Philadelphia Criminal Defense Lawyer Zak Goldstein Wins Motion to Suppress in Gun and Drug Case

Gun Charges Defense Lawyer Zak Goldstein

Criminal defense attorney Zak T. Goldstein, Esquire recently won an important motion to suppress the physical evidence in the case of Commonwealth v. A.W. In A.W., the Philadelphia Police Department narcotics unit had recently received a complaint from a local city councilwoman’s office with information that drugs were being sold outside on a certain block. Officers from the Narcotics Field Unit quickly went to that block and set up a surveillance operation. They claimed that as they were watching the block, the defendant drove up and parked across the street from them. They were then able to see into his car and see that he had taken money out of his pocket and begun counting it. He put the money away, got out of the car, and started walking up the block. The defendant then made a phone call, turned and jogged in the opposite direction, and met up with another black male in the middle of the block. They shook hands and then walked into an unknown house out of view on that street.

After about ten minutes, the officers saw A.W. return to his car, but he was now carrying a plastic shopping bag into which they could not see. He got back in the car and drove away. Believing that a drug transaction had occurred, the surveillance officers radioed for backup officers to stop A.W. and search him and his vehicle. When backup officers pulled A.W. over, they found a gun in his waistband and a significant amount of marijuana and other drugs in the car. The Philadelphia police arrested A.W. and charged him with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, and numerous Violations of the Uniform Firearms Act including Section 6105 (felon in possession), Section 6106 (carrying a concealed firearm without a permit), and Section 6108 (carrying a firearm on the streets of Philadelphia). Given all of these charges, A.W. was potentially facing decades in prison.

Fortunately, A.W.’s family quickly retained Philadelphia Criminal Defense Attorney Zak Goldstein. Attorney Goldstein reviewed the police reports, defended A.W. at the preliminary hearing, and filed a motion to suppress the evidence, arguing that police had not actually seen any evidence of criminal activity which would justify the stop of A.W.’s vehicle and the search of his person and the car.

The Philadelphia Court of Common Pleas – Criminal Division held an evidentiary hearing on the motion to suppress. During the hearing, the officer testified to the above observations as well as his conclusion that he had witnessed a drug transaction due to the fact that A.W. was in a high crime area, was counting money, did not seem to know exactly where he was going prior to making the phone call, and went into a house and then came back with an opaque shopping bag that could contain drugs.

Attorney Goldstein successfully convinced the Court that all of these observations were equally consistent with totally legal behavior. There was simply nothing illegal about being in that area, counting some money, and then going into a house. The trial court agreed and granted the motion to suppress. Without the ability to introduce the drugs or gun into evidence, the Commonwealth was forced to move to dismiss the charges, and A.W. was quickly freed from custody with no conviction.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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.

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Video Explanation of Federal Felon in Possession of a Firearm Charges

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire provides a brief overview of federal felon in possession of a firearm charges in the Eastern District of Pennsylvania. If you are facing criminal charges, call 267-225-2545 to speak with one of our award-winning defense attorneys today.

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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.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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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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