Philadelphia Criminal Defense Blog

Zak Goldstein 1/25/20 Zak Goldstein 1/25/20

PA Supreme Court: Defendant Seized Under Fourth Amendment When Police Officer Has His ID

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Cost, holding that the defendant was seized without reasonable suspicion or probable cause when a police officer asked for the defendant’s identification and then retained possession of it while continuing to question the defendant. Because no person would feel free to terminate the police encounter and leave while the police officer still has that person’s identification, the police were required to have reasonable suspicion of ongoing criminal activity in order to support the seizure. This case recognizes the basic fact that when police ask for a defendant’s identification and then hold onto it while continuing the conversation, they have usually seized a defendant for Fourth Amendment purposes.

The Facts of Cost

In Cost, the defendant was arrested for various violations of the uniform firearms act in Philadelphia and filed a motion to suppress the gun which police had recovered. At the hearing on the motion to suppress, a Philadelphia Police Officer testified that he had been patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 pm. His partner saw the defendant and three other men in an alley. They suspected, without seeing anything actually illegal, that something could be going on back there. Therefore, they circled the block, stopped in front of the alleyway, and began to conduct an investigation. They did not activate the emergency lights or sirens on the police vehicle.

The officers got out of the car and walked over to the individuals. They asked the individuals if any of them lived back there and then asked if they had any ID. They all handed ID cards of some kind to the officers. The officer then continued to question them while holding onto the ID about whether they had anything on them that he needed to know about. At that point, the defendant began to take off a backpack. The officer asked him if there was anything in the backpack that he needed to know about, and the defendant responded that there was a gun in the backpack. This promptly led to the recovery of the gun and the arrest of the defendant for firearms charges. The officer testified that the defendant’s path was unrestricted and he could have walked away at any time and that the whole encounter took less than a minute. He never told the four men that they were free to leave. At some point, he ran their names through NCIC, but nothing came back. He also wrote down some information from the IDs on a notepad.

The trial court granted the motion to suppress. The court found that the officer had not seen anything illegal prior to asking for ID, and once the officer asked for the ID and then held onto it while continuing to question the men, the men were not free to leave. Accordingly, the officer conducted an illegal seizure because he did not have reasonable suspicion to detain them. This required the suppression of the gun. The Commonwealth appealed to the Superior Court, and the Superior Court reversed the decision suppressing the gun. The defendant then appealed to the Supreme Court, and the Supreme Court accepted the appeal.

The Supreme Court’s Ruling on the Motion to Suppress the Gun

The Supreme Court reversed the Superior Court and reinstated the trial court’s ruling. The Supreme Court found that merely asking a person for their identification does not automatically turn a mere encounter into a Terry stop that requires reasonable suspicion or probable cause. However, the Court recognized that once the person has produced the ID, the person would never feel free to leave without their ID while the officer is holding onto it. Thus, if the officer does not return the identification and instead continues to ask questions or conduct an investigation while holding a suspect’s property, the officer has usually effected a seizure which requires some level of suspicion such as reasonable suspicion or probable cause. Here, the officer had no seen the defendant do anything illegal whatsoever, and the officer seized him by holding onto his identification while continuing to question him. Therefore, the trial court properly suppressed the gun. This is a good case for privacy rights as it recognizes that a person who has been asked for their identification and has turned over that identification is not going to simply feel free to walk away without their own ID. This continues a trend of relatively progressive Fourth Amendment decisions from the Pennsylvania Supreme Court which have started to reintroduce a respect for privacy rights into the criminal justice system.

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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 1/13/20 Zak Goldstein 1/13/20

What are the penalties for possessing a gun as part of a federal drug trafficking offense?

Federal Gun Charges Lawyer Zak Goldstein

Guns and Drugs in Pennsylvania and New Jersey Federal Courts

Federal law imposes severe penalties on the possession of a firearm during a federal drug trafficking offense. Specifically, Section 924(c) requires a federal judge to impose certain consecutive mandatory minimum sentences where a defendant:

A) uses or carries a firearm;

I) during and in relation to any crime of violence which may be prosecuted in a court of the United States; or

ii) during a drug trafficking offense which may be prosecuted in a court of the United States; or

B) possesses a firearm in furtherance of such offense.

This means that there are three ways that a defendant can be prosecuted for having a gun while selling drugs. The defendant can be prosecuted for 1) the use of the weapon during the crime, 2) carrying the weapon while committing the crime, or 3) possessing a firearm in furtherance of the underlying crime.

In order to show that a defendant used a gun during a drug trafficking offense, prosecutors must show the active employment of the firearm. This generally means actually using the gun in the common sense of the word - firing it, attempting to fire it, displaying it, brandishing it, or striking someone with it. Simply having a gun nearby for protection is unlikely to qualify as the use of the firearm.

It is often easier for the prosecution to prove that someone “carried” a firearm during a federal drug trafficking offense than that the person used it. For example, carry has often been interpreted as being synonymous with possessed, and there are two types of possession. First, there is actual possession in which a defendant physically has a gun on his person such as in a pocket. Second, there is a constructive possession. Constructive possession is a doctrine which means simply that the person has dominion and control over the gun. This allows for a prosecution even where the defendant does not physically have the gun on them such as where a gun is hidden somewhere in a car. Constructive possession is harder to prove because prosecutors are not always able to show that the defendant actually knew about or controlled the gun.

Finally, prosecutors can show that a gun was used in furtherance of a specified crime by showing that the gun was possessed, either actually or constructively, during and in relation to a gun crime. This generally means that “the defendant intended the weapon to be available for use during the drug transaction, that the defendant availed himself of the weapon and that the weapon played an integral role in the drug offense.” Thus, this is a higher bar to prove than possession or simply use.

What is a drug trafficking crime that would trigger the mandatory minimum?

Federal law also provides the definition for a drug trafficking crime. Under 18 U.S.C. Section 924(c), a drug trafficking crime is:

[A]ny felony punishable under the Controlled Substances Act (21 U.S.C. § 801, et seq. ), the Controlled Substances Import and Export Act (21 U.S.C. § 951, et seq. (importation, transshipment of controlled substances), or chapter 705 of titl e 46. [46 U.S.C. App. §1901, et seq. (manufacture, distribution or possession with intent of controlled substances on board vessels)].”

Whether a specific offense qualifies as drug trafficking crime is sometimes the subject of litigation, but this mandatory minimum generally applies to the sale of drugs while possessing a firearm.

It is important to note that a defendant could also face vicarious liability, meaning that if a co-defendant or co-conspirator used a gun as part of a drug trafficking offense, the defendant could be on the hook for the co-defendant’s mandatory minimum if the defendant knew or it was reasonably foreseeable that the co-conspirator would have a gun.

What is the federal mandatory minimum for possessing a gun while selling drugs?

The mandatory minimums for possessing a gun while selling drugs can be staggering in federal court. For example, a first offense carries a mandatory minimum of five years consecutive to any other sentence. If the firearm was brandished, then the mandatory minimum increases to seven years. If the firearm was fired or was an illegal shotgun or rifle, then the mandatory minimum becomes ten years. Finally, if the gun was a machine gun or a destructive device like a bomb, then the mandatory minimum is thirty years.

The penalties become even more severe for a second or subsequent offense. For a second offense, the mandatory minimum becomes 25-years or life for a machine gun or bomb. If a death results from the use of the gun, then the penalties can be even worse.

It is important to note that these mandatory minimums are only the minimum sentence that a federal just must impose following a conviction and that the judge can actually impose more time than the mandatory minimum. The Third Circuit Court of Appeals, which handles appeals arising from federal cases in Philadelphia and New Jersey, has ruled that although the statute does not explicitly reference a maximum potential sentence, a violation of 924(c) can actually be punished by a maximum sentence of life in prison.

What are the defenses to charges of possessing a gun while committing a drug trafficking offense?

Fortunately, there are defenses to these serious charges. As with many possessory offenses, the defenses could include:

Motions to Suppress. If the police or federal agents did something illegal during the investigation of the case, it may be possible to have the drugs or guns and the charges dismissed. For example, if agents raided a home without a search warrant and found the gun which was allegedly used as part of the offense, it could be possible to have the gun suppressed, which would eliminate the prosecutor’s ability to bring the gun charges. Likewise, if police conducted an illegal interrogation by failing to provide Miranda warnings, it could be possible to have a defendant’s inculpatory statement suppressed.
Challenging Possession. In many gun cases, it may be possible to challenge whether the defendant actually possessed the gun. This could be through challenging the credibility of the agents or officers on cross-examination where they claim that the gun was actually on the defendant or by showing that the defendant did not actually know about or have control of a firearm in a case involving constructive possession allegations.
Challenging Drug Trafficking. As the statute makes clear, the mandatory minimum only applies where there is some relationship between the firearm and gun trafficking. Even if prosecutors in the Eastern District of Pennsylvania can prove that the defendant possessed the gun, it may be possible to challenge the allegations that the defendant was engaged in drug trafficking. This would be a defense to the gun charges as well because the gun charges are dependent on the drug trafficking charges.

These are just a sample of potential defenses for a gun and drug case, and there may be other defenses which apply in your case. Further, in some cases, prosecutors may have strong evidence, and it may be possible to negotiate a better deal for the client so that the client can avoid these extreme mandatory minimum sentences. Our experienced federal gun charges lawyers have the experience and expertise to fight your case and help you obtain the best possible result.

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Gun Charges Defense Attorneys in Philadelphia, PA

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.

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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.