Philadelphia Criminal Defense Blog
Video Explanation of Federal Felon in Possession of a Firearm Charges
PA Superior Court: Search of Cell Phone After Expiration of Search Warrant Violates Fourth Amendment
Zak Goldstein - Philadelphia Criminal Defense Attorney
The Pennsylvania Superior Court has decided the case of Commonwealth v. Bowens, holding that the police may not search a cell phone after the warrant authorizing the search has expired even if the police initially had technical difficulties with the phone and did not view any data that would have been generated after the warrant expired. This is an important decision because it shows that PA appellate courts continue to reject prosecutors’ attempts to create a good faith exception to the exclusionary rule in Pennsylvania.
Commonwealth v. Bowens
On October 12, 2016, a Pennsylvania State Trooper observed a vehicle abruptly change lanes from the passing lane to the right lane, nearly hitting another vehicle. After activating the emergency lights on his vehicle, the trooper observed the driver of the vehicle reaching over towards the glove box as he pulled the car onto the shoulder of the road. The defendant was sitting in the front passenger seat. While speaking with the defendant and the driver, the trooper noticed that the men seemed nervous. The driver informed the trooper that the car belonged to his girlfriend in New Jersey. He also stated that he and the defendant were travelling from York to Lancaster and then to Chester and Philadelphia.
While the trooper was speaking with them, another trooper learned that there were arrest warrants outstanding for both men. The trooper then took the men into custody and took possession of their cell phones. The trooper then set the defendant’s phone to airplane mode and placed it inside an aluminum foil-lined pouch for safekeeping. The trooper impounded the vehicle and conducted an inventory search. The glove box was locked, and both the defendant and the driver denied having the key. They also denied knowing anything about the contents of the glove box. The trooper then contacted the driver’s girlfriend who gave him permission to search the glove box. She also stated that the driver had the key.
The trooper obtained a search warrant to search the glove box. Inside the glove box, he found heroin, drug paraphernalia, and two firearms. The trooper then obtained a search warrant for the cell phones and provided them to a detective with the Northern York County Regional Police Department who was a forensic expert in the field of cell phone data extraction. The search warrant expired on October 16, 2016 at 10:45 AM. On October 20, 2016, the detective notified the Trooper that he had completed the cell phone extraction, which revealed text messages between the defendant and his companion using language common to the illicit drug trade. The defendant’s phone also contained photographs of cash and of a handgun similar to the one found in the glove box.
The defendant was subsequently charged with Possession with the Intent to Deliver (“PWID”), conspiracy to PWID, Receiving Stolen Property, Firearms Not to be Carried without a License, and Possession of Drug Paraphernalia. The defendant then filed a motion to suppress. At the motion to suppress hearing, the trial court denied his motion in part and granted it in part. The defendant argued that the contents of the defendant’s phone search should be suppressed because his phone had been searched after the search warrant had expired. However, the trial court held that because the phone had been in airplane mode, there were no “staleness concerns that would be present in other factual scenarios where the probable cause determination would have expired.” Further, the trial court found that delay in searching the phone “was a product of coordination delays between the police possessing the software and the expertise to do the job.” The court did hold that any information that was sent to the phone after the search warrant had expired would be inadmissible at trial.
The defendant then proceeded to a jury trial where he was found guilty of all the charges, and he was sentenced to 15 years 9 months’ to 31 years 6 months’ incarceration. The defendant then filed a timely post-sentence motion. After the trial court denied the motion, he filed his appeal. On appeal, the defendant raised several issues. However, for purposes of this blog, only the issue of whether the evidence was sufficient to convict the defendant of the drug and firearms offenses and whether the trial court improperly denied his motion to suppress the data that was found on his phone.
Do Search Warrants Expire in Pennsylvania?
Yes. Rule 205(A)(4) of the Pennsylvania Rules of Criminal Procedure states that a search warrant must be executed within a specific period of time, not to exceed two days from the time of the issuance or if the warrant is issued for a prospective event, then only after the event has occurred. There are not exceptions to Rule 205(A)(4) and the failure to adhere to this rule amounts to a “federal constitution violation.”
The Superior Court’s Decision
The Superior Court reversed the trial court’s decision to deny the motion to suppress. The Court found that the trial court committed reversible error when it denied the defendant’s motion to suppress. The trial court found that because the detective searched the phone past the expiration date of the search warrant, this amounted to warrantless search. Additionally, the Superior Court found that this error was not harmless, because the evidence from the cell phone extraction was the only evidence that the Commonwealth presented to support its conspiracy charge.
Additionally, the Superior Court found that there was not enough evidence to convict the defendant of possessing the firearms or the drugs. The Superior Court reasoned that the Commonwealth did not prove that the defendant had constructive possession of the contraband at the time of the traffic stop. The Superior Court stated that the defendant did not have access to the key to the glove compartment because it was in possession of his co-defendant and there was no evidence presented that he had control over the contraband. Rather, the only thing the Commonwealth proved was that the defendant was merely present in the vehicle at the time of the traffic stop.
Consequently, the defendant’s sentence was vacated. His convictions for PWID, Possession of Drug Paraphernalia, Receiving Stolen Property, and Firearms Not to be Carried Without a License are also vacated and the Commonwealth cannot retry him on those charges because the evidence was not sufficient to convict him of them. Therefore, the only charge remaining against him is the conspiracy charge and he will get a new trial on that charge.
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, 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.
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.
Facing criminal charges? We can help.
Criminal Defense Lawyers
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.
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.
Facing criminal charges? We can help.
Gun Charges Defense Attorneys in Philadelphia, PA
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.