Philadelphia Criminal Defense Blog

Zak Goldstein 8/8/23 Zak Goldstein 8/8/23

PA Superior Court: Police May Search Car and Defendant Without Warrant When Defendant Has Gun and Drugs in Plain View

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, affirming a Philadelphia trial court’s finding that police officers had reasonable suspicion to believe that the defendant was in possession of illegal narcotics and a firearm where the defendant was sitting inside of a car that police believed to be abandoned with drug paraphernalia in plain view, the odor of burnt marijuana emanating from the car, and the outline of what police believed to be a gun in his pocket. Although the Pennsylvania Supreme Court recently granted allocatur on the issue of whether the plain view exception to the warrant requirement applies to automobiles, The moral of the story is that it is ill-advised to keep your guns and drugs in plain view where the police can see them.

The Facts of Green

On June 1, 2019, two Philadelphia Police officers were on routine patrol in a marked police vehicle and investigating complaints of narcotic sales and illegally parked vehicles near the West Poplar Apartment Complex. One officer was familiar with the housing complex as he had worked in that district for more than ten years and made numerous narcotics and firearms arrests in that apartment complex and area. One of the officers noticed a white Chevy Malibu he believed had been parked in the complex, unmoved, for about two weeks. The officers pulled up to investigate the vehicle, believing that it may have been abandoned. The officers approached on foot, noticed the vehicle’s inspection stickers were peeling off and it had damage to the body of the vehicle. They smelled the odor of burnt marijuana emanating from the car. The vehicle had tinted windows, and as one officer went to the front to look through the windshield, he noticed the defendant in the front passenger seat fully reclined. The officer then noticed small vials and plastic baggies, which he recognized to be consistent with narcotics packaging for crack cocaine, as well as “blunt guts” scattered around the vehicle.

As the officer took a closer look at the defendant through the windshieled, he noticed the outline of a firearm in the front pocket of the defendant’s tight-fitting sweatsuit. The officer could see the entire imprint of the firearm. That officer notified his partner he believed he saw a firearm and radioed for backup.

One police officer attempted to speak with the defendant by knocking on the windshield and requesting that the defendant step out of the vehicle and provide paperwork. The defendant opened his eyes slightly and then closed them again as if he were checking if the officers were still there and then pretending to be asleep. The police were unable to get him to respond.

The officers attempted to make contact for fifteen minutes. They were on the verge of calling for a SWAT team, but their supervisor directed them to break the windows and pull the defendant out of the car. They did so, and they recovered a 9mm pistol from the defendant and placed him under arrest.

The Criminal Charges

The defendant was charged with carrying a firearm without a license and carrying a firearm on the public streets of Philadelphia without a license (VUFA § 6106 and § 6108). Both these offenses are violations of the Uniform Firearms Act. The defendant filed a motion to suppress the firearm, and the trial court denied the motion to suppress. The judge found him guilty following a bench trial, and he appealed.

The Superior Court’s Ruling

On appeal, the defendant argued that the trial court should have granted the motion to suppress. First, the Court explained the typical rules that may apply to this type of police encounter. Pennsylvania Courts have developed three categories of interactions between citizens and police officers to better determine if an individual’s rights are being infringed. The categories are:

1) a “mere encounter” (or request for information) which need not be supported by any level of suspicion but is not an order and can be completely ignored.

2) an “investigative detention” which must be supported by a reasonable suspicion; it subjects the individual to a stop and a period of detention but does not rise to the level of the functional equivalent of arrest, and

3) “custodial detention,” or the functional equivalent of an arrest, which must be supported by probable cause.

A person is subject to an investigative detention, which requires reasonable suspicion, when a reasonable person in their position would not feel free to leave.

In this case, the Superior Court concluded that the officers did not need any level of suspicion to approach the parked car on foot, but they needed reasonable suspicion to break the windows and pull the defendant out of the car. The Court, however, found that they had reasonable suspicion based on the totality of the circumstances - the defendant was in a car which had numerous obvious motor vehicle code violations, there was drug paraphernalia in plain view, he pretended he did not see the police even though he opened his eyes, and he also had a gun on him.

Accordingly, the police were justified in breaking into the car and removing him from the vehicle. Whether or not the police may retrieve contraband from a car when the contraband is in plain view is still an open question; as previously mentioned, the Pennsylvania Supreme Court recently granted review on that issue. So far, however, the Superior Court has repeatedly held that police may enter a car to retrieve obviously visible contraband even without a search warrant. The police ordinarily may not search a car without a warrant, but when guns and drugs are out in the open, the police may not need to get a warrant.

Facing criminal charges? We can help.

Goldstein Mehta LLC 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. We have also won criminal appeals and PCRAs in state and federal court. 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 6/21/23 Zak Goldstein 6/21/23

Motion to Suppress Firearm Granted Due to Defective Search Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently won the suppression of a firearm in the Philadelphia Municipal Court. In the case of Commonwealth v. J.K., the client was charged with possessing a firearm as a prohibited person for allegedly refusing to relinquish two firearms after Family Court issued a final protection from abuse order against him. Fortunately, J.K. retained Attorney Goldstein, and Attorney Goldstein obtained suppression of the gun that police recovered when they searched J.K.’s apartment.

In this case, J.K.’s relative obtained a protection from abuse order against him. The final order contained a condition which required J.K. to surrender any firearms. After nearly a year went by, the Philadelphia Police conducted a background check on J.K. and concluded that he had not surrendered any firearms to the Sheriff’s Department as directed by the order. According to police records, J.K. had allegedly purchased two firearms legally about four or five years ago. A detective called J.K., and he told them that he did not have any firearms to surrender. Similarly, sheriffs deputies went to J.K.’s apartment and left notices on his door that he was required to surrender any firearms according to the terms of the PFA.

J.K. never surrendered any firearms, leading police to then obtain a search warrant for the apartment. When they executed the search warrant, they found one gun in the apartment. They arrested J.K., and the District Attorney’s Office charged him with possessing a firearm as a prohibited person in violation of 18 Pa.C.S. § 6105 (VUFA § 6105). Under the statute, it is illegal for a person to possess a firearm while they have an active PFA order against them.

J.K. retained Attorney Goldstein, and Attorney Goldstein litigated a motion to suppress on his behalf. Attorney Goldstein moved that the Municipal Court judge suppress the firearm because the warrant that the police relied upon did not actually contain probable cause. Specifically, the warrant provided only that J.K. had purchased firearms about four or five years prior to the date on which the Family Court issued the PFA and that he had not relinquished those firearms to the sheriff. The problem with the warrant, however, was that the police had no evidence that J.K. still had the firearm.

Does Pennsylvania Maintain a Registry of Firearms?

The simple answer to this question is no. Pennsylvania does not maintain a registry of firearm possession. Pennsylvania and federal law require a person who wishes to purchase a firearm from a dealer to undergo a background check and fill out certain paperwork at the time of the sale. The dealers generally keep that paperwork, and they provide copies of that paperwork to the police or federal agents when someone fails the background check so that the police can investigate whether the person attempted to purchase the gun illegally. This paperwork, however, does not go into any kind of central registry that can tell the police or other law enforcement where a particular gun is at any time. Additionally, there are many firearms transfers which do not require the completion of any paperwork at all. For example, a person may give a firearm to a parent, spouse, child, grandparent, or grandchild without completing any of the background check paperwork. Additionally, if someone left the state and sold the firearm in another state, the Pennsylvania State Police would not have any information on that transaction. Finally, if a gun were lost, stolen, or destroyed, the local police also may not have any information on the whereabouts of the gun.

So, although it is common for people to believe that a gun is “registered” to them after they have purchased it from a gun store, the reality is that Pennsylvania does not maintain a registry of firearms. Instead, the police tried to find out if J.K. still had a gun by checking various databases for whether or not the gun had ever been reported stolen. They did not know whether J.K. had gifted it to a close relative as allowed by law, had it stolen, sold the gun legally, or lost or destroyed it. When the police called, J.K. calmly told them that he did not have any firearms to surrender, and the purchase of the firearms had been four or five years earlier. The police, however, had obtained the search warrant based on this mistaken idea that guns are registered and that if J.K. had legally disposed of or transferred the guns, the police would somehow know about it. This idea, however, is not correct. Accordingly, Attorney Goldstein successfully argued that just because J.K. had a gun four or five years earlier did not mean he would still have a gun that he would need to surrender at the time that the PFA order was issued by the Family Court judge. The Municipal Court agreed, found that the warrant did not contain probable cause, and granted the motion to suppress.

It is also important to note that Pennsylvania does not have a good faith requirement for invalid search warrants. In the federal system, prosecutors often may move forward even if the search warrant was defective in some way or even if it had already been executed. In the state court system, evidence obtained in reliance on a defective warrant must be suppressed. Once evidence has been suppressed, it cannot be used in court, and prosecutors will generally be unable to move forward with the case.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

Zak Goldstein 6/7/23 Zak Goldstein 6/7/23

Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Range v. Attorney General. In Range, the Third Circuit held that the federal felon in possession of a firearm law, 18 U.S.C. § 922(g)(1), is unconstitutional as applied to a plaintiff whose only conviction was for a 30-year-old non-violent fraud offense. Under Range, prosecutors throughout the Third Circuit, which includes Pennsylvania, New Jersey, and Delaware, will now have significant difficulties in bringing prosecutions against defendants who are found with firearms which they would otherwise not be allowed to possess due to non-violent convictions. The case, however, leaves open the questions of exactly which convictions will still prohibit a person from possessing a firearm and whether a more recent non-violent offense could still trigger the prohibition on firearm possession by a felon.

The Facts of Range

In 1995, Range pleaded guilty in the Lancaster County Court of Common Pleas to one count of making a false statement to obtain food stamps. At the time, a violation of that statute was classified as a a misdemeanor of the first degree under Pennsylvania law. A misdemeanor of the first degree may be punished by up to five years in prison. Range had lied about his income on the food stamp application, and he received a sentence of probation. He also had to pay restitution.

Range’s conviction, however, prohibited him from possessing a firearm or ammunition. Under the federal law, §922(g), anyone with a felony conviction generally may not possess a firearm that has been transported in interstate commerce.

The federal definition of a felony, however, can be somewhat confusing. The federal statute defines a felony as any federal offense punishable by more than one year in prison regardless of the sentence that the defendant actually received. This means that a defendant who pleaded guilty to conspiracy to commit securities fraud, which could have a five year maximum, would be prohibited from possessing a firearm even if the defendant received a probationary sentence or a prison sentence of one year or less.

The federal definition of “felony” also includes state court crimes. But for state court crimes which have been designated by the state as a misdemeanor, the law only prohibits firearm possession if the offense of conviction is punishable by more than two years.

Pennsylvania has three degrees of graded misdemeanors as well as various ungraded misdemeanors. Misdemeanors of the third degree are punishable by up to a year in prison, and misdemeanors of the second degree are punishable by up to two years in prison. First offense DUIs and drug possession charges are ungraded misdemeanors. For example, a first DUI has a maximum penalty of six months’ incarceration, and possession of a controlled substance has a maximum of one year in prison. Misdemeanors of the first degree, however, are punishable by up to five years in prison. Accordingly, misdemeanors of the first degree prohibit a person from possessing a firearm under federal law even if Pennsylvania law would still allow firearm ownership. This means that even some DUI offenses may trigger a permanent, lifetime bar on firearm possession under federal law because many second and third DUI offenses may be graded as misdemeanors of the first degree or worse. Likewise, a second offense possession of a controlled substance usually carries a maximum of three years in jail, so that offense also would trigger a lifetime ban on firearm possession.

In short, a conviction for any federal offense with a maximum penalty of more than one year or any state misdemeanor with a maximum of more than two years would trigger a lifetime ban on firearm possession under federal law. Prior to Range, this was true regardless of the nature of the offense or the sentence that the defendant received; the only thing that mattered was the maximum possible sentence.

Range, however, filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania seeking a declaration that the federal statute violates the Second Amendment as applied to him. He argued that but for the statute, he would purchase a gun for self-defense or for hunting. And he argued that because his only conviction was for a thirty-year-old non-violent state court misdemeanor, the statute unconstitutionally violates his right to possess a firearm.

The Third Circuit’s Ruling

In a somewhat surprising ruling, the Third Circuit went en banc (meaning more than three judges heard the case) and overwhelmingly voted that the statute prohibiting firearm ownership for all federal felons did in fact violate Range’s Second Amendment rights. The Court’s analysis focused primarily on the United States Supreme Court’s recent ruling in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. There, the United States Supreme Court struck down New York’s prohibition on carrying a firearm outside of the home. The Court also provided an entirely new rubric for testing the constitutionality of firearms regulations. Bruen requires a court to focus on whether the Second Amendment applies to a person and his proposed conduct. If it does, then the government bears the burden of proof to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

Here, the Court found that Range is one of the people to whom the Second Amendment applies because he is a citizen of the United States. Therefore, the government had to try to justify the regulation prohibiting from possessing a firearm by pointing to similar laws existing around the time of the founding of the United States. The Court ultimately concluded that there were no similar laws which would have prohibited someone with an old, non-violent fraud offense from permanently possessing a firearm. Accordingly, the statute is unconstitutional as applied to Range, and it may not be applied to him or people like him. Unless the United States Supreme Court decides to review the case, Range may possess a firearm for hunting or self-defense.

The question remains as to how broadly the courts will read this opinion. For example, the Court did not find that felons convicted of violent crimes may still possess firearms. It also did not really define non-violent offenses as there are all sorts of crimes that could be considered violent or not depending on one’s definition. Finally, it did not clarify how old an offense should be before it no longer matters. Had Range’s conviction been more recent, for example, would the prohibition have been constitutional.

In the short term, there will be numerous challenges to both federal and state firearms regulations, and it appears that no regulation is safe. Exactly which crimes prohibit possession and for how long is now debatable. Laws prohibiting people under 21 or who have active protection from abuse orders against them from possessing a firearm may also be unconstitutional. A Texas federal appellate court found that the federal prohibition on possessing a firearm while being the subject of an active PFA order is unconstitutional, and other courts have found that states may not prohibit 18 - 20 year olds from carrying firearms. It remains to be seen whether background check laws and even straw purchase laws may be enforced by the police and prosecutors. Ultimately, these decisions will be decided by the courts, and many statutes may have to be revised by various legislatures. And while many laws may eventually be struck down, you should not assume that any given law is unconstitutional as violating a statute could still have enormous consequences. However, if you have been charged with illegal firearm possession, you should immediately speak with an attorney. There may be constitutional challenges to the statute under which the charges were filed.

Facing criminal charges? We can help.

Zak Goldstein 5/31/23 Zak Goldstein 5/31/23

PA Superior Court: Unprovoked Flight in High Crime Area Still Justifies Stop of Suspect

The Pennsylvania Superior Court has decided the case of Commonwealth v. Barnes, holding that unprovoked flight in a high crime area justifies the detention of the person fleeing even if the police do not make any other observations of criminal activity. This is true even if the police observe no other factors that could give rise to reasonable suspicion - unprovoked flight and a high crime area, with nothing more, is enough for the police to stop someone and potentially frisk them.

The Facts of Barnes

In Barnes, the police were traveling in a police car at an intersection in a high crime area. The police department considered the area to be so bad that they routinely had a police car simply park at that corner at all times in order to try to prevent crime. The officers were driving in the area when they observed a group of about five or six people on the northeast corner of 8th and Clearfield. The group began to scatter as the police approached, and each member began walking in a different direction.

The defendant began walking southbound towards the patrol car with at least one other male. One of the officers got out of the car and turned his flash light on. The defendant then ran. The officers chased him, and the defendant eventually tripped and fell. The officers caught him, saw that he had a fanny pack, and they started to frisk the fanny pack. They asked if he had a gun in it, and he said yes. They found a gun in the fanny pack. The defendant then said he was on probation and did not have a license to carry.

The Motion to Suppress

The trial court granted the defendant’s motion to suppress, finding that police stopped him without reasonable suspicion or probable cause because they observed nothing more than flight in a high crime area. The court reasoned that because the police had no specific information about the defendant, did not see any criminal activity, and were not responding to any kind of radio or 911 call, they had no reason to stop the defendant. Therefore, the court suppressed the gun, and the Commonwealth appealed.

The Superior Court Appeal

The Superior Court promptly reversed the suppression order. The court noted that the case law has long held that unprovoked flight from police in a high crime area justifies an investigative detention of the suspect. Therefore, the police were allowed to chase the defendant and try to figure out why he ran away from them for seemingly no reason. Mere presence in a high crime area alone does not justify a stop, but when that presence is coupled with unprovoked flight, the police may investigate. There is no requirement that the police see specific criminal activity or receive a 911 call directing them to stop the defendant.

As the defendant had fled for no reason and had a bag which could have contained a gun, the police were then justified in asking if the bag had a gun in it. The court ruled that the police had not actually arrested the defendant before finding the gun - they had just tried to stop him to figure out what was going on. Therefore, the Superior Court reversed the order granting the motion to suppress and remanded the case for trial. The defendant will now face trial on the firearms charges.