Philadelphia Criminal Defense Blog
Anonymous Tip Cannot Provide Reasonable Suspicion for Police Stop
Can the the police stop someone based on an anonymous 911 call?
The Pennsylvania Superior Court has just decided the case of Commonwealth v. Mackey, once again holding that an anonymous tip of criminal activity, no matter how serious, does not provide police officers with the reasonable suspicion necessary to stop, arrest, or search a suspect. This is true even when the tip is for a person with a gun on a SEPTA bus. Although this has long been settled law, trial courts routinely attempt to disregard this rule in cases involving guns and drugs.
Commonwealth v. Mackey
In Mackey, Philadelphia Police Officers received an anonymous radio call for a person with a gun on a specific SEPTA bus. The radio call further described the person as “a black male wearing a white T-shirt and a flowered hat.” The officer who received the tip responded immediately, stopped the bus, and boarded the bus. Upon boarding the bus, which contained 50 to 60 passengers, the officer saw the defendant on the bus wearing a pink and green flowered hat and a shirt that was white on the back and black on the front. The officer testified that the hat was extremely distinctive in that it was a bucket hat patterned with pink and green flowers.
As soon as the officer saw the defendant and realized that the defendant matched the description from the anonymous radio call, the officer pulled his gun, pointed it at the defendant, and ordered him to raise his hands. The defendant sat up straight while the other passengers ducked for cover. The officer then handcuffed the defendant and removed him from the bus. He testified that as the defendant was being escorted from the bus, he waddled in a strange way, suggesting that he might have been walking that way to keep a gun from falling out of his loose-fitting pants. Once they were off the bus, the officer frisked the defendant and found a gun. He arrested the defendant and charged him with various gun charges.
Motion to Suppress the Firearm
The defendant filed a motion to suppress, arguing that under well-established case law, the police did not have the right to stop him and frisk him based on a totally anonymous radio call. At the evidentiary hearing for the motion to suppress, the officer was unable to provide any additional information about the radio call relating to who called it in. The officer also could not provide any specific reason for why he believed the call to be trustworthy prior to stopping and searching the defendant.
The trial court denied the motion to suppress. The Commonwealth and the court relied on the fact that the tip contained a great deal of detail and that the defendant waddled in a strange way while exiting the bus. The Commonwealth also stressed that the defendant sat up very straight while everyone else on the bus ducked for cover. The court denied the motion, found the defendant guilty following a bench trial, and sentenced him to 2 to 5 years in state prison followed by three years of probation.
Mackey's Appeal to the Pennsylvania Superior Court
The defendant immediately appealed, and on appeal, the Superior Court reversed the conviction and the denial of the motion to suppress. The Superior Court heavily emphasized the difficulty in these cases. On one hand, police are fully expected to respond to a 911 call for a person with a gun, and the failure to do so could have disastrous consequences. At the same time, an anonymous radio call simply provides the police with no way to determine whether the call is genuine and reliable. If such a call provides the police with the basis for stopping and searching a suspect, then there are few protections for anyone as the police would be able to stop a person based on a prank phone call or even where another police officer has anonymously called 911 in order to provide the basis for the stop.
The Superior Court recognized that a long line of cases, including Commonwealth v. Jackson and Commonwealth v. Hawkins, have repeatedly held that the police may not conduct a stop based on anonymous information. The Commonwealth has repeatedly asked the courts to find a public safety or firearms exception to the warrant requirement in these cases because of the risk created by firearms, and the courts have unanimously rejected such an exception as unconstitutional. This case was no different. Accordingly, the Superior Court found that the officer did not have reasonable suspicion to stop the defendant. Finally, the Court found that the defendant was immediately seized when the officer entered the bus and pointed a gun at him. Because the officer only found the gun and noticed the waddling after stopping the bus, boarding it, and pointing a gun at the defendant, the waddling and strange behavior could not be used to provide reasonable suspicion because it happened after the illegal seizure. Accordingly, the Court reversed the denial of the motion to suppress, vacated the firearms convictions, and remanded the case for a new trial without the suppressed guns.
Cases like Mackey are extremely important because they protect citizens from unconstitutional police searches even in cases involving charges as serious as illegal gun possession charges. They also prevent Pennsylvania citizens from being harassed and searched based on unreliable or even knowingly false information by requiring the police to show some evidence of reliability in the information before acting on it. At the same time, the officer’s hands were not totally tied. The officer likely would have been justified in getting on the bus and asking Mackey if he could ask him a few questions. If Mackey then acted nervously, walked strangely, or the officer observed a gun shaped bulge, the officer then may have been able to conduct the frisk lawfully. Instead, the officer immediately pointed a gun at the defendant without any basis for believing the tip, and this is particularly problematic given the fact that it is legal to carry a gun with a permit in Pennsylvania.
OUR PHILADELPHIA CRIMINAL DEFENSE LAWYERS CAN HELP YOU WITH WEAPONS AND FIREARMS OFFENSES
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. We have won countless cases involving firearms and other weapons offenses at the prelminary hearing, motion to suppress, and trial court levels. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.
Speedy Trial Motion Granted in Prescription Fraud Case, Not Guilty Verdict in Domestic Assault Case, and Other Recent Case Results
Our Philadelphia criminal defense attorneys have continued to obtain successful results in the courtroom. In the last two months, our defense attorneys have obtained acquittals and dismissals at trial and in preliminary hearings in criminal cases and successfully defended Protection from Abuse (PFA) Petitions. Some of our notable recent results include:
Commonwealth v. T.T. – Speedy Trial Motion Granted in Prescription Fraud Case Due to Delay in Arresting Defendant.
The client was arrested and charged with Forgery, Identity Theft, Possession With the Intent to Deliver, and related charges for allegedly forging Oxycodone and Percocet prescriptions and attempting to have them filled at local pharmacies. The magistrate judge initially set bail at $100,000, and the client’s family immediately hired Goldstein Mehta LLC. Attorney Goldstein moved for a bail reduction at the first listing of the preliminary hearing, and the Municipal Court judge promptly reduced bail to $25,000. Attorney Goldstein then renewed the bail motion in the Court of Common Pleas, and the Court of Common Pleas reduced bail even further, allowing the client to be released for a bail payment of $670.
Attorney Goldstein then defended the client at the preliminary hearing. At the preliminary hearing, an Agent for the Pennsylvania Attorney General’s Office testified that she had obtained records indicating that the defendant had attempted to fill forged prescriptions in various names on multiple occasions. However, the Agent had not actually viewed the defendant filling any prescriptions herself. Accordingly, the Municipal Court Judge held the case under advisement to determine whether the agent had sufficient personal knowledge of the allegations or whether the case should be dismissed because the Commonwealth’s entire case at the preliminary hearing was hearsay.
In addition to moving to dismiss the case due to the excessive hearsay, Attorney Goldstein also moved to dismiss the case for a violation of the client’s right to a speedy trial under Rule 600. Rule 600 requires that the Commonwealth bring a defendant to trial within 365 days from the filing of the criminal complaint. However, Rule 600 has a number of exceptions and is often not strictly enforced in cases where the Commonwealth can show that it was not the prosecution’s fault that trial was delayed. Here, the Agents conducted their investigation and filed the criminal complaint in 2014. When they first filed the complaint, they attempted to arrest the defendant, but he was not home. The police then failed to exercise due diligence in trying to find the defendant and bring him to trial, and he was not actually arrested until 2017. Accordingly, Attorney Goldstein moved to dismiss the case due to this pre-arrest delay. When police fail to arrest a defendant within 365 days from the filing of the Complaint, Rule 600 and the case of Commonwealth v. Webb require that the case be dismissed unless the Commonwealth can show that the police executed due diligence in trying to find the defendant and execute the arrest warrant. Here, there was no evidence that the police had diligently attempted to serve the warrant. Therefore, the Municipal Court judge dismissed the case with prejudice at the preliminary hearing for the speedy trial violation, meaning the Commonwealth cannot re-file the charges.
Commonwealth v. A.W. - Motion for Reconsideration of Probation Violation Sentence Granted
The client was found in technical violation of probation for theft and drug possession while represented by a different attorney. The probation judge sentenced A.W. to 11.5 - 23 months in custody. A.W. retained Goldstein Mehta LLC, and our attorneys immediately filed a motion to reconsider the sentence within ten days as required by the Pennsylvania Rules of Criminal Procedure. The client's back judge scheduled a hearing on the Motion to Reconsider, and prior to the hearing, we were able to work with the client's family to locate a drug treatment faciity which she could attend if released. Once our attorneys presented the probation judge with the treatment option, the judge reconsidered the sentence and granted immediate parole to treatment. Our defense attorneys were able to help the client avoid a lengthy jail sentence.
PFA Litigation – Protection from Abuse Petition Dismissed for Lack of Jurisdiction
Attorney Goldstein successfully moved to have a protection from abuse Petition dismissed at trial for lack of jurisdiction. The plaintiff alleged that she had had a sexual relationship with the defendant and that the defendant subsequently threatened her at a party. The PFA Act allows a plaintiff who claims that they were the victim of abuse to obtain an emergency ex parte protection from abuse order which prohibits the defendant from having any contact with the plaintiff. This order can be extremely problematic for a defendant as it can damage the defendant’s reputation, require the defendant to relinquish legally owned firearms, and can even require the defendant to be evicted from a shared residence. Although the initial order may be granted on an emergency basis without a hearing, the defendant has the right to a trial on whether the allegations are true and a final order is necessary. At the trial, the plaintiff must show that the PFA Court has jurisdiction, that abuse occurred, and that a restraining order is necessary to prevent abuse from occurring.
Here, Attorney Goldstein was able to have the Petition dismissed for lack of jurisdiction. Although the initial Petition alleged that the defendant and plaintiff had a consensual relationship, the defendant testified on cross-examination that the relationship had not been consensual. Knowing that the Superior Court has repeatedly held that PFA jurisdiction only exists in cases involving domestic partners, meaning household members, family members, and people in consensual, dating relationships, Attorney Goldstein immediately moved for dismissal of the Petition for lack of jurisdiction. The Family Court judge agreed and dismissed the Petition, thereby vacating the restraining order.
Commonwealth v. R.B. – Client was charged with various gun charges, including Violation of the Uniform Firearms Act Sec. 6106, 6108, and 6105. Our criminal defense lawyers successfully moved for the case to be dismissed after the Commonwealth was repeatedly not ready to proceed for the preliminary hearing.
Commonwealth v. R.T. – Unsworn Falsification Case Dismissed at Municipal Court Trial
The client was charged with Unsworn Falsification to Authorities for allegedly lying to police about being robbed in order to cover up a drug deal gone wrong. The police alleged that the defendant had not been robbed and had instead made up a story about being robbed at gunpoint in order to try to get money back which was stolen in a drug deal. The client retained Attorney Goldstein, who promptly requested all of the discovery in the case, including documents from Cherry Hill. The Commonwealth never successfully obtained the police reports from the other jurisdiction for two trial listings, so Attorney Goldstein moved to dismiss the charges. The Philadelphia Municipal Court judge dismissed the case for lack of prosecution.
Commonwealth v. Z.B. – Detainer Lifted and Client Sentenced to Time Served on Section 17 Detainer.
The client had previously pleaded no contest as part of a Section 17 pre-trial diversionary program to knowing and intentional possession of a controlled substance in Montgomery County. After getting arrested again for the same charge in a different jurisdiction, the probation officer took the client into custody and lodged a probation detainer. The client retained Goldstein Mehta LLC, and our defense attorneys immediately filed a Motion to Lift the Detainer, arguing that Section 17 probation does not give the sentencing judge the authority to lodge a probation detainer. Instead, the judge must schedule a hearing and either continue the probation or impose a judgment of sentence. In this case, the judge had not scheduled the probation violation hearing for months. After receiving the motion and recognizing that the law was unsettled as to whether Section 17 probation gives the authority to lodge a probation detainer, the judge moved the probation violation hearing up by two months. The client then stipulated to the probation violation in exchange for a sentence of roughly time served and was released shortly thereafter. By filing a creative motion on the client’s behalf, our defense lawyers were able to save the client months in jail.
Commonwealth v. J.B. – Probation Detainer Lifted, Full Acquittal Obtained in Domestic Assault Case
The client was charged with Simple Assault, Terroristic Threats, Recklessly Endangering Another Person, and other related charges in the Philadelphia Municipal Court for allegedly assaulting his girlfriend. The client was on probation for similar charges, so the probation officer took the client into custody and lodged a probation detainer. If the client had done nothing, he would have had to stay in jail until the new case was resolved. Fortunately, the client retained Goldstein Mehta LLC, and our defense lawyers promptly filed a Motion to Lift the Probation Detainer with the client’s back judge. By putting together a thorough mitigation packet showing the defendant’s exemplary work record, successful compliance with probation other than the new charges, and extensive family and community support, our lawyers were able to have the client’s probation detainer lifted so that he could fight the case from out of jail.
We were then able to obtain a full acquittal for the client at trial. By cross-examining the complaining witness on the inconsistencies between her testimony at trial and the statement she had given to police and showing that she had a motive to fabricate the allegations, our attorneys were able to convince the Municipal Court judge that the complainant should not be believed. This was particularly true in light of the complainant’s lack of visible injuries and the fantastical nature of her allegations. Accordingly, our defense attorneys successfully had the client’s probation detainer lifted and obtained a full acquittal at trial.
Commonwealth v. V.F. – Possession with the Intent to Deliver Charges Dismissed at Preliminary Hearing
V.F. was charged with Possession with the Intent to Deliver and Possession of a Small Amount of Marijuana. Philadelphia narcotics officers alleged that they observed the client receive money from another person in exchange for small objects, which is the typical testimony that officers provide to describe what they believe to be a drug transaction. When officers stopped the man who handed the money to the defendant, the man had marijuana in his possession. Officers then arrested the defendant and found money, but they did not find any matching marijuana. Attorney Goldstein argued that the felony PWID charge should be dismissed because there was insufficient evidence to show that the defendant had sold the marijuana. Instead, police simply could not say what the defendant had allegedly given to the man who had marijuana on him. Accordingly, the preliminary hearing judge dismissed the felony charge and remanded the case for a trial on the misdemeanor marijuana charge.
Commonwealth v. T.C. – PWID Charges Withdrawn at Trial after Seizure Analysis Showed Marijuana Fake.
AWARD-WINNING PHILADELPHIA CRIMINAL DEFENSE LAWYERS
If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Unlawful Possession of a Concealed Firearm Requires Intentional Concealment
The Pennsylvania Superior Court has just decided the case of Commonwealth v. Scott, holding that the charge of unlawful possession of a concealed firearm in violation of 18 Pa.C.S. § 6106 requires the Commonwealth to prove that the defendant intentionally, knowingly, or recklessly concealed the firearm. Thus, if the firearm became concealed by accident, then a criminal defendant would potentially have a defense at trial.
Commonwealth v. Scott
In Scott, police received a report of domestic violence in Westmoreland County. Detectives responded to the residence, and they eventually came into contact with the defendant. Officers asked the defendant to raise his hands so that they could see them, and then they arrested him for domestic violence. The officers next frisked the defendant for weapons. During the frisk, police found a Sig Sauer handgun in a holster that was located under the defendant’s t-shirt. The t-shirt was not tucked in. Instead, it was loose and hanging over the gun so that the gun was completely concealed.
The defendant testified that although the t-shirt was in fact concealing the firearm at the time of his arrest, he had not concealed the gun on purpose. Instead, he testified that earlier in the day his t-shirt was tucked in. At the same time, he was wearing a hooded sweatshirt, and when he took the hoodie off, the hoodie must have pulled his t-shirt out of his waistband. Thus, he testified that he accidentally concealed the gun and did not realize that it had been concealed.
The defendant also had an Act 235 Certification, which generally allows security guards to carry concealed firearms in the course of performing their duties. Police agreed that the defendant told them he was going to be returning to work shortly as a security guard for a pawn shop in Pittsburgh. He also planned to drive to a qualification shooting course later in the day for his seasonal job as a public safety officer with a local amusement park. The defendant did not, however, have a license to carry a concealed firearm, and he was obviously not at work at the time of his arrest.
The Trial Court's Ruling
The trial court found that Act 235 did not give the defendant the right to carry the firearm while not on duty and that the statute did not distinguish between an accidental concealment and intentional concealment of a gun. Accordingly, the trial court convicted the defendant of Possessing a Concealed Firearm without a license to carry in violation of 18 Pa.C.S. § 6106.
Possession of a Concealed Firearm in Philadelphia
Outside of Philadelphia, § 6106 is a misdemeanor of the first degree when a defendant does not have any other record and is not facing any other charges. In Philadelphia, § 6106 is almost always charged as a felony of the third degree because there is a separate crime of carrying a firearm on the streets of Philadelphia (18 Pa.C.S. § 6108). § 6108 is almost always charged along with § 6106, making § 6106 a felony of the third degree instead of a misdemeanor because 6106 is only a misdemeanor when the defendant is otherwise eligible to carry a gun. Pennsylvania appeals courts have consistently ruled that a defendant is not otherwise eligible for purposes of the statute when they are charged with an additional offense at the same time. Following the conviction, the trial court sentenced the defendant to 7 – 14 months of incarceration.
The Defendant's Appeal
The defendant promptly appealed his conviction. On appeal, he argued first that the Act 235 Permit gave him the right to carry the firearm without a permit. Second, he argued that the trial court erred in finding that § 6106 was a strict liability offense, meaning an accidental concealment would not provide a defense. The Superior Court rejected the first argument, but it agreed with the second. Therefore, the Superior Court reversed the defendant’s conviction.
What is an Act 235 Certification?
With respect to the Act 235 Certification, the Court quickly rejected the defendant’s claim. Section 6106 makes it unlawful for a defendant to “carr[y] a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter.” Section 6106 contains a number of exceptions to this general requirement, but possession of an Act 235 Certification is not one of them.
Instead, Act 235 requires privately employed agents who carry lethal weapons to attend an educational and training program established by the State Police Commissioner and provides for them to receive ‘certification’ when the program is satisfactorily completed. Thus, Act 235 provides additional requirements that a private security guard must meet in order to carry a gun at work; it does not give a private security guard the right to carry a gun when off-duty. Further, none of the other exceptions to 6106 such as those for law enforcement officers or private security guards applied to the defendant because the defendant was clearly not on duty at the time of his arrest despite his vague plans to go to work and training classes later in the day.
Section 6106 Requires Knowing, Intentional, or Reckless Concealment of a Gun
With respect to the second claim, however, the Superior Court agreed with the defendant and reversed his conviction. The Court ruled that Section 6106 does require the Commonwealth to prove a mens rea. Although the statute itself contains no mens rea requirement and appears to be satisfied solely by the possession of a concealed firearm, the Pennsylvania Crimes Code contains a general provision that in the absence of a specified mens rea in a statute, a court should read in a default mens rea of recklessness. Recklessness involves the conscious disregard of a known risk. Thus, in order to prove a violation of the statute, the Commonwealth must show that a defendant knowingly, intentionally, or recklessly concealed the firearm. Here, the defendant testified that the concealment occurred by accident, and the trial court stated on the record that it probably believed him. Therefore, the Superior Court reversed the defendant’s conviction and remanded it for a new trial.
Philadelphia Criminal Defense Lawyers for Gun Charges and Weapons Offenses
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. There are often defenses to gun charges ranging from motions to suppress, constructive possession, and accidental concealment. Our defense lawyers have successfully defended thousands of clients. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.
PA Supreme Court: Parole Agents May Frisk You Even If You Are Not On Parole
The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Mathis, holding that a parole agent may detain and frisk a non-parolee visitor to the parolee’s home while performing a routine home inspection if the parole agent acts on reasonable suspicion that the visitor is engaged in criminal activity and armed.
Commonwealth v. Mathis - Can a Parole Agent Search Someone Who Is Not On Parole During a Routine Home Visit?
In Mathis, parole agents conducted a routine check of a parolee’s home which was located in a high crime area in Dauphin County. When they arrived, they immediately recognized the strong odor of marijuana throughout the home. As they walked through the house, they observed the defendant, Mathis, receiving a hair cut from the parolee who they were there to check up on. The parolee identified the parole agents to the defendant, and the agents then questioned the parolee as to why the house smelled like marijuana. The agents also found an ashtray full of marijuana roaches in the front room, but they did not see anyone smoking marijuana.
While one of the agents questioned the parolee, the other agent monitored Mathis. Mathis repeatedly got up from his chair and walked to the kitchen, apparently checking text messages on his cell phone. The parole agents asked him to stop using the cell phone while they were there because he seemed nervous. They asked him to leave until they finished speaking with the parolee. Mathis began to leave, and as he gathered his belongings, one of the agents noticed that he picked up his jacket as if holding it up to his body like a football or a baby. Mathis appeared to try to put his body in between the agents and the jacket, and he continued to hold it in a strange manner. The agents also noticed a bulge coming from the jacket which was roughly the size and shape of a gun.
The agents became concerned for their safety, so they asked Mathis if they could pat him down. He refused, but one of the agents reached out and touched the jacket. The agent immediately felt what he believed to be a firearm. They then handcuffed Mathis, patted him down, recovered a bag of marijuana from between his feet, and recovered a handgun from the jacket. Because Mathis was prohibited from possessing a firearm due to his prior criminal record, the agents called the police. The police arrived, recovered the gun, and charged Mathis with gun charges, marijuana charges, and possessing drug paraphernalia.
Motion to Suppress
Mathis filed a pretrial motion to suppress the gun, arguing that the parole agents had no right to search him because he was not on parole. The trial court denied the motion to suppress, found him guilty of drug possession and gun possession, and sentenced him to thirty-two to sixty-four month’s imprisonment. Mathis appealed, and the Superior Court affirmed.
The Pennsylvania Supreme Court reviewed the case and upheld the decision of the Superior Court. The Court concluded that parole agents may conduct a Terry frisk under these circumstances for their own safety. Although parole agents may not act as police officers with respect to non-offenders or private citizens, they do have the right to protect themselves.
Parole agents are required to supervise offenders in part by conducting routine, unannounced home visits, thus risking exposure to a variety of potentially dangerous unknowns. Interactions with non-offenders are often going to occur during home visits, and parole agents have an obligation to make sure that the parolee is not living or associating with people who have been convicted of certain criminal offenses.
Parole agents are also legally classified as “peace officers,” giving them the power to make a lawful arrest upon reasonable suspicion of a felony and the authority to use deadly force to protect themselves and carry firearms. Because a parole agent has the authority to use deadly force for the protection of himself or herself and others, the agent has the authority to prevent the need for deadly force in the first place by conducting a Terry frisk when necessary.
Finally, the Court noted that the purpose of the Terry frisk is not to conduct an investigation or find evidence; instead, it is merely to check for deadly weapons so that the officer can do his or her job without fear of bodily injury. Accordingly, the Supreme Court concluded that a parole agent may conduct a frisk for weapons so long as the agent has reasonable suspicion to do so. Reasonable suspicion requires “specific and articulable facts” that criminal activity is afoot, and the authority to frisk also requires that the officer or agent have reason to believe that the suspect is armed and dangerous.
There Are Still Limits On Probation and Parole Searches
Unfortunately, the Mathis Court's decision serves to eliminate important privacy rights for anyone who associates with someone who is on state parole. If someone has the bad luck to be present at a parolee's residence when agents show up to conduct an unannounced search, that person will now be at risk of being searched by parole agents despite the fact that they are not even on parole. This is particuclarly true for anyone who lives with someone who is on state parole; that person will now have substantailly reduced privacy rights just by virtue of who they live with. However, some protections remain in that the parole agents are still required to have reasonable suspicion and cannot conduct a search for general investigatory purposes. Therefore, motions to suppress will likely still be brought in many of these cases.
Facing criminal charges? We can help.
If you are facing criminal charges, we can help. Our Philadelphia Criminal Defense Lawyers have successfully defended thousands of cases. We offer a free, 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attoreny today.