Philadelphia Criminal Defense Blog

Zak Goldstein 1/6/20 Zak Goldstein 1/6/20

PA Superior Court: No Basis for Stop Due to Mere Possession of Concealed Gun

The Pennsylvania Superior Court has decided the case of Commonwealth v. Price, holding that the police cannot stop you simply because they believe you have a concealed gun without some other basis for concluding that you are possessing the gun illegally or without a license to carry. This decision is not a surprise given the Pennsylvania Supreme Court’s holding in Commonwealth v. Hicks, and it is reassuring that the Superior Court is following the Supreme Court’s precedent and respecting the Second and Fourth Amendments.

Commonwealth v. Price

A Philadelphia Police Officer was working in an unmarked patrol vehicle with his partner when they received a radio call to respond to the 5100 block of Willows Avenue. According to the police, this is a high crime area, particularly for crimes of video. The radio call was for a black male wearing a white t-shirt and gray shorts. He was also driving a silver Lexus and carrying a firearm. There was no other information given to the police to suggest that he was doing anything with the gun or was not eligible to possess a gun.

At the motion to suppress hearing, the testifying officer stated that he and his partner arrived at the intersection of 51st and Willows Avenue within a minute of receiving the radio call. They then saw a silver Lexus facing westbound and stopped at stop sign. The Lexus then proceeded through the intersection and past the unmarked police vehicle. As the Lexus passed the officers’ car, one of the officers observed that the driver was a black male who was wearing a white t-shirt. The officers then turned their vehicle around and followed the Lexus until it pulled into a parking spot. The officers then stopped their vehicle and activated their lights.

One of the officers then exited the police car and approached the passenger side of the Lexus. One of the windows was down, and the officer could see that the driver, the defendant, was wearing gray shorts in addition to wearing a white t-shirt. The defendant had his hands on the steering wheel and did not respond when asked if he was carrying a firearm. One of the officers then walked to the driver’s side of the Lexus, opened the door, and asked the defendant to step out. The defendant complied with the officer’s request. He then stood up, and as he turned, the officer could see that he had a large bulge in the stomach area of his waistband. In response to seeing this bulge, both officers grabbed the defendant’s arms. One of the officers then felt the bulge and found “that it felt like a hard metal object.” The officers then handcuffed the defendant and removed from his waistband a Kel-Tec 9-millimeter gun.

As the officers were arresting the defendant, they were approached by a woman. She identified herself and told the officers that she was the one who called 9-1-1. She then pointed to the defendant and said “that’s him” and asked if they recovered the gun. The woman stated that she called 9-1-1 because she observed the defendant put an item in the trunk of a vehicle and that “he loaded bullets into a brown bag and placed that item into the trunk of the vehicle.” The woman was then taken to the police station where she gave a statement.

After speaking with the woman, the officers asked the defendant if he had any other bullets in the vehicle. The defendant responded that there were bullets in the trunk, and gave the officers written permission to retrieve them. In the trunk, the officers found a brown corduroy bag containing 41 live rounds of 9-millimetere ammunition, six blue latex gloves, and one pair of black leather gloves.

The defendant was then subsequently arrested and charged with possession of a firearm by a prohibited person (VUFA 6105), firearms not to be carried without a license (VUFA 6106), and possession of a firearm in the City of Philadelphia (VUFA 6108). Prior to trial, the defendant filed a motion to suppress arguing that he had been seized without probable cause or reasonable suspicion. At the hearing, the above stated facts were presented and entered into evidence. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. Afterwards, he proceeded to a non-jury trial where he was found guilty of the above offenses and sentenced to five to ten years’ incarceration followed by five years’ probation. The defendant then filed a timely appeal.

The Superior Court initially denied the defendant’s appeal, holding that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous. This would permit an officer to briefly detain him in order to investigate whether the person is properly licensed. This was known as the Robinson rule. After his appeal was denied, the defendant petitioned the Pennsylvania Supreme Court for allowance of appeal. On May 31, 2019, the Pennsylvania Supreme Court decided Commonwealth v. Hicks, and this decision overturned the Robinson rule. Because of this decision, the Supreme Court remanded the defendant’s case back to the Superior Court for further review in light of Commonwealth v. Hicks.

What Happened in Commonwealth v. Hicks?

For a more detailed analysis of Commonwealth v. Hicks, please see our blog “PA Supreme Court: Police Cannot Legally Stop You Just for Carrying a Gun.” (https://goldsteinmehta.com/blog/pa-supreme-court-police-cannot-legally-stop-you-just-for-carrying-a-gun) In Hicks, the Pennsylvania Supreme Court held that the police cannot stop someone just because they have a gun. As such, a trial court must look at the totality of the circumstances to determine whether there are additional facts that would warrant a lawful stop by the police. The fact that a defendant is possession of a firearm can play a role in that analysis, but it cannot be the sole reason why an officer stops a defendant.

The Superior Court’s Decision

In light of Hicks, the Superior Court reversed itself and found that the trial court improperly denied the defendant’s motion to suppress. The Superior Court held that because “there was no evidence that the police had reason to believe that [the defendant] was carrying a firearm illegally or was engaged in any other illegal activity” the police illegally stopped the defendant. As such, the gun that was obtained from his waistband cannot be used against him in his trial. The defendant’s sentence is also vacated and he will now get a new trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 12/25/19 Zak Goldstein 12/25/19

PA Superior Court: Constructive Possession Allows for Firearms Conviction Even When Firearm Not Immediately Accessible

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gomez, affirming the defendant’s conviction for gun charges even though the gun was not on him and was not immediately accessible to him because it was in a locked safe. The Court also affirmed the defendant’s conviction for receiving stolen property with respect to the firearm, which had been reported stolen, because it found that the circumstances showed a guilty conscience on the part of the defendant. This second part of the holding is important because it highlights the fact that mere possession of stolen property, including a gun, cannot support a conviction for theft or receiving stolen property. Instead, a defendant must have knowledge that the property was stolen.

Commonwealth v. Gomez

The defendant was stopped in Lancaster County, Pennsylvania while operating his vehicle. After he was stopped, he repeatedly refused to provide his license, registration, and insurance information. The defendant was not the sole occupant in the car as there were two other individuals in the car with him. According to the officers, the defendant and his companions were making furtive movements and were acting “strangely.” Specifically, the defendant called his attorney and also invited people on social media to come witness the stop by the police. His companions were flailing their hands and kicking bags. Based on these actions, the officers stated that they believed they were in danger. After repeatedly asking the defendant and his companions to exit the vehicle, the officers broke the window and physically removed them from the car.

The police then searched the vehicle. They found and recovered two firearms that had the defendant’s DNA on them. These firearms had previously been reported stolen. One of the firearms was recovered in a locked safe, while the other was found in the front center console. Also, the key to the safe was found on the defendant’s key ring. In addition to the firearms, the police also recovered heroin, fentanyl, methamphetamine, suboxone, marijuana, and other drug paraphernalia. The defendant was arrested and subsequently charged with possession with the intent to deliver (hereinafter “PWID”), various charges under the uniform firearms act (including persons not to possess a firearm (hereinafter “VUFA 6105”), receiving stolen property, and several traffic related offenses.

The Commonwealth chose to proceed under a bifurcated trial for the charges against the defendant. Specifically, the Commonwealth elected to try the defendant under the VUFA 6105 cases first and then would try him under the remaining charges. The reason the Commonwealth would do this is because they are then allowed to introduce the defendant’s prior conviction showing that he is prohibited from possessing a firearm. In the defendant’s case, he had a prior conviction for PWID which made him ineligible to possess a firearm.

The defendant chose a jury trial for the VUFA 6015 charges. At his trial, the above-mentioned facts were presented as well as his prior PWID convictions. Following the presentation of the evidence, the jury was instructed on the relevant law. Notably, defense counsel did not make any objections. At the conclusion of deliberations, the defendant was found guilty of the two charges. A few months later, the defendant proceeded with a bench trial on his remaining charges. The defendant stipulated to all the evidence presented at his previous trial. He was found guilty of the remaining charges. The defendant was subsequently sentenced to 12.5-25 years of state incarceration. The defendant then filed a timely post-sentence motion which was denied. The defendant then filed a timely appeal.

On appeal, the defendant made three arguments: first, that the evidence was insufficient to establish that he knew the weapons were stolen; second, that the Commonwealth failed to establish that he had actual possession of the gun that was found in the safe (he did not appeal his conviction for the firearm found in the center console); and finally that the trial court did not properly instruct the jury regarding possession of the firearm. For purposes of this blog, only the defendant’s second argument will be addressed.

Can I Be Convicted of a Possessory Offense Even if I am Not Actually Holding the Contraband?

Yes. You can still be convicted of a possessory offense even if you are not in actual physical possession of the contraband. Constructive possession is a legal term of art that allows a trier of fact to find that a defendant was in possession of the contraband even when they are not physically controlling it. To find that someone “constructively possessed” contraband, the finder of fact will analyze the facts to determine if the totality of the circumstances shows that the defendant was the possessor of the contraband. The trier of fact is allowed to rely on circumstantial evidence in making its decision too.

How Can a Prosecutor Prove that I Knew an Object Was Stolen?

Mere possession of a stolen good is not sufficient to convict a defendant of RSP. A prosecutor must prove beyond a reasonable doubt that the defendant knew the object was stolen or should have known that it was. To prove this, a prosecutor, like he can to prove possession, can use circumstantial evidence to show that a defendant knew or should have known an item was stolen. Prosecutors will often use the timing of a stolen good to show that a defendant had knowledge that it was stolen. For example, let’s assume that someone reports their car stolen at 12:00 PM. If a defendant was seen with the vehicle at 12:30 PM, a prosecutor can argue that he stole the car (or at the very least knew it was stolen) given the length of time between when the car was reported stolen and when the defendant was seen with it. This is just one example. Prosecutors can also argue that a defendant’s statement, how he was acting when he was arrested, alterations to the object, etc. can be sufficient proof to show that the defendant knew or should have known the object in question was stolen.

The Superior Court’s Decision

The Superior Court upheld the defendant’s conviction for illegally possessing the firearm in the safe. Regarding whether the evidence was sufficient to find that the defendant possessed the firearm, the court analyzed the facts of the case. The Superior Court found that even though that the gun was in the safe, and not immediately accessible to him, there was sufficient evidence to show that it was his firearm. Specifically, the defendant’s DNA was on the gun; he was in possession of the key to the safe where the gun was found; and the gun was found in his vehicle. As such, the Superior Court held that there was sufficient evidence to convict the defendant of illegally possessing the gun in the safe.

Additionally, the defendant’s other issues that he raised on appeal were also rejected. The Superior Court found that there was sufficient evidence to establish that he knew or should have known that the firearms were stolen. The Superior Court agreed with the defendant’s argument that there was not any direct evidence presented at trial that he knew the guns were stolen. However, the Superior Court found that there was sufficient evidence to establish that he knew or should have known they were stolen. In support of this, the Superior Court referenced the defendant’s prior convictions showing that he was not eligible to possess the firearms and his actions during the traffic stop. The Superior Court conceded “that this is not evidence that he knew the firearms in his possession were stolen…Nevertheless, these circumstances are sufficient to enable a fact-finder to infer that [the] defendant believed that the firearms were probably stolen.” Accordingly, he will be forced to serve his sentence and will not get a new sentencing hearing or a new trial.

Facing Criminal Charges? We Can Help.

Zak Goldstein 12/8/19 Zak Goldstein 12/8/19

Can the Police Search My Car?

Can the Police Search Your Car?

If the police searched your car and uncovered illegal contraband in Pennsylvania or New Jersey, you should speak with one of our Philadelphia criminal lawyers today. Our defense attorneys have won many motions to suppress and constructive possession trials in cases involving guns, drugs, and other illegally seized evidence. We will fight for your constitutional rights and to ensure that illegally seized items are not introduced into evidence against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

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Do Police Need a Search Warrant to Search a Car?

The legality of car searches by the police is frequently at issue in cases involving possessory offenses such as firearms cases and drug possession cases. In general, if the police conduct an illegal search or seizure, then the evidence obtained as a result of the illegal conduct could be suppressed. In many cases, the suppression of the critical evidence could lead to the dismissal of charges. However, the police typically have more authority for when they can search your car than for when they can search a house.

The general rule under the United States and Pennsylvania Constitutions is that law enforcement officers need a search warrant to conduct a search. However, the courts have created so many exceptions to this general rule that the rule essentially only applies to searches of houses or other types of residences and more recently, cell phones. Unsurprisingly, there are a number of exceptions which could permit a police search of a vehicle without a search warrant depending on the facts of the case.

Consent to Search the Vehicle

First, the police can always conduct a search when they have the consent of the owner or operator of the vehicle. If the police pull over a vehicle for a traffic infraction and are suspicious of the driver for some reason, they can always ask the driver for permission to search the car. If the driver gives them permission, then they may search the car and can use anything that they find as evidence in court. The only challenges which could be brought via a Motion to Suppress in this instance would be to the legality of the initial stop and whether the driver actually gave consent or whether the consent was fabricated or coerced.

Therefore, our advice is that you should not give permission or consent should the police ask if they can search your car. However, if the police decide to conduct a search anyway, you should not attempt to resist. Instead, it is best to remain calm while they conduct the search and speak with an attorney about your legal options once the encounter has ended.

Police Usually Need Probable Cause to Conduct a Car Search

Second, courts have developed an “automobile exception” to the warrant requirement. Under the United States Constitution, police officers and federal agents typically do not need a warrant to conduct a search of a vehicle. Instead, because of the inherent mobility of an automobile, they may search the vehicle if they have probable cause to do so. Probable cause means that it is more likely than not that the police will find contraband or some evidence of a crime. Thus, if police have probable cause, they do not have to obtain a warrant or consent prior to conduct a search.

An example would be a situation in which police pull a suspect over for swerving and upon approach, the officers believe the driver to be under the influence of alcohol. While questioning the driver, one of the officers smells alcohol coming from inside the actual vehicle. In that case, a prosecutor would argue that police have probable cause to enter the vehicle and determine the source of the odor because it was more likely than not that police might find spilled alcohol or a beer can which would be evidence in the subsequent DUI case against the driver.

Until recently, Pennsylvania took a more limited approach to the automobile exception. Previously, in order to evade the warrant requirement, prosecutors were required to show both that the police had probable cause to search a vehicle and that some sort of exigent circumstances applied, meaning that evidence could be lost should the police be required to obtain a warrant. However, in Commonwealth v. Gary, the Pennsylvania Supreme Court abolished the exigent circumstances requirement and adopted the federal automobile exception, meaning that police can now search a vehicle whenever they have probable cause to do so.

Although Gary is the law today, the Pennsylvania Supreme Court recently agreed to review whether Gary is correctly decided or whether law enforcement officers should have to obtain a search warrant prior to searching a car absent exigent or unusual circumstances. Therefore, it is possible that the current court could reinstate the rule that police must obtain a warrant prior to searching a car if they want the evidence to be admissible in Pennsylvania state court.

Other Exceptions Which Allow Law Enforcement to Search a Car

Third, there are a number of other potential scenarios in which the police can search a car without a warrant. For example, if the police end up arresting the driver of the car, then there are some circumstances in which the police may conduct a search of the car as a “search incident to arrest.” However, in Arizona v. Gant, the United States Supreme Court held that police may only conduct this type of search incident to arrest of a car when the police reasonably believe that they are likely to find evidence of the offense of arrest. This means that officers cannot automatically search a car as a search incident to an arrest for a suspended registration or suspended driver’s license. Instead, police must have some reason to believe they are going to find more evidence of the crime for which they arrested the driver in the vehicle.

Additionally, the police may, in some occasions, conduct an inventory search of a car if they are required to tow it after arresting or citing the driver. However, recent case law has substantially limited the authority of the police to conduct an inventory search of a car (commonly called a LIVESTOP in Philadelphia), and some of these inventory searches are now subject to challenge with a motion to suppress.

Police Can Sometimes Frisk A Car

Finally, police may also conduct a limited search of a vehicle if they have reasonable suspicion that the driver or passenger was engaged in criminal activity and that he or she was armed an dangerous. In that situation, the Terry doctrine allows them to conduct a “frisk” of the areas which were accessible to the driver to ensure that the driver will not have access to weapons if he or she is allowed to return to the vehicle. Of course, if the police find contraband or are able to see contraband while conducting the frisk, then they may enter the vehicle to retrieve the contraband and use it as evidence in a criminal prosecution under the plain view or plain feel doctrines.

There are other exceptions to these general rules and other issues which frequently come up such as K9 searches and the duration of time during which the police may detain a vehicle an conduct an investigation pursuant to a traffic stop. However, those issues will be the subject of future articles.

How A Philadelphia Criminal Lawyer Can Help

Clearly, there are a lot of exceptions which allow the police to search a car without a warrant, and we are likely at a point where the exceptions have begun to swallow the rule. This means that the answer to the question, “Can the police search my car?” is unfortunately that it depends on the circumstances. It is clear that police are not required to obtain a search warrant to search a car during a traffic stop. Instead, they are typically going to be required to make some sort of showing of either probable cause or reasonable suspicion in order to justify a search, and these searches are often subject to challenge with a motion to suppress.

If it can be shown that the initial stop was illegal, or that the police did not have actual reason to believe that they would find contraband in the car, it may be possible to have the evidence suppressed and excluded at trial. Likewise, if the police claim that the defendant consented to the search but the defendant and witnesses in the car disagree, it may be possible to prove that the consent was fabricated or coerced. Each case is different, and despite the elimination of the warrant requirement for vehicle searches, there are still real limits on the ability of the police to search a car. The bottom line is that illegally seized evidence usually cannot be used against you in court, and in many cases, it remains possible to challenge the warrantless search of an automobile.

What to Know about Police Car Searches in PA

If the police searched your car and found something illegal in Pennsylvania or New jersey, you need the services of one of our Philadelphia criminal defense lawyers. We have won countless motions to suppress and trials on gun and drug charges. We will fight to protect your rights and make sure that illegally seized evidence is not used against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

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Zak Goldstein 11/20/19 Zak Goldstein 11/20/19

PA Supreme Court: Gun's Serial Number Must Be Changed or Removed for Conviction of Possessing Firearm with Obliterated Serial Number

The Pennsylvania Supreme Court decided the case of Commonwealth v. Smith, holding that to convict a defendant of the crime of possession of a firearm with an altered manufacturer’s number (“VUFA 6110.2”), the serial number must have been removed or changed in a “material way” that makes it look like a different number, in whole or in part, to the naked eye. This decision is significant because in Philadelphia (and in other parts of Pennsylvania), prosecutors will routinely charge defendants with VUFA 6110.2 when there is even the slightest mark on the serial number.

Commonwealth v. Smith

On June 12, 2016, Pennsylvania State Police troopers initiated a traffic stop of a vehicle driven by the defendant. The defendant was stopped because his license plate was not illuminated. As the troopers approached the vehicle, they observed “furtive” movements by the vehicle’s occupants. The troopers requested the defendant’s license and registration, at which point either the defendant or his passenger opened the glovebox. When the glovebox was opened, the troopers observed a plastic vial containing marijuana. A subsequent search of the vehicle revealed a firearm, ammunition, and a clip under the driver’s seat. The manufacturer’s number on the firearm appeared to have been scratched, but it was still legible.

The defendant was arrested and charged with VUFA 6110.2, firearms not to be carried without a license, receipt of stolen property, possession of a controlled substance, and various traffic offenses. At the defendant’s stipulated bench trial, the Commonwealth introduced photographs of the firearm, which showed that the manufacturer’s number had multiple scratch marks. The parties did not dispute that the number was still legible. The trial court noted that the serial number showed clear signs of intentional tampering and wearing of the serial number and that the number was “clearly abraded.” As such, the trial court determined that the serial number had been, at a minimum, altered from its original state. The defendant was then found guilty and sentenced to three to six years incarceration. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

The Defendant’s Appeal to the Superior Court

The defendant appealed to the Superior Court, arguing that the evidence was insufficient to sustain his conviction because the manufacturer’s number, although scratched, was legible to the naked eye and thus the Commonwealth failed to establish that the number was “altered, changed, removed, or obliterated” as required by VUFA 6110.2. Specifically, the defendant argued that to be convicted of VUFA 6110.2 the serial number must be illegible to the naked eye. The Superior Court unanimously rejected the defendant’s argument. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s case.

What is VUFA 6110.2?

VUFA 6110.2 provides: “[n]o person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed, or obliterated.” Previous appellate decisions have required that the number’s alteration be man-made. In other words, if the number is naturally corroded, a defendant is not guilty of VUFA 6110.2 simply because he is in possession of a gun whose markings had become illegible due to natural causes. However, whether a serial number has worn away over time or been intentionally removed is not always clear.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the defendant’s conviction and found that the evidence was not sufficient to convict him of VUFA 6110.2. In making its decision, the Court first analyzed the VUFA 6110.2 statute. The Court found that the term “altered” is capable of multiple reasonable interpretations and thus the term is ambiguous. Therefore, the Court then analyzed the legislative intent behind VUFA 6110.2. The Court opined that the Pennsylvania Legislature drafted VUFA 6110.2 because the manufacturer’s serial number is an important tool used by police officers in identifying the owner of weapons used in criminal offenses. To safeguard this tool, the legislature found it important to pass a law that prohibits individuals from altering, changing, removing, or obliterating these numbers.

In the instant case, the serial numbers on the defendant’s gun were still visible. In fact, the Commonwealth conceded this fact at trial. Therefore, the Pennsylvania Supreme Court held that to be convicted of VUFA 6110.2, the Commonwealth “must establish that the number was changed in a material way, such as by making it look like a different number, or that it was rendered illegible, in whole or in part, to the naked eye.” In this case, because the defendant’s gun’s serial number was not illegible, the evidence was insufficient to convict him of VUFA 6110.2. Therefore, his conviction on this charge will be vacated, and his case will be remanded for re-sentencing.

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, illegal gun possession, 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.