Criminal Defense Attorney Zak Goldstein Wins Motion to Quash in Possession with the Intent to Deliver Case

Philadelphia Criminal Lawyer

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won the full dismissal of the charges against his client in a case involving charges of Possession with the Intent to Deliver various controlled substances such as crack, heroin, and marijuana. In Commonwealth v. A.T., Attorney Goldstein won the dismissal of all charges by filing a Motion to Quash in the Court of Common Pleas. Because the trial judge agreed that the Commonwealth had completely failed to prove that A.T. ever possessed any drugs, the judge dismissed the entire case against her. 

In A.T., Philadelphia police officers testified at the preliminary hearing that they saw a group of people running down the street. Based on their experience, they believed that they were witnessing people either running away from a shooting or that a shooting was about to occur. Therefore, the officers immediately gave chase to determine what was going on.

The majority of the group made it into a house before the police stopped them. One person, however, was left behind and locked out. That person told the officers that he believed that there was going to be a shooting. The officers then went around to the back of the house and a saw A.T. and another person run from the house. The officers chased them, caught them, and brought them back to the house.

The officers then searched the house for evidence of a shooting. In one bedroom in a baby’s crib, they found a significant quantity of narcotics. They also found drug paraphernalia in that bedroom. Later, the officers saw a cat in the kitchen pawing at a duffel bag. Allegedly concerned that the cat might be hungry, the officers went into the bag to see if there was cat food in the bag. They found more drugs in the bag in the kitchen. 

Officers asked A.T. who lived in the house, and she admitted to living there. She did not, however, tell them that the drugs in the bag or in the bedroom belonged to her. The officers also found mail in her name in the house, but they did not say where they found the mail. The officers testified at the preliminary hearing that there was more than one bedroom in the house and that they had brought the male who ran out the back of the house back to the house, as well. They ultimately let that person go without filing drug charges against him. 

Based on the discovery of the significant quantity of drugs and paraphernalia in the house and the fact that A.T. admitted to living there and receiving mail there, the officers decided to arrest A.T. and charge her with Possession with the Intent to Deliver. A.T. quickly retained Attorney Goldstein, who moved for dismissal of the charges at the preliminary hearing on the grounds that the Commonwealth failed to establish that A.T. constructively possessed the drugs in question. The Municipal Court Judge, however, disagreed and held A.T. for court on all charges.

Attorney Goldstein then filed a motion to quash in the Court of Common Pleas. A motion to quash, which is sometimes called a Habeas Petition in the suburban counties, asks the Court of Common Pleas judge to review the notes of testimony from the preliminary hearing and dismiss some or all of the charges. Essentially, it is an appeal of the preliminary hearing that could result in the dismissal of a case prior to charges if the Commonwealth really introduced insufficient evidence at the preliminary hearing. 

In the quash, Attorney Goldstein argued that the Commonwealth failed to establish anything beyond A.T.’s presence in a house in which police later found drugs. In order to prove possession of a controlled substance where the defendant is not found physically possessing the drugs (with the drugs on him or her), the Commonweath has to establish constructive possession. Constructive possession requires showing that the defendant knew about the drugs and had the intent and ability to control them. This doctrine protects an individual from being held responsible for drugs that belong to someone else.

Thus, if you live in a house with a roommate who is involved in drug activity, you should not be held responsible for the decisions of your roommate so long as you do not participate in the drug activity. Here, the Commonwealth showed only that there were drugs in a house and that A.T. stayed in the house. The Commonwealth completely failed to show that the drugs belonged to her, that the mail was found anywhere near the drugs, or that she was engaged in selling drugs. Furthermore, because multiple people had run through the house and then out the back of the house, it was very possible that one of those people had seen the police chasing them and discarded the drugs in the house so as to avoid drug possession charges. 

The trial court agreed that there was simply insufficient evidence to force A.T. to stand trial for Possession with the Intent to Deliver. Therefore, the court dismissed all of the charges, and A.T. will be eligible to have the arrest record expunged immediately. 

If you need a criminal defense lawyer in Philadelphia, we can help. 

Criminal Defense Lawyer for Drug Charges - Zak T. Goldstein, Esquire

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, DUI, 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.

Third Circuit Court of Appeals: Court May Consider Total Weight of Drugs Handled on Different Occasions at Sentencing

Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of United States v. Diaz. The Court held that a trial court may consider the cumulative weight of drugs possessed by a defendant for purposes of his sentencing guidelines. This decision is important because it allows a trial court to aggregate all of the drugs that a defendant possessed on different occasions when calculating the guideline sentencing range, which can make the recommended sentence much higher. Even minor differences in the weight of drugs involved can have a dramatic effect on a criminal defendant’s sentencing guidelines.   

United States v. Diaz

The defendant was charged along with five co-defendants with conspiracy to distribute and possess with the intent to distribute heroin. One of the co-defendants, Guzman, allegedly orchestrated the conspiracy. He distributed drugs to his co-defendants, including his mother and the defendant. All of the defendant’s co-defendants pleaded guilty. The defendant, however, pleaded not guilty and went to trial.

After being indicted, the defendant represented that he could not afford counsel and he was appointed a Criminal Justice Act (CJA) counsel to represent him. Shortly after his CJA counsel was retained, she accepted a position as an assistant district attorney with an unknown prosecutor’s office. As such, she withdrew from the defendant’s case and he was appointed a new attorney on July 13, 2016. The defendant was not satisfied with his new attorney’s representation. According to the defendant, his new attorney pressured him to plead guilty, did not accept his advice on submitting pre-trial motions, and failed to turn over discovery to him. Consequently, the defendant filed a pro se motion to remove his new attorney from the case. The court held a hearing, and the trial court attempted to resolves their issues. Despite the trial court’s best efforts, it was not able to assuage the defendant’s concerns. The court therefore gave the defendant a new court-appointed attorney.

Unfortunately for the defendant, his relationship with his new attorney was not great, either. On December 5, 2016, the defendant wrote the trial court a letter stating that he had not received requested documents from his new attorney. The trial court then issued an order acknowledging receipt of the defendant’s letter and then forwarded a copy of said order to his attorney. It is unknown if the attorney responded to the defendant. 

A few months later, on February 7, 2017, the defendant wrote to the trial court again stating that he still did not have his requested discovery. The trial court then ordered the attorney to file a response to the defendant, however he did not. Shortly thereafter, the defendant filed another motion requesting a new attorney. The trial court did not seek any additional information from the attorney or the defendant. The trial court also did not schedule a hearing to address the defendant’s request or replace the attorney. About a month after the latest request from the defendant seeking new counsel, the attorney wrote to the trial court requesting a continuance. He also stated that he and the defendant had resolved all of their issues and that the defendant wished to continue having the attorney represent him. At the April 7, 2017 pre-trial conference, the defendant did not raise any issues between him and his attorney. 

This harmony was short lived. Ten days after the pre-trial conference, the defendant again wrote to the trial court stating that the attorney failed to adequately represent him and to provide him his requested discovery. It is unclear if the trial court made a formal acknowledgment of this letter. Approximately two months later, the defendant wrote to the trial court again complaining of his attorney’s supposed shortcomings. However, the defendant did not specifically request a new attorney. On August 16, 2017 the defendant’s case proceeded to trial with the defendant being represented by his current attorney. 

At his trial, multiple witnesses were called to testify against the defendant. These witnesses included his co-defendants (who had already pleaded guilty) and various DEA agents. Additionally, the Government introduced intercepted communications between the defendant and his co-defendants. The testimony showed that although the defendant was not the leader of the organization, he was involved in the drug trafficking. Specifically, the calls showed that he would primarily “bag” up the drugs and that he would also engage in selling on his own behalf. The testimony showed that on multiple occasions the defendant would bag 500 bags of heroin, which amounted to approximately 15 grams. At the conclusion of his trial, the defendant was found guilty of conspiring to distribute and possession with the intent to distribute. 

At his sentencing hearing, there was some debate about the weight of drugs that were involved in this case. The defendant argued that only 15 grams of heroin should be attributed to him instead of the 30 grams that the Government alleged. This is significant because U.S.S.G. § 2D1.1(c)(12) governs the guidelines for 20-30 grams of heroin and, it may go without saying, but the guidelines are harsher for 20 grams in comparison to 15 grams. At the conclusion of the sentencing hearing, the defendant was sentenced to 33 months imprisonment and three years of supervised release. After his sentencing, the defendant filed a timely appeal. On appeal, the defendant raised three issues: the trial court’s failure to inquire into the defendant’s motion for appointment of new counsel, the improper admission of one of the DEA agent’s testimony, and finally the trial court’s attribution of more than 20 grams of heroin to the defendant at sentencing. For purposes of this blog, only the defendant’s issue of whether the trial court improperly attributed more than 20 grams of heroin to the defendant at sentencing will be discussed. 

Does the Weight/Type of Drugs Matter for Determining a Defendant’s Sentencing Guidelines?

Yes. A defendant’s sentencing guidelines can be dramatically affected by the weight and type of drug that was involved. This is true in Pennsylvania too. In Pennsylvania, a defendant’s guidelines can be substantially different depending on how much heroin he possessed. For example, let’s assume that a defendant is convicted with Possession with Intent to Deliver with 50 grams of heroin and that he has no prior record. His guidelines on the case would be 22-36 months +/- 12. However, if this same defendant was convicted with 49 grams of heroin, his guidelines would be 9-16 months +/- 9 months. As one can see, the weight of the drugs is significant and one gram can make a huge difference in determining one’s sentencing guidelines. 

The federal guidelines are no different. In the instant case, the defendant was arguing that the evidence only showed that he possessed 15 grams of heroin. This is significant because per the federal sentencing guidelines, that would make his offense graded as a level 14. However, if the drugs had a weight of 30 grams (as alleged by the Government), then the offense is graded as a 16. Assuming the defendant was a zero (which is unclear from the Third Circuit’s opinion), his guidelines would have been 15-21 months if it was just 15 grams. However, if it was actually 30 grams, then his guidelines would be 21-27 months. Therefore, the weight of drugs can have a significant impact on the guidelines regardless of whether your case is in federal or state court. 

The Third Circuit’s Decision 

The Third Circuit upheld the defendant’s conviction and sentence. Regarding the weight of the drugs, the Third Circuit found that there was an “ample basis for determining that the defendant was responsible for at least 20 grams of heroin.” The defendant would frequently bag 500 bags of heroin which amounted to 15 grams of heroin. Additionally, the defendant did this more than once. As such, the trial court found that the trial court did not err in attributing at least 20 grams of heroin to the defendant for purposes of sentencing. Therefore, his sentence will stand and he will not get a new trial.  

Facing Criminal Charges? We Can Help. 

Criminal Defense Lawyers

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.

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.

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

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.