PA Superior Court Reverses Order Granting Motion to Suppress For Lack of Specificity in Grounds

What is a Motion to Suppress? 

The Motion to Suppress is one of the first lines of defense in any case in which the defendant is charged with possessing some kind of contraband. For a defendant who is charged with the possession of guns or drugs, it may be possible to have the evidence excluded from trial and the charges dismissed if the defendant was subject to an illegal search or seizure. In cases where the prosecution is unable to show that police or other law enforcement officers found the evidence in a manner that complies with the requirements of the United Sates and Pennsylvania Constitutions, the evidence could be suppressed by filing a Motion to Suppress. However, Pennsylvania appellate courts have increasingly required defendants to be very specific when asserting the grounds for the Motion to Suppress in the trial court.

Commonwealth v. Banks

In the case of Commonwealth v. Banks, the Superior Court has reversed an order suppressing a firearm and K2 (synthetic marijuana) whichallegedly belonged to the defendant. The Court concluded that although the trial court found that a constitutional violation had occurred, the defendant’s attorney failed to specifically allege that particular constitutional violation either in his written Motion to Suppress or oral statement of the grounds for the Motion which was made prior to the hearing. Accordingly, the Court found that the Commonwealth did not have a fair opportunity to respond to the alleged constitutional violation, and therefore the suppression order should be reversed.

Banks involved a parole search by Pennsylvania State Parole Agents. According to the agents involved, the Parole Board received an anonymous tip that Banks was violating his parole. Based on the tip, two agents went to Banks’ house and knocked on the door. When Banks emerged from the house, the parole agents questioned him on the front porch. They did not see any contraband in the house when the door was open, and they did not enter the house until after they spoke with Banks. Of course, when the agents asked whether Banks had anything in his house which would violate his parole, Banks freely told them that he had a gun and some synthetic marijuana in the house. Following Banks admissions, the agents entered the house and found the contraband. They then called the police. The police obtained a search warrant and recovered the items.

Standards for Probation Searches and Parole Searches

In Pennsylvania, probation officers and parole agents may conduct two types of searches. They may always make routine home visits in order to check on the probationer or parolee and look for any obvious parole violations. Home visits are limited to a plain-view inspection of a residence. Additionally, if they have reasonable suspicion of a parole violation, then parole agents may conduct a full search of the parolee’s residence. In general, anonymous tips do not provide reasonable suspicion because there is no basis for believing them to be trustworthy. Therefore, Banks’ attorneys filed a Motion to Suppress alleging that the firearm and K2 should be suppressed because the parole agents conducted a home search without reasonable suspicion. They further argued that the search was not part of a routine home visit because the agents went out to the house specifically to investigate the anonymous tip.

The trial court disagreed with Banks’ lawyers in part. The court found that the agents violated Banks’ rights, but for different reasons than those alleged in the Motion to Suppress. It found that the agents did not conduct a home search until after Banks confessed to having a gun and synthetic marijuana, and once Banks confessed, the officers clearly had reasonable suspicion to enter the house. However, the court found that the officers conducted the equivalent of a “Terry” stop on Banks by ordering him to come out of the house and submit to their questions. Therefore, the officers were required to have reasonable suspicion for the stop. Because the stop was based entirely on an anonymous tip, the officers did not have reasonable suspicion, and the contraband that they found was the fruit of the poisonous tree and should be suppressed.

Specificity in Motions to Suppress

On appeal, the Superior Court reversed. The Superior Court found that Banks’ lawyers had failed to comply with Rule 581(D) of the Pennsylvania Rules of Criminal Procedure. Under the rules, the defense must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” In their written motion and subsequent oral grounds, the lawyers mentioned only the suspicion-less search of the residence. They never made any allegation that the interrogation on the porch was conducted without the requisite level of reasonable suspicion. Therefore, the Superior Court held that the Commonwealth was not properly on notice of the grounds for the motion and did not have a fair opportunity to respond. The Court reversed the granting of the motion and remanded the case for trial. It is unclear whether Banks will be able to amend the grounds and re-litigate the motion in the trial court. However, his lawyers will almost certainly try.

Banks is highly illustrative of the fact that the Superior Court is not currently very sympathetic to criminal defendants. The case also shows the importance of litigating in the trial court with a careful focus on the Rules of Criminal Procedure and an eye on making sure that the defendant’s rights are protected in the event of an appeal by either side. If an appellate court can avoid a difficult issue such as whether a gun was properly suppressed by finding waiver on the part of the defense, an appellate court will often do so. Judges do not want to suppress guns, and they will look for ways to avoid doing so. Therefore, it is important to make sure that all possible grounds for a motion to suppress are covered both in the written motion and orally prior to trial. It is also critically important to take all possible steps to protect the record for appeal, which means making appropriate objections and motions so that they are not waived in the event the defendant is convicted at trial.

Award-Winning Philadelphia Criminal Lawyers

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully represented thousands of clients in both trial and post-trial proceedings. We have won motions to suppress guns, drugs, and other contraband. We will do everything we can to fight for you and obtain the best possible result at trial or on appeal. Call 267-225-2545 for a free criminal defense strategy session today.

PA Superior Court Finds Justification Defense Limited but Available in Felon in Possession of Firearm Case

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

Self-Defense and Justification May Provide a Defense to Felon in Possession of a Firearm Charges

The Pennsylvania Superior Court has just ruled that the defense of justification may be available as a defense against illegal gun possession charges. However, the court concluded that the defense is strictly limited only to the time during which the defendant was legally acting in self-defense. In Commonwealth v. Miklos, the defendant was convicted of a Violation of the Uniform Firearms Act under 18 Pa.C.S. Sec. 6105 for possessing a firearm which he wrestled away from a drug dealer who attempted to rob him. On appeal, the court held that although Miklos was justified in taking the gun from the drug dealer, the conviction should be affirmed because Miklos continued to possess the gun for some time after the altercation had ended.

The facts of the case are relatively straight forward. Police officers in Allegheny County arrived at the scene of a shooting and found a white male dying from a gunshot wound on the sidewalk. The soon-to-be-decedent, through a hearsay exception called the dying declaration exception, told the police that the person who shot him was named Dave. The victim had pills and $757 on him. Following some investigation, an Allegheny County District Attorney’s Office detective learned that the eventual defendant, a man named David Miklos, was an associate of the decedent. Accordingly, police arrested Miklos and interviewed him.

Miklos, who had not watched my video on why you should speak with an attorney before giving a statement to the police, waived his Miranda warnings and gave a statement to detectives. Miklos told the detectives that he would regularly buy or sell pills from or to the victim. On the day in question, Miklos went to buy pills, and the victim pulled a gun and began to rob him. The victim began to go through Miklos’ pockets. Miklos seized an opportunity to grab the gun, and the gun went off during the ensuing struggle, fatally wounding the decedent. Miklos fired the gun a second time after the decedent continued to lunge towards him.

After the shooting, Miklos moved the victim’s body from underneath the wheels of the car they had both been in, took $1,100 from the victim, picked up the shell casings, got into the victim’s car, and drove away. He threw the firearm and shell casings off a bridge. At trial, Miklos testified to roughly the same version of events.

Miklos waived his right to a jury trial and proceeded by way of bench trial. In a bench trial (also called a waiver trial), the trial judge makes the decision as to guilt or innocence instead of a jury. The judge found Miklos not guilty of homicide, but guilty of VUFA 18 Pa.C.S. Sec. 6105, which is the Pennsylvania statute which prohibits felons and people with other criminal convictions from possessing a firearm. Miklos had prior criminal convictions which prevented him from legally possessing a firearm.

On appeal, Miklos challenged the sufficiency of the evidence for his conviction on the VUFA 6105 charge. Miklos argued that the evidence was insufficient to sustain his conviction. He argued that he lacked the requisite intent to possess the gun because he only came into possession of the gun during a struggle in which he was acting in self-defense. He argued that his brief possession of the firearm was merely to remove it from the decedent’s control, which he was justified in doing because the decedent was pointing it at him and trying to rob him.

The court rejected Miklos’ argument. The court agreed that Miklos was justified in grabbing the gun during the struggle in order to defend himself, but the problem for Miklos was that after the struggle, the gun fell to the ground and he picked it back up. The court opined that VUFA 6105 is a continuing offense and that Miklos’ possession of the gun could be justified for part of the time but not all of the time. If that is the case, then Miklos could still be convicted of the crime. Therefore, although Miklos’ initial possession of the gun during the struggle was justified under self-defense principles, the justification defense did not extend to Miklos’ decision to pick the gun back up, drive away, and dispose of it. Therefore, the evidence was sufficient to affirm the conviction. Nonetheless, it is clear that under the right circumstances, justification and/or self-defense may provide a defense to gun charges even where the defendant is legally prohibited from possessing a gun.

If you are charged with the illegal possession of a gun or other weapons offense, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. Our Philadelphia gun lawyers have successfully defended thousands of cases. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.  

PA Superior Court Rejects Search Warrant Issued on Word of Unproven Confidential Informant

The Use of Confidential Informants in Drug Cases

It is not a secret that the police often use confidential informants in the investigation of narcotics offenses. However, even when police make arrests and prosecutors bring charges based on evidence obtained by confidential informants, the identity of the confidential informant and extent to which police have used the CI in the past often remain a secret. The use of confidential informants is particularly prone to abuse. In cases where courts do not require prosectors to provide information about the identity of the confidential informant and proof of the CI's reliability, the defense is left with few options for challenging or verifying the testimony of the police officer about the evidence allegedly obtained by the CI.

Instead, officers are routinely permitted to testify, often without specifics, that the confidential informant has provided reliable information in the past and should therefore be trusted now. Likewise, despite the constitutional right to cross-examine one’s accusers in a criminal case afforded by the Confrontation Clause, Pennsylvania courts have increasingly accepted police and prosecution arguments that revealing the identity of the confidential informant in any case would jeopardize the safety of the confidential informant. Therefore, courts often deny defense attempts to learn any information about the confidential informant and deny motions to reveal the CI's identity. 

Confidential Informants Must Be Reliable In Order to Provide Probable Cause

In Commonwealth v. Charles Manuel (likely no relation to the World Series-winning Phillies manager), the Pennsylvania Superior Court appears to have reached its limit. In many cases, judges take an officer’s word for it on whether the CI has been reliable and whether the CI’s safety would be jeopardized by disclosure to the defense. In Manuel, the Superior Court held that the fact that the CI provided information on one prior occasion which led to an arrest did not sufficiently establish that the CI was reliable enough for police to obtain a search warrant based on the CI’s word alone.

In Manuel, police obtained a search warrant for the defendant’s house based solely on the word of a confidential informant. The confidential informant told officers that he or she had been to the defendant’s house and observed a marijuana grow operation. Police had also used the CI on one prior occasion, and the prior use of the CI led to an arrest. At the time of the investigation, however, the charges stemming from the prior investigation were still pending and had not been adjudicated. Accordingly, officers could not establish that the CI’s prior information was reliable enough to lead to an actual conviction. Finally, officers asserted that they had corroborated the CI's allegations because the CI told the officers the names of the occupants of the house. 

After officers checked real estate records and confirmed that the CI had correctly identified the owner of the house, officers applied for a search warrant. In the warrant, the officers indicated that the CI was reliable because the CI’s prior information had led to an arrest and that the public records check provided corroboration of the CI’s allegation that officers would find a grow operation. Because officers wrote that the CI observed the alleged marijuana grow operation, a magistrate granted a search warrant for the property. Of course, when officers executed the search warrant, they did find a marijuana grow operation. The trial judge denied the ensuing motion to suppress, and the defendants were convicted of Possession with the Intent to Deliver marijuana.

On appeal, the Pennsylvania Superior Court reversed the defendants’ convictions. The Court ruled that the trial judge should have granted the motion to suppress because the warrant was lacking in probable cause. In many cases, the word of a confidential informant may be enough to obtain a search warrant. The court noted, for example, that an informant’s tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity. However, there must be some real basis for believing the CI’s information to be reliable. In many cases, the police will use the CI to conduct controlled buys or conduct some other investigation of the defendant in order to corroborate the CI’s allegations. Once the allegations have been corroborated, the officers may obtain a valid search warrant.

Here, however, the officers simply failed to corroborate the allegations of the confidential informant, and there was nothing to suggest that the CI was in fact reliable. Although there is no magic number of arrests or convictions for which a CI must have previously provided information in order to be deemed reliable, it is clear that one prior arrest is not enough. The court must evaluate the totality of the circumstances, but in the absence of some corroboration, one prior arrest is likely insufficient. Because the information from the CI failed to establish probable cause, the warrant was defective. Accordingly, the Superior Court reversed the defendants’ convictions and the trial court’s ruling denying the motion to suppress.

Our Philadelphia Criminal Defense Lawyers Can Help With Drug Charges

Goldstein Mehta LLC - Philadelphia Drug Lawyers

If you or a loved one are under investigation or facing drug charges, we can help. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC today. Our defense attorneys have extensive experience fighting drug charges in Pennsylvania and New Jersey. We have obtained successful results in cases involving alleged observed drug transactions, expert witnesses, and controlled buys involving confidential informants. Call 267-225-2545 for a free, 15-minute criminal defense strategy session.

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Can the police search a guest in a home when executing a search warrant?

Can The Police Search Me If I Am A Visitor In A House? 

A search warrant for a particular location gives the police broad authority to search within that location for evidence of contraband like drugs, guns, and other incriminating items. There are, of course, limits, and in Pennsylvania, even searches which are supported by a warrant may be subject to challenge with a Motion to Suppress. In addition to the possibility of attacking the legality of the warrant itself, there may be other grounds for suppressing the results of a search even if the police had a warrant in cases where the police officers exceed the scope of the warrant.

For example, even when the police have a search warrant, the authority to search is generally limited to areas within the property where the police could reasonably expect that the evidence being sought could be found. For example, if the police are looking for guns, then they could not search a container which is too small to contain a gun. Likewise, the police probably could not search the contents of your computer in order to find a gun unless the search warrant specifically gives them authority to analyze the data on the computer.

Searches of Visitors Pursuant to a Search Warrant for the House

Philadelphia Criminal Lawyer Zak T. Goldstein, Esq.

An important issue arises when there are guests present in a home when the police show up to execute a search warrant. As a general rule, under Pennsylvania law, the police may not search the physical person and clothing of the people in the home unless those people are identified in the warrant or the police have other independent probable cause to arrest those people and conduct a search incident to arrest. This means that if the police have a search warrant for the house, and you happen to merely be there when the police show up to execute the warrant, then the police may not search you and the clothing that you are wearing merely because they have a warrant for the house. If you are described in the warrant or they have existing probable cause to arrest you, then they could search you, but if you happen to merely be a guest in a property which is the target of a search warrant, the police do not have the authority to search you without more than just the warrant.

Although the Pennsylvania Constitution provides strong protections to visitors in a home even during the execution of a search warrant, it is important to note that the standard is different in federal court because the federal courts have determined that police may detain and potentially search everyone in a home during the execution of a search warrant for officer safety purposes.

Searches of Clothing and Bags in the House when Police Have a Warrant  

The issue becomes trickier when there are items of clothing or bags which could contain the contraband being sought which are not physically on the person in the house. This was the situation which arose on appeal in a recent case in the Superior Court, Commonwealth v. Petty. In Petty, the officers were executing a search warrant for drugs in a house in Philadelphia. Mr. Petty happened to be a guest in the house, and when police entered the house, Petty was in bed in the rear bedroom. Unfortunately for Mr. Petty, he did not have his pants on. Police ordered Petty out of the bed, and as Petty complied and tried to put on his pants, which had been lying on the floor, police first took the pants before Mr. Petty could pick them up, and the police searched them, recovering drugs.

Petty’s criminal defense lawyer filed a motion to suppress the drugs, alleging that the police in effect had searched his person because the police knew that the pants were his. Because police had no prior information on Petty, this search would have exceeded the scope of the warrant because Petty was not identified in the warrant. Therefore, police did not have authority to search Mr. Petty or his clothing.

The Philadelphia Municipal Court granted the motion to suppress, but unfortunately for Mr. Petty, the Superior Court reversed. The Superior Court concluded that the search was permissible because police officers who are executing a search warrant have the authority to search any container which could contain contraband. The court noted:

Holding that clothing removed from a person and placed nearby is an extension of his person rather than simply an article of personal property on the premises interjects an element . . . that requires police to guess whether items in proximity to a person not identified in a warrant would soon be used by that person. Because Appellee did not physically possess the pants when officers found them, police were authorized to search them.

Our Philadelphia Criminal Defense Lawyers offer a 15-minute, complimentary criminal defense strategy session. We know that picking up the phone and calling an attorney can be intimidating, so in this video, Attorney Goldstein explains what you can expect when you call us. Call 267-225-2545 to speak with one of our criminal defense lawyers.

Although Petty lost on appeal, the Superior Court’s decision reaffirms the holding that police may not search guests in a home merely because they have a warrant to search that home. As always, if you are facing criminal charges, it is critical that you hire a criminal defense attorney who focuses his or her practice on criminal law and stays on top of new developments in the law. If you are facing charges in Pennsylvania or New Jersey, call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.