Philadelphia Criminal Defense Blog

Zak Goldstein 10/29/20 Zak Goldstein 10/29/20

PA Supreme Court: Police Can't Search Your Phone Just Because You're Near Drugs and Guns

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s proximity to drugs and guns is not sufficient probable cause to obtain a search warrant for a defendant’s cell phone. This decision is significant because cell phones often contain very private and intimate details about our lives. Additionally, they can also obtain very incriminating details that prosecutors will use against defendants at trial. Thankfully, Johnson places a higher burden on the government to access these details, and so this is a big win for both privacy advocates and criminal defendants.

Commonwealth v. Johnson

In 2014, Pittsburgh police officers received a 911 call from an anonymous caller. The call stated that shots were fired inside an apartment. The officers subsequently went to this apartment and as they approached the apartment, they smelled a strong odor of burning marijuana coming from inside of the apartment and could hear people talking, too. The officers then knocked on the door and announced their presence. They continued knocking for several minutes with no response.

Eventually, a woman opened the door and the officers entered the apartment and conducted a protective sweep and detained five individuals, one of them being the defendant. During their sweep, the officers observed in plain view two bricks of heroin on a shelf. They also recovered three stolen firearms hidden together above the apartment’s hot water tank. The five detained individuals were placed under arrest. Officers then secured the apartment and obtained a search warrant. When they searched the defendant, they found two cell phones on his person. During their search of the apartment, the officers recovered an additional 717 bags of heroin and three cell phones. Four months after they recovered the cell phones, the officers requested and obtained an additional search warrant for the cell phones that they recovered, including the phones found on the defendant.

The defendant was charged with Possession with the Intent to Deliver (“PWID”), VUFA § 6105, Knowing and Intentional Possession of a Controlled Substance (“K/I”), and Small Amount of Marijuana (“SAM”). The defendant then filed a motion to suppress the drugs, cell phones, and firearms that were recovered in the apartment because he argued they were illegally obtained. This motion was denied. After this motion was litigated, the Commonwealth turned over additional discovery to the defendant. Specifically, they provided him with text messages that were recovered from his phone that “referenced stamp bags of heroin which had the same stamp as [the] bags recovered from the apartment.”

The defendant filed a subsequent motion to suppress these text messages, arguing that the search warrant should never have been granted given that the officers lacked probable cause to search his phone. The defendant argued that the police were going through his phone to figure out who the guns and drugs belonged to and that this was an improper attempt to ascertain that information. Unfortunately for the defendant, the suppression court did not agree with him and denied this motion to suppress too.

The defendant then elected to proceed by a bench trial. He was found guilty of PWID and K/I, but was found not guilty of VUFA 6105, and SAM. He then filed an appeal with the Pennsylvania Superior Court which was denied. According to the Superior Court, the fact that the defendant “was found ‘in close proximity to firearms and evidence of the distribution of heroin’ established a probable cause to believe more evidence relating to narcotics distribution would be found on his cell phone.” The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court who agreed to hear his case. For purposes of this blog, only the search warrant pertaining to the defendant’s cell phones will be addressed.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and remanded the defendant’s case for a new trial. In its decision, the Pennsylvania Supreme Court rejected the notion that because there was probable cause to arrest the defendant for constructively possessing the drugs and guns that that there was also probable cause to search his cell phone for evidence of those same offenses. The Court stated that there must be a link or some facts to show that the cell phone contains evidence of criminality.

In the instant case, the Court found that there was no such link. There was nothing in the affidavit to suggest that the defendant was personally in possession of the drugs or that he was even aware they were in the apartment. Additionally, because the police originally went to the apartment on the basis of an alleged emergency, the police did not have the support of a long-term drug trafficking investigation to bolster their affidavit. The only thing that the affidavit of probable cause established was that the defendant was present in a place where illegal contraband happened to be found. This was not sufficient to get a search warrant for a cell phone. Therefore, the defendant should receive a new trial without the illegally seized evidence.

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 8/13/20 Zak Goldstein 8/13/20

PA Supreme Court: Commonwealth Bears Burden of Disproving Claim of Self-Defense in Gun Case

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Lineman, reaffirming its decision in Commonwealth v. Torres. The Supreme Court again held that if a criminal defendant properly raises the issue of self-defense, the Commonwealth has the burden of disproving that claim beyond a reasonable doubt. Further, it is not adequate for the fact-finder to merely disbelieve the defendant’s evidence of self-defense. The Commonwealth must produce actual evidence to counter a defendant’s self-defense claim. The Lineman decision is significant because it applies the logic of Torres to a possessory offense rather than just a crime of violence.

Commonwealth v. Lineman

A Philadelphia Police officer was on routine patrol when he received a radio call indicating that a male was screaming for assistance. The officer arrived on scene and observed the defendant and another male struggling on the ground. The defendant was lying on the ground with the other male on top of him. The officer ordered the male to get off the defendant. As the defendant began to stand he heard the sound of metal scraping the ground. The officer then looked at the defendant’s hand and saw that he was holding an Uzi. According to the officer, the defendant appeared to be under the influence of a controlled substance and was bleeding. The defendant was subsequently arrested for Violation of the Uniform Firearm Act § 6105 (“VUFA 6105”), Persons Prohibited from Possessing a Firearm.

The defendant elected to proceed by way of bench trial. At his trial, he testified in his own defense. Specifically, he testified that he and the other male had been drinking. Eventually, the other male became violent towards him and hit him in the face with the gun, which broke the defendant’s nose. The two then began to wrestle for the gun. The officer arrived while they were wrestling and this is what caused the fight to end. During closing arguments, defense counsel argued that the defendant was entitled to an acquittal because he raised the issue of self-defense and the Commonwealth did not present any evidence to rebut this claim as required by the case of Commonwealth v. Torres.

The trial court disagreed. The trial court stated that because this was a possessory offense, he could not raise a self-defense argument. The trial court did state that the defendant could raise a duress defense, but because he did not believe the defendant’s story it was not applicable to him. As such, he found the defendant guilty and sentenced him to three to seven years’ incarceration. The defendant then filed a timely appeal.

The Superior Court affirmed the trial court’s decision. In its decision, the Superior Court found that because the defendant was still in possession of the firearm after the police officer broke up the fight, this was sufficient to convict him of the charge of VUFA 6105. Undeterred, the defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the case.

Which side has to prove self-defense in Pennsylvania?

Commonwealth v. Torres is a Pennsylvania Supreme Court decision that was decided in 2001. The basic facts of the case were that the police arrived at a house in Philadelphia, PA after they received a radio call. When the police arrived on scene, they met with the complainant who said that the defendant had hit him in the head with a wrench. The defendant was about a half block away from the scene when the police arrived. While investigating the scene, the police were unable to locate a wrench. The defendant was then subsequently arrested and charged with simple assault.

The complainant never appeared to court. Nonetheless, the Commonwealth still elected to prosecute the case against the defendant by calling the police officers who arrived on scene. The officers testified that the complainant said the defendant hit him with a wrench. In response, the defendant testified on his own behalf and stated that he was acting in self-defense. At the conclusion of the trial, the trial court stated he disbelieved the defendant and found him guilty. The defendant then filed an appeal to the Pennsylvania Superior Court which affirmed his conviction. He then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which agreed to hear the case.

The Pennsylvania Supreme Court reversed the lower courts’ decisions and vacated the defendant’s conviction. The Court stated that when a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove that claim beyond a reasonable doubt. According to the Court, the Commonwealth must produce some evidence to dispute this claim. Further, the Court specifically stated that it is not sufficient for the trial court to not believe the defendant. Therefore, because there was no evidence on the record to contradict the defendant’s claim that he was acting in self-defense, the defendant’s conviction could not stand and thus was vacated. It is important to note that the defendant in Torres was not charged with a possessory offense (i.e. possessing a gun).

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court issued a slip opinion decision vacating the defendant’s conviction. In its opinion, the Pennsylvania Supreme Court specifically cited Commonwealth v. Torres as the reason why it was reversing the lower courts’ decisions. The Court did not provide any additional justification for its decision. Nonetheless, it is undisputed that the Court has now expanded Torres to include possessory offenses as well. As a matter of common sense, this decision makes sense. If someone is in danger and uses a weapon to protect themselves in self-defense, they should also be able to avoid a conviction for the possession of said weapon. Regardless of the logic of the decision, this decision is obviously favorable to the defendant because his conviction is now vacated, and he will be released from prison.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 6/21/20 Zak Goldstein 6/21/20

PA Superior Court: Car Stop in High Crime Area at Night Not Enough to Justify Search of Defendant's Vehicle

The Superior Court has decided the case of Commonwealth v. Arrington, holding that the police cannot search a person or car for weapons solely because they stopped that person at night in a high-crime area. Instead, there has to be something about the person’s behavior more than the timing and location of the search that would justify such an intrusion on someone’s Fourth Amendment rights.

Commonwealth v. Arrington

On October 25, 2016, Pittsburgh Police officers were on patrol in the Homewood neighborhood of Pittsburgh. At around 2:00 AM, the officers observed the defendant’s vehicle driving towards them in their lane of travel. The defendant’s vehicle remained in the incorrect lane of travel for several seconds before returning to the correct side of the road. The officers suspected that the defendant was driving under the influence of drugs or alcohol and conducted a traffic stop.

When the officers approached the defendant’s vehicle, they witnessed the defendant exhibit several signs of intoxication. The defendant did provide the officers with his driver’s license. However, because of his alleged intoxication, the officers asked the defendant to step out of the vehicle. The defendant did not immediately respond, so the officers physically removed the defendant from the vehicle, conducted a pat down search of him, and placed him in handcuffs. Once the defendant was detained, the officers ran the defendant’s name through the National Crime Information Center (hereinafter “NCIC”). This NCIC search revealed that the defendant had a revoked concealed-carry permit.

The officers then asked if the defendant if he was in possession of any weapons to which the defendant replied he was not. The officers subsequently searched the defendant’s car, without a search warrant, and found a handgun in the backseat. The handgun’s serial number was run through NCIC, and it came back that the weapon had been reported stolen. Police arrested the defendant. The officers then searched the vehicle again as well as the defendant. Upon searching the vehicle, the officers discovered 81 bags of heroin, U.S. currency, a digital scale, and four cell phones. After searching the defendant, they discovered additional U.S. currency and another bag of heroin.

Prosecutors filed various charges for firearms and drug trafficking offenses. Specifically, they charged the defendant with firearms not to be carried without a license (VUFA 6106), possession of drug paraphernalia, possession of a controlled substance, possession with the intent to deliver, and various traffic offenses. Notably, the defendant was not charged with DUI.

Prior to his trial, the defendant filed a motion to suppress arguing that the search of his vehicle was illegal. The trial court denied the motion. The defendant then elected to proceed by way of a non-jury trial where the court found him guilty of the previously mentioned offenses. He received fifteen months of probation. The defendant then filed a timely appeal.

Are the Police Allowed to Search My Vehicle for Weapons?

The police are only allowed to search your vehicle for weapons during a car stop (also known as a protective sweep) if they have reasonable articulable suspicion that you are armed and dangerous. To conduct this search, the officer must reasonably believe that his safety or the safety of others is threatened. If the search is found to be unreasonable, the judicial remedy is to exclude all evidence that derived from this illegal search.

In making this determination, the court will look at the totality of the circumstances to determine whether the officer’s actions were legally justified. Some of the factors that courts will consider are: whether the stop occurred at night; whether the defendant appeared to conceal something; whether the defendant was nervous during the interaction; whether the area the stop occurred is considered a high crime area; whether weapons are in plain view; and other factors that the trial court may deem appropriate.

The Superior Court’s Decision

The Superior Court reversed the trial court’s decision and held that the contraband and weapons found in the defendant’s car should have been suppressed. In making its decision, the Superior Court held that the evidence was not sufficient to establish that the officers reasonably believed that the defendant was armed and dangerous. Although the stop did occur at night, the defendant did not make any furtive movements nor did he display any nervousness. Further, the defendant provided the officers his driver’s license and no weapons were visible when he was initially stopped. According to the Superior Court, the only factors that supported reasonable suspicion was that the stop occurred at night and in a high-crime neighborhood. Therefore, because the defendant “posed no threat to the officers’ safety” the Superior Court reversed the trial court and ordered that the contraband seized from his car should have been suppressed. As such, the defendant’s conviction will be vacated, and he will get a new trial.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers in Philadelphia

Zak Goldstein 3/31/20 Zak Goldstein 3/31/20

PA Superior Court: Hospital Interrogation May Require Miranda Warnings

The Pennsylvania Superior Court has decided the case of Commonwealth v. Harper, holding that trial counsel provided the ineffective assistance of counsel in failing to 1) move to suppress the defendant’s confession for lack of Miranda warnings, 2) object to the introduction of the defendant’s confession at trial based on the corpus delicti doctrine, and 3) object to impermissible lay opinion testimony from the arresting officer that the defendant’s gun shot wound must have been self-inflicted.

The Facts of Harper

In Harper, police officers charged the defendant with persons not to possess firearms (VUFA 6105) and firearms not to be carried without a license (VUFA 6106) after he made incriminating statements to a police officer while in the hospital. At trial, the Commonwealth presented the testimony of a local police officer who testified that he and his partner responded to a report of a shooting. They were told to go to the hospital to speak with the defendant. When they arrived, the defendant was in a hospital bed and had received medical treatment for a gunshot wound. The officer saw that the defendant had a gunshot in his knee area.

The officer testified that based on his experience and his observation of the angle and location of the wound, the defendant had a self-inflicted gunshot wound. This would be a problem for the defendant with respect to the gun charges because it would establish that he must have possessed a firearm illegally in order for the wound to have been self-inflicted. The criminal defense attorney failed to object to this opinion testimony from the officer.

Suspicious that the wound had been self-inflicted, the officer began questioning the defendant. The officer told the defendant that he was going to perform a gunshot test on his hands to see if he had recently fired a gun. He was bluffing, but the defendant believed him. He also told the defendant that he was going to check his clothes for residue, as well. The officer then actually administered a fake test by swabbing his hands with a Q-tip and saline. The defendant promptly confessed to shooting himself, thereby establishing the illegal gun possession.

After successfully obtaining this full confession, the police decided that it was then time to administer Miranda warnings. The defendant received his Miranda warnings and then confessed again. The United States Supreme Court has held that this kind of two-step Miranda warning procedure is unconstitutional.

The police never found the gun. There was no evidence at trial that anyone saw the defendant shooting anyone, getting shot at, or possessing a gun. The parties stipulated that he had a felony conviction which made him ineligible to possess a firearm. He did not testify. The court found the defendant guilty and sentenced him to three to six years’ incarceration followed by three years’ probation.

The PCRA Petition

Instead of filing a direct appeal to the Superior Court, the defendant pursued a Post-Conviction Relief Act Petition in the Court of Common Pleas. In the Petition, the defendant alleged that he received the ineffective assistance of counsel from his trial attorney. Specifically, he alleged that his attorney was ineffective in 1) failing to move to suppress the statement on Miranda grounds, 2) failing to object on corpus delicti grounds, and 3) failing to object to the officers opinion testimony regarding the wound being self-inflicted. The trial court denied the PCRA Petition, and the defendant appealed to the Pennsylvania Superior Court.

Are Miranda warnings required for hospital interrogations?

First, the defendant alleged that his criminal defense attorney should have moved to suppress his hospital confession on the grounds that police failed to provide him with Miranda warnings prior to questioning him. In general, the police must provide Miranda warnings prior to questioning a suspect when the suspect is in custody AND the police are going to ask questions or make statements reasonably likely to elicit an incriminating statement. Here, it was clear that the police asked questions which were designed to obtain incriminating information. Therefore, the real issue was whether the defendant was in custody for Miranda purposes when they questioned him at the hospital given that they had not transported him to the police station, put him in handcuffs, or told him that he was under arrest.

The Superior Court found that he was in custody. A person is in custody when the officer’s show of authority leads the person to believe that he is not free to decline the officer’s request or otherwise terminate the encounter. A court must consider the totality of the circumstances, including factors such as “the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions.”

The Superior Court found that the defendant was in custody for Miranda purposes. First, the officers believed that he was likely guilty and so it is likely that their behavior would have reflected that belief. Second, the officers did not simply ask questions. Instead, they issued commands that the defendant submit to the fake gunshot powder residue test. Third, based on the defendant’s condition and the commands issued by the officers, a reasonable person in the defendant’s position would not have felt free to leave. Therefore, the defendant was in custody for Miranda purposes, and a motion to suppress his statement would have been successful. The Court found that trial counsel was ineffective in failing to move to suppress the statement because such a motion would have been granted. The Court reversed the defendant’s conviction as there was no other evidence linking him to possession of a firearm.

What is corpus delicti?

Second, the PCRA Petition also alleged that the trial lawyer was ineffective in failing to object to the admission of the statement on corpus delicti grounds. Corpus delicti is a doctrine of criminal law which stands for the proposition that the Commonwealth must show that a crime actually occurred before using a defendant’s statement to convict him at trial. In order to prove corpus delicti, the Commonwealth must show that the evidence is more consistent with a crime than with an accident. This protects a defendant from being convicted based solely on a statement where it is possible that no crime actually occurred. In order for a statement to be admissible, the prosecution must prove the corpus delicti by a preponderance of the evidence. In order for the statement to actually be considered by the fact finder, the Commonwealth must prove a crime occurred beyond a reasonable doubt.

Here, the Commonwealth failed to establish the unlawful possession of a firearm with any evidence other than the defendant’s statement. It showed only that the defendant had been shot. It did not show, without his statement, that he had actually possessed the gun or that anyone ineligible to do so had possessed the gun. Accordingly, it was just as possible that someone else who could possess a gun lawfully had shot the defendant. Therefore, the Commonwealth failed to establish corpus delicti. Had the defense attorney objected on this basis, the court would have sustained the objection, and the confession would have been inadmissible. Accordingly, the Superior Court found the defense attorney ineffective on this basis and would have reversed the conviction for this reason, as well.

May a police officer testify that a gunshot wound is self-inflicted?

Finally, the defendant alleged that his trial attorney provided the ineffective assistance of counsel in failing to object to the officer’s opinion testimony that the wound was self-inflicted. Under Pennsylvania Rule of Evidence 701, some opinion testimony from witnesses is admissible where the testimony is a) rationally based on the witness’s perception, b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The defendant alleged that the officer’s testimony violated part c of the rule in that it was really based on scientific, technical, or other specialized knowledge that would require the officer to be qualified as an expert in gunshot wounds. The Commonwealth never sought to tender the officer as such an expert or establish that he really had the qualifications to provide this type of opinion. Therefore, the Superior Court found that the defense attorney was ineffective in failing to object to this improper opinion testimony that the wound was in fact self-inflicted. Given that the Court agreed with the defendant with respect to all three allegations in the PCRA Petition, it reversed his conviction and remanded the case to the trial court for a new trial.

If you need a criminal defense attorney in Philadelphia, PA, 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, DUI, 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.