Philadelphia Criminal Defense Blog

Zak Goldstein 2/29/20 Zak Goldstein 2/29/20

Philadelphia Criminal Defense Lawyer Zak Goldstein Wins Motion to Suppress in Gun and Drug Case

Gun Charges Defense Lawyer Zak Goldstein

Criminal defense attorney Zak T. Goldstein, Esquire recently won an important motion to suppress the physical evidence in the case of Commonwealth v. A.W. In A.W., the Philadelphia Police Department narcotics unit had recently received a complaint from a local city councilwoman’s office with information that drugs were being sold outside on a certain block. Officers from the Narcotics Field Unit quickly went to that block and set up a surveillance operation. They claimed that as they were watching the block, the defendant drove up and parked across the street from them. They were then able to see into his car and see that he had taken money out of his pocket and begun counting it. He put the money away, got out of the car, and started walking up the block. The defendant then made a phone call, turned and jogged in the opposite direction, and met up with another black male in the middle of the block. They shook hands and then walked into an unknown house out of view on that street.

After about ten minutes, the officers saw A.W. return to his car, but he was now carrying a plastic shopping bag into which they could not see. He got back in the car and drove away. Believing that a drug transaction had occurred, the surveillance officers radioed for backup officers to stop A.W. and search him and his vehicle. When backup officers pulled A.W. over, they found a gun in his waistband and a significant amount of marijuana and other drugs in the car. The Philadelphia police arrested A.W. and charged him with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, and numerous Violations of the Uniform Firearms Act including Section 6105 (felon in possession), Section 6106 (carrying a concealed firearm without a permit), and Section 6108 (carrying a firearm on the streets of Philadelphia). Given all of these charges, A.W. was potentially facing decades in prison.

Fortunately, A.W.’s family quickly retained Philadelphia Criminal Defense Attorney Zak Goldstein. Attorney Goldstein reviewed the police reports, defended A.W. at the preliminary hearing, and filed a motion to suppress the evidence, arguing that police had not actually seen any evidence of criminal activity which would justify the stop of A.W.’s vehicle and the search of his person and the car.

The Philadelphia Court of Common Pleas – Criminal Division held an evidentiary hearing on the motion to suppress. During the hearing, the officer testified to the above observations as well as his conclusion that he had witnessed a drug transaction due to the fact that A.W. was in a high crime area, was counting money, did not seem to know exactly where he was going prior to making the phone call, and went into a house and then came back with an opaque shopping bag that could contain drugs.

Attorney Goldstein successfully convinced the Court that all of these observations were equally consistent with totally legal behavior. There was simply nothing illegal about being in that area, counting some money, and then going into a house. The trial court agreed and granted the motion to suppress. Without the ability to introduce the drugs or gun into evidence, the Commonwealth was forced to move to dismiss the charges, and A.W. was quickly freed from custody with no conviction.

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 1/26/20 Zak Goldstein 1/26/20

PA Superior Court: Search of Cell Phone After Expiration of Search Warrant Violates Fourth Amendment

Zak Goldstein - Philadelphia Criminal Defense Attorney

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bowens, holding that the police may not search a cell phone after the warrant authorizing the search has expired even if the police initially had technical difficulties with the phone and did not view any data that would have been generated after the warrant expired. This is an important decision because it shows that PA appellate courts continue to reject prosecutors’ attempts to create a good faith exception to the exclusionary rule in Pennsylvania.

Commonwealth v. Bowens

On October 12, 2016, a Pennsylvania State Trooper observed a vehicle abruptly change lanes from the passing lane to the right lane, nearly hitting another vehicle. After activating the emergency lights on his vehicle, the trooper observed the driver of the vehicle reaching over towards the glove box as he pulled the car onto the shoulder of the road. The defendant was sitting in the front passenger seat. While speaking with the defendant and the driver, the trooper noticed that the men seemed nervous. The driver informed the trooper that the car belonged to his girlfriend in New Jersey. He also stated that he and the defendant were travelling from York to Lancaster and then to Chester and Philadelphia.

While the trooper was speaking with them, another trooper learned that there were arrest warrants outstanding for both men. The trooper then took the men into custody and took possession of their cell phones. The trooper then set the defendant’s phone to airplane mode and placed it inside an aluminum foil-lined pouch for safekeeping. The trooper impounded the vehicle and conducted an inventory search. The glove box was locked, and both the defendant and the driver denied having the key. They also denied knowing anything about the contents of the glove box. The trooper then contacted the driver’s girlfriend who gave him permission to search the glove box. She also stated that the driver had the key.

The trooper obtained a search warrant to search the glove box. Inside the glove box, he found heroin, drug paraphernalia, and two firearms. The trooper then obtained a search warrant for the cell phones and provided them to a detective with the Northern York County Regional Police Department who was a forensic expert in the field of cell phone data extraction. The search warrant expired on October 16, 2016 at 10:45 AM. On October 20, 2016, the detective notified the Trooper that he had completed the cell phone extraction, which revealed text messages between the defendant and his companion using language common to the illicit drug trade. The defendant’s phone also contained photographs of cash and of a handgun similar to the one found in the glove box.

The defendant was subsequently charged with Possession with the Intent to Deliver (“PWID”), conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried without a License, and Possession of Drug Paraphernalia. The defendant then filed a motion to suppress. At the motion to suppress hearing, the trial court denied his motion in part and granted it in part. The defendant argued that the contents of the defendant’s phone search should be suppressed because his phone had been searched after the search warrant had expired. However, the trial court held that because the phone had been in airplane mode, there were no “staleness concerns that would be present in other factual scenarios where the probable cause determination would have expired.” Further, the trial court found that delay in searching the phone “was a product of coordination delays between the police possessing the software and the expertise to do the job.” The court did hold that any information that was sent to the phone after the search warrant had expired would be inadmissible at trial.

The defendant then proceeded to a jury trial where he was found guilty of all the charges, and he was sentenced to 15 years 9 months’ to 31 years 6 months’ incarceration. The defendant then filed a timely post-sentence motion. After the trial court denied the motion, he filed his appeal. On appeal, the defendant raised several issues. However, for purposes of this blog, only the issue of whether the evidence was sufficient to convict the defendant of the drug and firearms offenses and whether the trial court improperly denied his motion to suppress the data that was found on his phone.

Do Search Warrants Expire in Pennsylvania?

Yes. Rule 205(A)(4) of the Pennsylvania Rules of Criminal Procedure states that a search warrant must be executed within a specific period of time, not to exceed two days from the time of the issuance or if the warrant is issued for a prospective event, then only after the event has occurred. There are not exceptions to Rule 205(A)(4) and the failure to adhere to this rule amounts to a “federal constitution violation.”

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision to deny the motion to suppress. The Court found that the trial court committed reversible error when it denied the defendant’s motion to suppress. The trial court found that because the detective searched the phone past the expiration date of the search warrant, this amounted to warrantless search. Additionally, the Superior Court found that this error was not harmless, because the evidence from the cell phone extraction was the only evidence that the Commonwealth presented to support its conspiracy charge.

Additionally, the Superior Court found that there was not enough evidence to convict the defendant of possessing the firearms or the drugs. The Superior Court reasoned that the Commonwealth did not prove that the defendant had constructive possession of the contraband at the time of the traffic stop. The Superior Court stated that the defendant did not have access to the key to the glove compartment because it was in possession of his co-defendant and there was no evidence presented that he had control over the contraband. Rather, the only thing the Commonwealth proved was that the defendant was merely present in the vehicle at the time of the traffic stop.

Consequently, the defendant’s sentence was vacated. His convictions for PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and Firearms Not to be Carried Without a License are also vacated and the Commonwealth cannot retry him on those charges because the evidence was not sufficient to convict him of them. Therefore, the only charge remaining against him is the conspiracy charge and he will get a new trial on that charge.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 1/13/20 Zak Goldstein 1/13/20

What are the penalties for possessing a gun as part of a federal drug trafficking offense?

Federal Gun Charges Lawyer Zak Goldstein

Guns and Drugs in Pennsylvania and New Jersey Federal Courts

Federal law imposes severe penalties on the possession of a firearm during a federal drug trafficking offense. Specifically, Section 924(c) requires a federal judge to impose certain consecutive mandatory minimum sentences where a defendant:

A) uses or carries a firearm;

I) during and in relation to any crime of violence which may be prosecuted in a court of the United States; or

ii) during a drug trafficking offense which may be prosecuted in a court of the United States; or

B) possesses a firearm in furtherance of such offense.

This means that there are three ways that a defendant can be prosecuted for having a gun while selling drugs. The defendant can be prosecuted for 1) the use of the weapon during the crime, 2) carrying the weapon while committing the crime, or 3) possessing a firearm in furtherance of the underlying crime.

In order to show that a defendant used a gun during a drug trafficking offense, prosecutors must show the active employment of the firearm. This generally means actually using the gun in the common sense of the word - firing it, attempting to fire it, displaying it, brandishing it, or striking someone with it. Simply having a gun nearby for protection is unlikely to qualify as the use of the firearm.

It is often easier for the prosecution to prove that someone “carried” a firearm during a federal drug trafficking offense than that the person used it. For example, carry has often been interpreted as being synonymous with possessed, and there are two types of possession. First, there is actual possession in which a defendant physically has a gun on his person such as in a pocket. Second, there is a constructive possession. Constructive possession is a doctrine which means simply that the person has dominion and control over the gun. This allows for a prosecution even where the defendant does not physically have the gun on them such as where a gun is hidden somewhere in a car. Constructive possession is harder to prove because prosecutors are not always able to show that the defendant actually knew about or controlled the gun.

Finally, prosecutors can show that a gun was used in furtherance of a specified crime by showing that the gun was possessed, either actually or constructively, during and in relation to a gun crime. This generally means that “the defendant intended the weapon to be available for use during the drug transaction, that the defendant availed himself of the weapon and that the weapon played an integral role in the drug offense.” Thus, this is a higher bar to prove than possession or simply use.

What is a drug trafficking crime that would trigger the mandatory minimum?

Federal law also provides the definition for a drug trafficking crime. Under 18 U.S.C. Section 924(c), a drug trafficking crime is:

[A]ny felony punishable under the Controlled Substances Act (21 U.S.C. § 801, et seq. ), the Controlled Substances Import and Export Act (21 U.S.C. § 951, et seq. (importation, transshipment of controlled substances), or chapter 705 of titl e 46. [46 U.S.C. App. §1901, et seq. (manufacture, distribution or possession with intent of controlled substances on board vessels)].”

Whether a specific offense qualifies as drug trafficking crime is sometimes the subject of litigation, but this mandatory minimum generally applies to the sale of drugs while possessing a firearm.

It is important to note that a defendant could also face vicarious liability, meaning that if a co-defendant or co-conspirator used a gun as part of a drug trafficking offense, the defendant could be on the hook for the co-defendant’s mandatory minimum if the defendant knew or it was reasonably foreseeable that the co-conspirator would have a gun.

What is the federal mandatory minimum for possessing a gun while selling drugs?

The mandatory minimums for possessing a gun while selling drugs can be staggering in federal court. For example, a first offense carries a mandatory minimum of five years consecutive to any other sentence. If the firearm was brandished, then the mandatory minimum increases to seven years. If the firearm was fired or was an illegal shotgun or rifle, then the mandatory minimum becomes ten years. Finally, if the gun was a machine gun or a destructive device like a bomb, then the mandatory minimum is thirty years.

The penalties become even more severe for a second or subsequent offense. For a second offense, the mandatory minimum becomes 25-years or life for a machine gun or bomb. If a death results from the use of the gun, then the penalties can be even worse.

It is important to note that these mandatory minimums are only the minimum sentence that a federal just must impose following a conviction and that the judge can actually impose more time than the mandatory minimum. The Third Circuit Court of Appeals, which handles appeals arising from federal cases in Philadelphia and New Jersey, has ruled that although the statute does not explicitly reference a maximum potential sentence, a violation of 924(c) can actually be punished by a maximum sentence of life in prison.

What are the defenses to charges of possessing a gun while committing a drug trafficking offense?

Fortunately, there are defenses to these serious charges. As with many possessory offenses, the defenses could include:

Motions to Suppress. If the police or federal agents did something illegal during the investigation of the case, it may be possible to have the drugs or guns and the charges dismissed. For example, if agents raided a home without a search warrant and found the gun which was allegedly used as part of the offense, it could be possible to have the gun suppressed, which would eliminate the prosecutor’s ability to bring the gun charges. Likewise, if police conducted an illegal interrogation by failing to provide Miranda warnings, it could be possible to have a defendant’s inculpatory statement suppressed.
Challenging Possession. In many gun cases, it may be possible to challenge whether the defendant actually possessed the gun. This could be through challenging the credibility of the agents or officers on cross-examination where they claim that the gun was actually on the defendant or by showing that the defendant did not actually know about or have control of a firearm in a case involving constructive possession allegations.
Challenging Drug Trafficking. As the statute makes clear, the mandatory minimum only applies where there is some relationship between the firearm and gun trafficking. Even if prosecutors in the Eastern District of Pennsylvania can prove that the defendant possessed the gun, it may be possible to challenge the allegations that the defendant was engaged in drug trafficking. This would be a defense to the gun charges as well because the gun charges are dependent on the drug trafficking charges.

These are just a sample of potential defenses for a gun and drug case, and there may be other defenses which apply in your case. Further, in some cases, prosecutors may have strong evidence, and it may be possible to negotiate a better deal for the client so that the client can avoid these extreme mandatory minimum sentences. Our experienced federal gun charges lawyers have the experience and expertise to fight your case and help you obtain the best possible result.

Facing criminal charges? We can help.

Gun Charges Defense Attorneys in Philadelphia, PA

Zak Goldstein 12/11/19 Zak Goldstein 12/11/19

Can My Probation Officer Search My House Without a Warrant?

Can A Probation Officer Search My House While I Am On Probation or Parole?

An issue that frequently comes up when litigating motions to suppress in drug and weapons cases is whether the police or probation department need a search warrant to search the house of a someone who is on probation or parole. In general, both the United States and Pennsylvania Constitutions require law enforcement officers to get a search warrant before conducting a search of a private residence. However, there are a few limited exceptions to this rule, and two of those exceptions apply to people who are on probation or parole.

Probation Officers May Conduct Limited Home Visits

First, a probation or parole officer may conduct a limited home visit of a probationer’s home without a warrant as part of the conditions of probation or parole. The probationer may be lawfully compelled to show the probation officer around the house, and if the officer sees anything incriminating in plain view, these items can be used against the probationer. Evidence such as drugs, guns, or other contraband may be used to establish violations of the terms of the supervision or to bring new criminal charges.

Probation Officers Do Not Need A Search Warrant - But They Do Need Reasonable Suspicion

Second, the probation officer may conduct a full search of a probationer’s house where the officer has reasonable suspicion to believe that there may be contraband in the house. Reasonable suspicion is a lower standard than probable cause, and the officer is not first required to obtain a warrant before conducting the search. Instead, the officer must simply get authorization from a supervisor. Although probation officers may use these exceptions either to conduct a home visit or search based on reasonable suspicion, they are not allowed to act as a “stalking horse” for or at the direction of the police department or other law enforcement agencies who wish to use the probation as a pretext to conduct a warrantless search.

For both types of searches, probation officers may typically search the entire house. The search is not limited to the room in which the probationer stays. This is because the owner of the house will generally sign a release prior to the probationer or parolee being allowed to stay in the house. In some cases, however, it may be possible to challenge the scope of an overly broad search with respect to a defendant other than the probationer.

Recent Caselaw on Probation and Parole Searches in Pennsylvania

The Pennsylvania Superior Court recently considered these exceptions in the case of Commonwealth v. Parker, 2016 Pa Super 280 (Pa. Super. Ct. 2016). In Parker, the Superior Court upheld the ability for probation officers to search a probationer’s home without any prior allegation of wrongdoing by the probationer, reversing the trial court’s order granting a motion to suppress crack cocaine which was allegedly found in Mr. Parker’s home.

When Parker was released from custody on a prior case, he agreed to the standard terms and conditions of probation to which many defendants must agree in counties through Pennsylvania. Specifically, he agreed to allow his probation officer to visit his home at any time to confirm compliance with the conditions of supervision. He also agreed that he would not possess any contraband and that he would permit the officer to search his home and vehicle based upon reasonable suspicion that contraband could be found.

The case began when probation officers arrived at Parker’s home to conduct a home visit. Upon entering the house, they noticed, “apparently in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and small rubber bands.” The officers believed from past experiences that such items are commonly used for drug distribution, and they also observed a shotgun in an open closet in the kitchen. The officers then went up to Parker’s room, where they found bullets, knives, and a bong all in plain view. The probation officers contacted police officers. The police officers came to the scene, but they opted not to obtain a warrant and left. The probation officers then contacted a supervisor, who authorized a search of the home, and the probation officers proceeded to find cocaine in the refrigerator. At that point, the officers called the police back to Parker’s home, and the police arrested Parker.

Grounds for the Motion to Suppress the Results of the Probation Search

Parker moved to suppress all the items, arguing that the probation officers conducted an illegal search by entering his home without reasonable suspicion and that they should have obtained a warrant before searching the refrigerator. Parker also alleged that the probation officers had used their authority to evade the warrant requirement and act as a “stalking horse” for the local police department. Parker’s attorneys suggested that the police wanted to conduct a search but did not have the probable cause necessary for a warrant.

The trial court rejected the argument that the probation officers could not enter the home to conduct a basic tour and observe any contraband in plain view, but the trial court ruled that the officers should have obtained a search warrant before searching the refrigerator. Because the officers had already called the police to the scene, they did, in effect, act as agents of the police department, and therefore, they should have obtained a warrant before finding the cocaine in the refrigerator.

Standards for Probation Searches

The Superior Court reversed the suppression of the cocaine and reaffirmed the prior decisions which set these standards. The Superior Court concluded that first, under existing caselaw, probation officers may lawfully conduct a home visit, tour the house, and seize any evidence of contraband which is in plain view. Second, once the probation officers find drug packaging, weapons, and bullets which have been left out in the open, the officers do not have to obtain a warrant to search the rest of the house because they have reasonable suspicion that other contraband might be found. Third, the court rejected the trial court’s conclusion that the probation department had acted as a stalking horse for the police department because there was no evidence at the motion to suppress that the police had in any way directed the search. Accordingly, the court ruled that the full search of the house was permitted despite the absence of a warrant.

There Are Limits on Probation and Parole Officers

Although the Superior Court ultimately ruled against Mr. Parker, the decision does show that even though defendants who are on probation at the time of a search have fewer rights than people who are not on probation, there are still real limits on the ability of a probation officer to search a house. First, the probation officer is limited to walking through the house and viewing only items which are in plain view. The officer cannot show up for a home visit and begin tearing the house apart. Second, the officer must have reasonable suspicion in order to conduct a full search without a warrant. This standard requires the officer to point to specific and articulable facts for why the officer believed contraband might be found. The officer cannot conduct a search for drugs simply because the defendant was under supervision for drugs.

Can the Police Search My House If I Am On Probation?

Although probation officers do not need a warrant to search the house of a probationer or parolee, the police cannot use the probation department to evade the warrant requirement and engage in a warrantless search. Unless the evidence is first uncovered by probation officers because it was in plain view during a home visit or because the officers had legitimate reasonable suspicion, police officers must still obtain a search warrant prior to searching the home of someone who is on probation. When the police or probation department violate these rules, the evidence could be excluded following a successful motion to suppress. This rule is called the “stalking horse doctrine.”

Our Philadelphia Probation Lawyers Can Help With Probation Violation Hearings

Zak T. Goldstein, Esq. - Philadelphia Probation Violation Lawyer

Different standards apply to probationers, but law enforcement must still follow the law. If you or someone you know are facing narcotics or weapons charges for drugs or other contraband found in your house, car, or on or near your person, you need the advice of a skilled criminal defense lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. We have even won motions to suppress significant quantities of drugs and guns due to illegal parole searches. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC at 267-225-2545 for a free, confidential, and honest case evaluation.