedroom. Based on the above, the defendant was arrested and charged with possession of a controlled substance, and one count each of conspiracy to commit possession with the intent to deliver and receiving stolen property.

The Defendant’s Motion to Suppress

The defendant filed a motion to suppress claiming that the search warrant was overbroad because it did not limit the specific areas to be searched to those under the control of Mr. Irvin and the warrant was improperly executed because the police were made aware of its overbroad nature from the defendant’s conversations with Sergeant Curtis. At the suppression hearing, the above facts were put on the record. The defendant also testified at the hearing. He testified that he and Mr. Irvin occupied separated bedrooms at the residence, he would shut his bedroom door when he was not home; Mr. Irvin and he occupied separate bedrooms at the residence; he would shut his bedroom door when he was not home; and that Mr. Irvin was not permitted to enter his bedroom without permission.

The trial court denied the defendant’s motion to suppress. The trial court held that the warrant was not overbroad and that a search warrant to a residence “need not specify each and every room of a residence to be searched.” Further, the trial court held that the search warrant was not improperly executed. After the denial, the defendant proceeded to a jury trial where he was convicted of all charges. The court then subsequently sentenced him to an aggregate term of one year less one day to two years less two days of county imprisonment to be followed by three years of probation. The defendant then filed a timely appeal to the Pennsylvania Superior Court. The Superior Court denied the defendant’s appeal. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which was granted.

Does a Search Warrant Have to Be Specific?

Yes. The Fourth Amendment prohibits the issuance of any search warrant except one that is specific and particular to the place to be searched and the persons or things to be seized. As such, the police are limited to searching in those areas where the suspected contraband could be found. Usually, the police are searching for guns and drugs and therefore the police have a broad scope of places that these items could be found. However, let’s say hypothetically that the police have a search warrant for a missing tuba. Obviously, tubas are very large and heavy and probably would not fit in a shoebox. So, in this hypothetical, if the police were searching only for a tuba and they looked into a shoebox and found contraband, then the defendant could have a valid argument at suppressing this contraband because the police went beyond the scope of the search warrant.

I Live in an Apartment Building. If the Police Get a Search Warrant for My Neighbor’s Apartment, Can They Search Mine Too?

No. In prior decisions, the Pennsylvania appellate courts have been very clear that a search warrant has to be particularized to the residence that is being searched. To give an example of this, let’s assume that a defendant lives at 123 Broad Street and that it is a multi-tenant building. If the police were to get a search warrant for only 123 Broad Street and they search every apartment in 123 Broad Street and the police find contraband in the defendant’s apartment, then he will have a very good argument for suppressing that contraband because the search warrant was not specific enough for the defendant’s house. However, this was not the issue in the instant case. In the instant case, the residence in question was a single living unit, not a multi-tenant unit as stated in the above hypothetical.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In its opinion, the Pennsylvania Supreme Court adopted the federal rule which allows the police to search the entire residence even if the target of the search warrant has roommates. The Court went on to say that a roommate can obtain relief if it is shown that his particular room was a separate and independent unit. It is not enough that the roommates are prohibited from entering the other’s room without permission. As such, the defendant will not be entitled to relief and therefore he will not get a new trial.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 9/25/19 Zak Goldstein 9/25/19

What is the penalty for getting arrested for drugs or guns while on state parole in Pennsylvania?

Pennsylvania State Parole Violations

The impact of new criminal charges for a person who is on state parole in Pennsylvania can be very confusing for the defendant and his or her loved ones. In general, a new arrest while under state parole is going to result in at least some amount of jail time because the parole board almost always lodges a parole detainer following a new arrest for a misdemeanor or felony criminal charge. Additionally, once the parole board lodges the detainer, it is usually not possible to get the detainer lifted because the judge who sentenced the defendant to prison time does not have the authority to have a state detainer lifted. Instead, only the parole board can lift the detainer, and the board usually does not do this unless the defendant has served the maximum sentence (“maxed out”).

The parole board can impose severe consequences for a conviction for a new offense. This can include both taking away the parolee’s “street time,” meaning the time served on parole would not count towards the sentence, and requiring the parolee to serve a state parole hit or additional time in state prison. Therefore, if you or a loved one are facing new criminal charges while on state parole, it is important to retain a defense attorney who has the skill and expertise to resolve the case in a timely manner and in a way that minimizes the parole consequences. It is important to retain a defense attorney who is well-versed in what those potential consequences could be. In some cases, a defendant on state parole may simply need to do everything possible to win the case in order to avoid a set back, and in others, it may be possible to negotiate a plea deal that does not result in a significant amount of additional jail time or that reduces the amount of time that the parole board is likely to impose.

Pennsylvania State Parole Set Backs for New Drug Charges

Deciding whether to go to trial or accept a plea deal is an extremely important decision for every criminal defendant. This decision can be even more difficult for a defendant who is on state parole because the defendant has to consider both the sentence that he or she would be facing on the new case as well as the sentence that the state parole board would be likely to impose. Fortunately, the parole board provides guidelines as to what kind of sentence a parolee can expect to serve in the event of a parole violation so that the system is not totally arbitrary.

With respect to a new drug charge, the length of potential jail time for the parole violation depends on the type of the drug charge and the gradation of the offense.

The regulations provide that a drug felony with a maximum of 15 years, such as the sale of heroin, could lead to a 24 to 36 month sentence for the parole violation.

A drug felony with a maximum of ten years in prison, such as the sale of cocaine or crack, has a presumptive range of 18 months to 24 months in prison for the violation.

A drug felony with a maximum of five years, such as the sale of marijuana, has a shorter presumptive range of 9 to 15 months in state prison.

Misdemeanor narcotics offenses are punished less severely. A misdemeanor with a maximum of 2 or 3 years is likely to lead to a 6 to 12 month hit, while a misdemeanor with a maximum of one year is likely to lead to a 3 to 6 month hit.

It is important to note that these presumptive ranges are simply advisory. It is always possible that the parole board could impose a longer or shorter sentence for a direct violation of state supervision.

Pennsylvania State Parole Hits for Gun Charges

The parole board also provides a presumptive setback for a Violation of the Uniform Firearms Act (“VUFA charge” or gun charge). According to the regulations, any defendant who is on state parole and is convicted of illegally possessing a firearm is likely to face an additional 18 months to 24 months in state prison in addition to whatever sentence the defendant receives on the new case. Therefore, a new gun charge arrest can be an extremely serious situation for a parolee.

Can I get a state parole detainer lifted?

In general, you cannot get a state parole detainer lifted. In most cases, the defendant will remain in jail until the new case is resolved. If the defendant serves the maximum sentence, then the parole board would likely lift the detainer because the defendant would no longer be on parole.

Can I get a county probation detainer lifted?

It is important to note that this discussion applies only to state parole detainers. County probation and state-supervised probation is very different. These presumptive ranges do not apply to potential probation violations. Instead, the judge which sentenced the defendant to probation would decide what sentence to impose in the result of a direct violation, and that sentence is not limited by any guidelines. At the same time, the judge may lift a probation detainer if the defendant’s lawyer files a motion to have the detainer lifted.

Can I get a county probation detainer lifted if I am being supervised by the state?

In some cases where a defendant receives a state sentence followed by a period of county probation, the judge may order that the state parole board supervise the defendant once the defendant is released and on probation. In that case, the defendant would be supervised by a state agent, but the judge would still retain jurisdiction to decide the penalty for a violation. The judge would also still have the authority to lift a detainer.

What should I do if I’m arrested for a new charge and am on state parole?

You should retain an experienced criminal defense lawyer who can give you the best possible chance to win your case at trial, preliminary hearing, or through a motion to suppress, or reduce the potential parole consequences through negotiations. If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 9/7/19 Zak Goldstein 9/7/19

Attorney Goldstein Wins Dismissal of Possession With Intent to Deliver Charges

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire recently won the full dismissal of Possession with the Intent to Deliver (“PWID”) and Knowing and Intentional Possession of a controlled substance charges at a preliminary hearing. In the case of Commonwealth v. D.H., the Philadelphia Municipal Court Judge dismissed the entire case after agreeing with Attorney Goldstein’s argument that prosecutors had relied entirely on hearsay evidence in presenting their case that D.H. allegedly sold drugs to a confidential informant.

In Commonwealth v. D.H., police claimed that they had conducted a multi-day narcotics investigation involving the use of a confidential informant. An officer testified at the preliminary hearing that he had arranged for the confidential informant to make a number of controlled buys. On day one, the confidential informant made two controlled buys of crack cocaine using pre-recorded buy money from an address in Philadelphia. On one of the times, an unknown female opened the door for the confidential informant. The police could not see who opened the door for the second transaction that day.

Police returned the next day armed with a search warrant. Prior to executing the search warrant, they sent the CI to the house one more time in an attempt to make another purchase of crack cocaine. Officers watched the CI approach the house. Again, the CI was let in by an unknown female. The CI then returned to the police with the newly-purchased crack cocaine. The defendant, D.H., and the female, then walked out of the house briefly and then returned and went back inside. Officers decided to execute the search warrant once they went back inside.

The police report for the case claimed that one of the officers who executed the search warrant saw D.H. grab a bag full of crack cocaine which matched that which had been sold to the CI and try to throw that bag in the toilet of an upstairs bathroom. Other officers claimed in their reports that they found paperwork with D.H.’s name on it in a bedroom which contained both an additional quantity of crack cocaine as well as some of the pre-recorded buy money. Therefore, because D.H. allegedly tried to get rid of the drugs and had identifying documents in a room that had the buy money in it, police assumed that he must have been the person in the house who had sold the crack to the CI on the three occasions prior to the execution of the warrant.

The problem with the case, however, was that the officer who actually testified at the preliminary hearing had not seen any of the things mentioned in the report. The officer was only able to testify to the allegations that he had seen the CI go into the house on three occasions, but he did not see D.H. ever interact with the CI. He also had not personally seen D.H. try to get rid of the drugs, and he had also not recovered the buy money himself. Further, on cross-examination, he admitted that the paperwork that they found with D.H.’s name on it actually showed that he lived at a different address.

At the hearing, prosecutors repeatedly attempted to question the officer as to the observations and recoveries made by the rest of the narcotics squad. Attorney Goldstein repeatedly objected to the introduction of this hearsay testimony. In general, some hearsay is admissible at a preliminary hearing. In the suburban counties, many magisterial district judges have begun allowing entire cases to be held for court based on nothing more than hearsay testimony. Fortunately, most Philadelphia judges continue to require at least some actual eyewitness testimony and still impose some limits on the use of hearsay at a preliminary hearing. Therefore, Attorney Goldstein moved for the dismissal of the case because the officer who testified had not actually seen D.H. do anything. He had not seen him interact with the CI, he had not seen him in possession of the drugs, and he had not recovered the buy money that was supposedly near D.H.’s mail. Thus, absolutely everything he testified to was hearsay that had been told to him by other officers.

The Municipal Court Judge agreed and dismissed the case. D.H. was immediately free to go, and the charges will be eligible for an expungement.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and First-Degree Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 7/14/19 Zak Goldstein 7/14/19

PA Superior Court: Police Need Search Warrant to Collect Real Time Cell Site Location Data

The Pennsylvania Superior Court has decided the case of Commonwealth v. Pacheco, holding that the police are required to obtain a search warrant if they wish to collect an individual’s real-time cell site location information (hereinafter “CSLI”). This is a very significant decision because police are increasingly relying on suspects’ digital footprints when they are building and prosecuting cases in all types of crimes.

Note: The Superior Court subsequently granted re-argument in this case. This means that the decision will be reviewed by additional judges and should not be relied upon until the re-argument process is complete. It could be affirmed, reversed, or modified in some other way.

Commonwealth v. Pacheco

In April 2015, the Montgomery County, PA District Attorney’s office and its Narcotics Enforcement Team uncovered a large alleged criminal conspiracy. The DA’s office learned that a Mexican drug trafficking organization was smuggling heroin into the United States and the defendant, a Norristown resident, was picking up the heroin in Atlanta, Georgia and then transporting it to wholesale buyers in New York City.

On July 23, 2015, Montgomery County prosecutors applied for and obtained orders for a wiretap pursuant to Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (hereinafter “The Wiretap Act”) for the defendant’s cell phone. One month later, on August 28, 2015, Montgomery County prosecutors sought and obtained additional orders under the Wiretap Act to obtain information relating to the defendant’s cell phone number and the numbers for other cell phones believed to be used by him. Pursuant to these orders, prosecutors obtained call detail records for the past thirty days. Additionally, the orders allowed prosecutors to obtain mobile communication tracking information, install and use pen registers, trap and trace devices, and telecommunications identification interception devices for sixty days. On October 15, 2015, the court issued an order extending the surveillance of the defendant’s phone for an additional sixty days.

On December 11, 2015 and January 6, 2016, the Montgomery County DA’s office sought and obtained orders from the Pennsylvania Superior Court to allow them to intercept oral, electronic, and wire communications for the cell phone registered to the defendant, as well as three others believed to be used by him. The detectives also obtained real-time cell site location information (“CSLI”), but did not get a search warrant for this information. Based on the results of these orders, prosecutors and detectives analyzed the information and identified multiple occasions between September 2015 and January 2016 when the defendant traveled to Atlanta and New York as a member of the drug trafficking organization.

On each trip, the defendant obtained a car battery containing three kilograms of heroin in Atlanta, returned briefly to Norristown, and then transported the heroin to New York. The defendant would use his cell phone to facilitate these transactions. Based on their investigation, the detectives also learned that on January 10, 2015, the defendant planned to drive from Georgia back through Norristown with a retrofitted car battery containing three kilograms of heroin. Police assembled a surveillance team along the defendant’s anticipated route and apprehended him in Montgomery County. A search of his vehicle revealed three kilograms of heroin hidden in the car’s battery.

The defendant was subsequently arrested and charged with nine counts of Possession with the Intent to Deliver (“PWID”)., two counts of dealing in unlawful proceeds, and one count of conspiracy to commit PWID and corrupt organizations. The defendant then moved to suppress the call detail records and the evidence that was collected through the telecommunications interception devices. Following a suppression hearing and supplemental briefing, the trial court denied his suppression.

The case then proceeded to a jury trial that began on August 7, 2017. The defendant stipulated that he transported three kilograms of heroin on seven of the nine trips detected by law enforcement. He also admitted that he “did the things that police say [he] did.” However, the defendant raised the defense of duress by claiming that he was coerced by Mexican drug cartels to act as a drug courier and if he did not comply, the cartels threatened that they would kill his family members. At the conclusion of the trial, the jury convicted the defendant of all charges except corrupt organizations. On November 29, 2017, the trial court sentenced him to forty to eighty years, followed by ten years of probation. The defendant then filed post-sentence motions which were denied. He then filed a timely appeal to the Pennsylvania Superior Court.

What is CSLI?

In Carpenter v. United States, the United States Supreme Court explained CSLI as follows:

There are 396 million cell phone service accounts in the United States…Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closet cell site. Most modern devise, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carries have install more cell sites to handle the traffic….[a]accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

Do the Police Need a Search Warrant to Collect CSLI?

Yes. In Carpenter, the United States Supreme Court held that an individual maintains a legitimate expectation of privacy in the historical record of his physical movements as captured through CSLI. The Supreme Court stated that CSLI date contains the “privacies of life” because most people carry their cell phones everywhere they go. It was no consequence that this information is voluntarily provided to cell phone companies. However, Carpenter did not address the issue of “real time CSLI” which was the issue in the defendant’s case.

The Superior Court’s Decision

The Pennsylvania Superior Court granted the defendant’s appeal. The Superior Court found that the detectives needed to obtain a search warrant before they collected the defendant’s real-time CSLI information. Although this was an issue of first impression in the Commonwealth, the Superior Court recognized that many other courts that have addressed this issue have determined that real-time CSLI is subject to the same privacy concerns as historical CSLI. Specifically, the court found that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. Further, the Superior Court held that the Commonwealth did not comply with the Fourth Amendment when it obtained orders under the Wiretap Act because obtaining an order under the Wiretap Act does not require probable cause. Instead, these Wiretap Act orders are granted so long as the information likely to be obtained is “relevant to an ongoing criminal investigation being conducted by that agency.” Therefore, the Superior Court held that the real-time CSLI evidence seized from the cell phone was the product of a constitutionally defective warrantless search. Thus, the defendant’s sentence was vacated for further proceedings, which could include a new trial.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Possession with the Intent to Deliver, and First Degree Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.