Philadelphia Criminal Defense Blog

Gun Charges, Motions to Suppress Zak Goldstein Gun Charges, Motions to Suppress Zak Goldstein

Potential Defenses to Gun Charges

Philadelphia Criminal Defense Lawyers for Gun Charges

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire explains some of the defenses to gun charges in Pennsylvania and New Jersey. If you are facing criminal charges, call 267-225-2545 or visit us at goldsteinmehta.com to schedule a free criminal defense strategy session.

We frequently help clients who are facing gun charges in Pennsylvania and New Jersey. In this video, Philadelphia criminal defense attorney Zak Goldstein explains three of the most common defenses to illegal gun possession charges. As a general rule, gun charges are particularly serious. They are almost always felony charges. In New Jersey, possession of a firearm without a permit carries a mandatory minimum of three years in jail even for a defendant with no prior record. In Pennsylvania, although there is currently no mandatory minimum for illegal possession of a firearm, the state sentencing guidelines typically call for jail time even for a first offense. Finally, in the federal system, gun charges carry extremely severe mandatory minimums. 

Fortunately, there are a number of potential defenses to firearms offenses. Three of the most common defenses include:

Philadelphia Gun Charges Lawyer Demetra Mehta

Philadelphia Gun Charges Lawyer Demetra Mehta

  • Possession - All gun charges require the prosecution to show that the defendant actually possessed or owned the firearm. Depending on the evidence, the prosecution may not be able to show that it was actually the defendant's gun or that the defendant ever possessed the gun. In cases where the defendant is arrested with the gun in a pocket or waistband, possession may not be the strongest defense.

    However, in cases where the defendant is not in actual, physical possession of the gun, the prosecution may not be able to prove possession. In order to prove possession of a gun that is not physically on the defendant, the prosecution will rely on the doctrine of constructive possession. Constructive possession requires the government to show that the defendant both had access to the gun and the intent to control it. This mean that it is not nearly enough for the government to show only that the defendant was found near a gun. This issue frequently arises in cases in which a person is stopped in a vehicle which turns out to have a gun in it. Without some additional evidence that the defendant both knew of the gun and intended to control it, the mere discovery of the weapon by the police may not be sufficient for the government to obtain a conviction.

  • Suppression - In any case involving a possessory offense, the prosecution must be able to show that the police found the evidence in a lawful manner. There are real limits on the authority of the police to stop individuals and search their belongings, including their cars and their homes. If the police were required to obtain a warrant prior to the search and did not do so, or they had no real basis for stopping and searching the defendant, then it may be possible to have the evidence suppressed and excluded from trial. In a gun case, if the police stopped and searched the defendant without reasonable suspicion or probable cause, the gun could be suppressed and the case could be dismissed.

  • Operability - In Pennsylvania, many gun offenses require the Commonwealth to send the gun to a lab for ballistics testing in order to prove that the gun was in fact a real gun and that it was operable. Both VUFA Sec. 6108 (possession of a firearm on the streets of Philadelphia) and VUFA Sec. 6106 (possession of a concealed firearm without a permit) only apply when the defendant possesses a real, operable gun. If the gun is actually a BB gun or air soft gun, or it cannot be made to fire without substantial repairs or alterations, then these criminal statutes may not apply. Therefore, the Commonwealth will have to prove that the gun was real and operable. In some cases where a complaining witness or police witness testifies that they saw the defendant with a gun but the gun was never fired and ultimately never recovered, the prosecution may not be able to prove that it was actually a real gun. If they cannot, then the defendant could be acquitted at trial by a judge or jury. This rule does not apply to the felon in possession of a firearm statute (VUFA Sec. 6105). 

We Can Help With Weapons Offenses in Pennsylvania and New Jersey

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Every case is different, and there are numerous firearms offenses and other weapons offenses in Pennsylvania and New Jersey. The statutes which often make carrying guns without a license illegal are often more technical and complex than one would expect. Although gun crimes and illegal firearms possession charges are extremely serious, there are often defenses to these charges. Our Philadelphia Criminal Defense Lawyers have the experience and skill to investigate your case, evaluate the evidence against you, and fight for the best possible result. Depending on your case, that could be a pre-trial dismissal, the suppression of incriminating evidence, an acquittal at trial, or a reduced sentence. Call 267-225-2545 for a free criminal defense strategy session with one of our Philadelphia gun lawyers. 

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PA Superior Court: If A Police Officer Says Stop, That’s A Stop

What makes an encounter with the police a stop? 

The past few years have seen a number of questionable appellate opinions in which courts have suggested that a person may not necessarily be stopped for Fourth Amendment purposes even when a police officer orders the person to stop. Today, the Pennsylvania Superior Court clarified the obvious and reiterated what the Pennsylvania Supreme Court has already found: when a police officer says stop, it’s a stop. In Commonwealth v. Morrison, the Court ordered the suppression of a firearm, finding that a reasonable person would not feel free to leave after being ordered by police to stop.

Commonwealth v. Morrison

In Morrison, the defendant was arrested and charged with various gun charges, including VUFA § 6105 (persons not to possess firearms), VUFA § 6106 (carrying a concealed firearm without a permit), and VUFA § 6108 (carrying a firearm on the streets of Philadelphia). The defendant’s arrest stemmed from an encounter with Philadelphia police officers which took place in January 2015. The defendant moved to suppress the gun, arguing that police did not observe the gun in plain view until he had been stopped and detained without reasonable suspicion. At the suppression hearing, officers testified that they were on patrol in Philadelphia in police uniforms and a marked patrol car. At around 8 pm, they received a radio call from an unknown source which indicated that a nearby store had been robbed at gun point. The radio call described the robbers as two black males wearing black hoodies, blue jeans, and masks.

Five minutes later, the officers saw the defendant and another gentleman walking about five blocks away from where the robbery occurred. Although the defendant was a black male in a black hoodie, the defendant was not wearing the clothing described in the radio call. Instead of wearing blue jeans, he was wearing gray sweatpants. Nonetheless, the officers slowly approached the two men, stopped the police car about five feet away from them, and got out of the car.

After getting out of the car, one of the officers told the men to stop. The man who was walking with the defendant stopped, but the defendant did not. He appeared nervous, turned his back to the police car, and slowly walked away from the officers. The other police officer repeated the command to stop, and the defendant finally stopped. Notably, the defendant never attempted to run. Once he stopped, the officers ordered him to take his hands out of his pockets. The defendant did so, and the officers soon noticed the handle of a black handgun conveniently sticking out of the his pocket. The officers also left the information that the defendant supposedly turned and walked away from them out of the various police reports that they prepared.        

Although the defendant did not match the flash description, the officers left key details out of the police reports, and the information provided by the radio call was entirely anonymous and unconfirmed, the trial court denied the motion to suppress the firearm. The court concluded that the interaction between the officers and the defendant did not rise to the level of a “stop.” Instead, the interaction was only a mere encounter. Further, the trial court concluded that the police had reasonable suspicion to stop the defendant because he partially matched the description in the anonymous radio call, appeared nervous, and attempted to walk away.   

Standards for Police Encounters

On appeal, the Superior Court reversed. The court started by noting that there are three types of police encounters. The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an “investigative detention” must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. An investigative detention is considered a stop, and it is commonly referred to as a Terry stop. Finally, an arrest or “custodial detention” must be supported by probable cause.

An investigative detention is less than the equivalent of an arrest, but it occurs when police take action which would make a reasonable person not feel free to leave. Although previous Superior Court opinions have implicitly suggested that an encounter may not be a stop solely because the police say “stop,” the Court in Morrison recognized the obvious: when the police tell someone to stop, no reasonable person in that position would feel as though they were free to leave. Accordingly, the defendant was clearly stopped as soon as uniformed, armed officers exited the vehicle and told the defendant to stop.

Because the defendant was stopped for Fourth Amendment purposes and subjected to an investigative detention, the police were required to have reasonable suspicion that the defendant was engaged in criminal activity. However, the Court found that the officers did not have reasonable suspicion because nervousness and slowly walking away from the police is not indicative of criminal activity. Further, the radio call did not provide the officers with reasonable suspicion to stop the defendant and recover the gun because the radio call was anonymous, unconfirmed, and lacking in detail, and the defendant did not even match the description in the call. The call indicated that the perpetrators of the alleged robbery were wearing jeans, and the defendant was wearing sweatpants. Therefore, the officers had stopped the defendant without reasonable suspicion prior to seeing the gun, making the gun the fruit of the poisonous tree. Accordingly, the Superior Court reversed the decision of the trial court and ordered that the gun be suppressed and excluded from evidence.   

The Consequences Of An Illegal Stop

It goes without saying that courts are reluctant to suppress guns. However, when the police stop or search someone illegally, the Fourth Amendment requires that the evidence be suppressed, meaning that it may not be used at trial. Morrison reaffirms that in order to convict a defendant of possessing contraband like drugs or a gun, the prosecution must be able to show that the evidence was obtained pursuant to a legal search and seizure. Further, Morrison is important because it clarifies that a person is stopped when the police begin issuing commands like “stop” which would make a reasonable person feel that he or she was not free to leave.

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Award-Winning Philadelphia Criminal Defense Lawyers

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended clients against gun charges, drug charges, and other possession of contraband cases in preliminary hearings, pre-trial motions to suppress, and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys. 

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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

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.

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

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

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.  

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