Philadelphia Criminal Defense Blog

Zak Goldstein 10/7/19 Zak Goldstein 10/7/19

PA Superior Court: Odor of Marijuana Still Contributes to Probable Cause

The Pennsylvania Superior Court decided the case of Commonwealth v. Batista, holding that the smell of fresh marijuana, along with other indications that the property was being used as a grow house, provided police with probable cause to obtain a search warrant for the premises. Although there has been a liberalization of marijuana laws in Pennsylvania and Philadelphia, it is still illegal to grow and possess marijuana under many circumstances. Therefore, appellate courts have continued to hold that the odor of marijuana may give police probable cause to conduct a search.

Commonwealth v. Batista

Officer Beattie of the Philadelphia Police learned from an unidentified source that a major marijuana growing operation was occurring at the defendant’s residence. Officer Beattie also learned from the unidentified source “that you can smell the odor of fresh marijuana coming out of the exhaust system that’s located in the front window of the first floor.” Officer Beattie and two other investigators went to see and smell the residence. The officers observed “a surveillance camera directed at the front door…a gated-in lot, with a shed located inside of the lot, and a surveillance camera” which faced the front of the property. Multiple officers then walked by the front of the residence and smelled a strong odor of fresh marijuana coming from the exhaust system that was running in the first-floor window.

Officer Beattie then performed a real estate check that revealed that the defendant was the owner of the property. Officer Beattie next applied for a search warrant of the residence based on the above information. Additionally, Office Beattie included that he has been a Philadelphia police officer for approximately 23 years and assigned to the Narcotics Bureau for 20 of those years. The magistrate then concluded that there was sufficient probable cause to suspect the defendant of illegally growing marijuana in his garage and issued a search warrant.

The next day, the police executed a search warrant and uncovered 91 marijuana plants in the defendant’s garage. The defendant was then placed under arrested and he was charged with various drug-related offenses. The defendant then filed a motion to suppress which was denied. The defendant then proceeded to a bench trial where he was found guilty of possession of marijuana with the intent to deliver and possession of drug paraphernalia. The defendant was then sentenced to an aggregate sentence of 11 ½ to 23 months incarceration. He appealed.

The Defendant’s Appeal

In his appeal, the defendant argued that the magistrate’s finding of probable cause was erroneous. Specifically, he argued that marijuana is legal in Pennsylvania and decriminalized in Philadelphia. Further, he stated that “medical marijuana became legal in Pennsylvania more than one year before the search of his home when the legislature enacted the Medical Marijuana Act.” Also, he stated that because Philadelphia made possession of marijuana a civil offense the smell of marijuana is not indicative of criminal activity. Therefore, because of these new developments in the law regarding marijuana, the defendant argued that the policed lacked probable cause to search his residence.

Can the Police Stop Me if They Smell Marijuana?

Probably. In general, marijuana is still illegal under state and federal law. The fact that Philadelphia has stopped enforcing most marijuana prohibition does not mean that police do not have reasonable suspicion or probable cause based on the odor of marijuana. Further, there are very few medical marijuana dispensaries in the state of Pennsylvania, and the fact that some people now have medical marijuana does not necessarily mean that the odor of marijuana does not provide reasonable suspicion or probable cause for police to make a stop or search. However, as marijuana laws continue to be liberalized, it is possible that courts will eventually find that the odor of marijuana does not provide reasonable suspicion or probable cause for police to search someone because the police should not just assume that the person does not have a prescription to smoke marijuana.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Superior Court found that though the defendant’s argument was “novel,” he still would not prevail. The reason was, as discussed above, is that the police are still allowed to stop someone when they smell marijuana. Additionally, there was no evidence that his residence qualified as a dispensary. As the Superior Court noted, a very small number of growers have been qualified as a “grower/processor” under the Medical Marijuana Act. As of now, there can only be, at most, 25 of these growers/processors. Further, the Superior Court deferred to Officer Beattie’s experience as a narcotics officer. It is important to note that the Superior Court did not rely entirely on the odor of marijuana alone in justifying the search. The officer also noted other factors such as the camera, the exhaust system, and things of that nature in concluding that the defendant was operating a grow house. Had the officer merely smelled marijuana, the outcome may have been different. Therefore, the Superior Court held that there was sufficient probable cause to issue the search warrant. As such, the defendant will not get a new trial and he will have to serve his sentence.

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 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 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.

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.

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.