Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

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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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.  

Attorney Goldstein Wins Motion to Suppress Firearm in Philadelphia

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to suppress a firearm in the case of Commonwealth v. R.M.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In R.M., three police officers were patrolling Northwest Philadelphia in plainclothes and an unmarked car. They claimed that they saw the defendant driving a car with illegal window tint on all of the windows, so they pulled the car over. When the police approached the car, the defendant was cooperative with them and provided them with all of the paperwork for the vehicle. Nonetheless, one of the officers testified that he could immediately observe the magazine of a gun sticking out from underneath the mat underneath the driver’s feet. The officer asked the defendant if there were any guns or drugs in the car, and when the defendant denied having a gun in the car, the officers pulled him out of the car and searched it. The officers claimed that they only frisked the area around the driver’s seat for officer safety because they could see the magazine and the defendant had denied having a gun in the car. Of course, they did recover a gun and an extended magazine. They claimed to have recovered it from underneath the floor mat. The police arrested R.M., and prosecutors charged him with violations of the uniform firearms act (VUFA) under sections § 6105, § 6106, and § 6108. VUFA § 6105 is a particularly serious charge as it is typically graded as a first-degree felony.

R.M. retained Attorney Goldstein. Following the preliminary hearing, Attorney Goldstein filed a motion to suppress the firearm. Attorney Goldstein argued that police had illegally pulled R.M. over for no real reason and searched the car based on a hunch rather than any actual observation of a magazine or gun.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress. Attorney Goldstein cross-examined the arresting officer extensively on the fact that the officer had not been wearing a body camera even though most Philadelphia Police officers now wear body cameras, the officers failed to comply with virtually all of the police directives governing the behavior of plainclothes officers, the fact that the officers would not have even able to write a ticket for the window tint because they did not have a computer in their car and would have needed uniformed officers to come to the scene, and the absurdity of the story that the gun just happened to be sticking out in plain view.

Attorney Goldstein also called the vehicle’s passenger as a witness. She testified that the police had pulled the car over shortly after she and the driver left a gas station, immediately removed them from the vehicle, and searched the car extensively before finding the gun. She denied that it could have been in plain view.

As the police had not actually seen R.M. do anything illegal and the gun was likely not actually in plain view prior to the search, the trial court found the officers not credible and granted the motion to suppress the gun. Credibility rulings generally cannot be appealed, so the Commonwealth then withdrew the charges. R.M. will be eligible to have them expunged.

The Plain View Exception

Notably, whether the police can search a car without a search warrant if they see contraband in plain view is still debatable. In this case, the officers claimed that they could see the magazine of the gun in plain view. A magazine on its own is not illegal, and having one in a car does not give the police probable cause or reasonable suspicion to search or frisk the car with or without a warrant, but the presence of the magazine along with the defendant’s alleged denial that he had a gun in the car likely would have given the police the ability to search the car. A false denial would tend to suggest that the defendant actually had a gun but was not allowed to have it. The Superior Court has found that the police may conduct a warrantless search of a vehicle when they see contraband in plain view, but the Pennsylvania Supreme Court has granted review in that case and may reach a different conclusion. Either way, the trial judge found that the plain view exception did not apply in this case because the officers were not credible.

This case highlights the importance of retaining an attorney who will conduct a thorough investigation, who will locate and prepare witnesses to testify credibly for the defense, who will be  familiar with the case law and police directives in order to show that the police either did not follow required procedures or the law during a search, and who can effectively cross-examine officers and other witnesses to challenge their credibility at motions and trial.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.  

Third Circuit Finds Laws Prohibiting 18 – 20 Year Olds From Carrying Guns Probably Unconstitutional

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Lara v. Commissioner Pennsylvania State Police, holding that Pennsylvania’s firearm laws, which prohibit 18 – 20-year-olds from carrying firearms, are probably unconstitutional. Federal courts in Pennsylvania and throughout the country have recently found many firearms regulations unconstitutional, and this latest case may have the effect of making Pennsylvania’s VUFA § 6106 and § 6108 statutes unconstitutional when applied to someone who is 18, 19, or 20 because Pennsylvania law prohibits someone who is under 21 from obtaining a license to carry a firearm and Philadelphia bars all public carrying of firearms without a license.

Under 18 Pa.C.S. § 6106(a), 6109(b), and §§ 6101 – 6128, an individual may not carry a concealed firearm without a license, and an individual must also be at least 21 years old to apply for a license. This is true even during a state of emergency. Ordinarily, Pennsylvania citizens may open-carry without a license outside of Philadelphia, but when the state has declared an emergency, an individual may not open carry without a license unless they are actively engaged in a “defense” or one of the fifteen other exceptions in § 6106(b) applies. There are exceptions for transporting a gun home from purchasing it or traveling to and from a shooting range.

The plaintiffs filed suit in federal court against the Commissioner of the Pennsylvania State Police in October 2020 seeking an injunction prohibiting the Commissioner from arresting them for carrying firearms. At that point, Pennsylvania had been in a state of emergency for three years due to COVID-19, the opioid addiction crisis, and Hurricane Ida. Accordingly, the plaintiffs, who were under 21, could not carry firearms outside of their homes openly due to the state of emergency or in a concealed manner because someone under 21 cannot obtain a license to carry. The district court granted the Commonwealth’s motion to dismiss the case. The plaintiffs appealed to the Third Circuit Court of Appeals, and the Third Circuit ruled that the statutes are unconstitutional when applied to 18-to-20-year-old citizens.

Where do these gun challenges come from?

The recent successful challenges to gun regulations come from two United States Supreme Court cases – District of Columbia v. Heller, and Bruen v. New York State Rifle & Pistol Association, Inc.

In Heller, the Supreme Court recognized that an individual has a Second Amendment right to possess a handgun in the home for self-defense regardless of whether they serve in a militia. Any law that banned all firearm possession in the home would therefore be unconstitutional. Specifically, the Court found a DC law which required firearms in the home to be rendered and kept inoperable at all times to be unconstitutional.

Then, in Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect the right to carry a handgun outside the home. Bruen in particular has supported these recent challenges to gun regulations.

The US Supreme Court adopted a two part test for evaluating the legality of firearms regulations.

First, a court determines whether the Second Amendment’s plain text covers an individual’s conduct. If it does, then the Constitution presumptively protects the conduct.

Second, a court determines whether the regulation in question is consistent with the Nation’s historical tradition of firearm regulation. If it is, then the presumption applied as part of the first test is overcome, and the regulation is permissible. If it is not, then the regulation is unconstitutional. In order to prove that a regulation satisfies the second part of the test, the government bears the burden of identifying a “founding-era” historical analogue to the modern firearm regulation. In other words, the government must find similar laws from around 1791, or the regulation is unconstitutional. The laws need not be identical, but they must be very similar.

Here, the Third Circuit ruled in favor of the plaintiffs.

First, it concluded that the Second Amendment plainly applies to the action of carrying a firearm outside of the home and that adults under 21 are among the people protected by the Second Amendment.

Second, it concluded that the government could not point to a historical regulation that is analogous to the laws in question. Although there were similar laws on the books when the Fourteenth Amendment was ratified in 1868, the Court found that the government had to find similar laws from 1791 when the Second Amendment was ratified. In the court’s view, the government could not satisfy this burden, so the statutes are unconstitutional. The only law the government could find was a 1721 law which prohibited “carrying any gun or hunting on the improved or inclosed land of any planation other than his own.” This law had nothing to do with age, so the court found it to be irrelevant to this case. Meanwhile, numerous laws from that time period showed that young adults were actually permitted to or even required to arm themselves and serve in the miliia upon turning 18. Therefore, the Court granted the plaintiffs’ request for an injunction prohibiting the Commissioner from arresting law-abiding 18-to-20 year olds who openly carry firearms during a state of emergency declared by the Commonwealth.

The final impact of the Court’s holding is still open to debate. The Court did not find the statutes to be entirely unconstitutional. Instead, it simply granted an injunction directing the State Police not to arrest 18-to-20-year-olds for openly carrying guns during a state of emergency. The injunction was not technically issued against the Philadelphia Police Commissioner, but he would likely be sued should he ignore it. It also did not address the unique statutes in Philadelphia. This is important because Philadelphia does not allow the open carrying of a firearm without a license to carry. Similarly, for the rest of the state, the statute is arguably applicable only to carrying a firearm during a state of emergency because the statutes only completely prohibit open carry without a license during such a state of emergency. If the state of emergency provision were eliminated, then the laws may be constitutional, and it is not clear whether 18-to-20-year-olds have the right to obtain a license to carry.

It does seem likely, however, that the federal courts would find Pennsylvania’s statutes unconstitutional in Philadelphia because the laws which apply to Philadelphia make it permanently illegal for an 18-to-20-year-old to carry a firearm either openly or in a concealed fashion. Philadelphia never allows open carry without a license, and someone under 21 cannot get a license, so like an 18 year old in the rest of the state during a state of emergency, an 18 year old in Philadelphia can never carry a firearm outside of the home. Accordingly, if you are 18-to-20 years old and charged with carrying a firearm without a license in Philadelphia, you may have a viable motion to dismiss the charges as unconstitutional.

It is important to remember that even though you may have a viable motion to dismiss and the laws may be unconstitutional, the laws are still on the books. The Philadelphia Police are still enforcing them, and the state courts have largely rejected these types of constitutional challenges. Further, the Third Circuit could revisit this opinion en banc, or the United States Supreme Court could grant review. The Supreme Court has accepted appeals in post-Bruen cases challenging gun regulations, and it is very possible that the Supreme Court could decide that many of these regulations are still constitutional and overrule the lower courts. Therefore, it is generally better not to carry a firearm illegally and potentially be the test case in case this opinion does not hold up or the state courts ignore it. Nonetheless, if the Supreme Court approves of these rulings or does not address them, it will become increasingly difficult for the state courts to continue to ignore them. Ultimately, if you have been charged with carrying a firearm without a license or on the streets of Philadelphia and you are under 21, you should speak with one of our experienced gun lawyers today.

Read the Third Circuit’s Opinion

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 Superior Court: “Come Here” Not a Stop

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Jamal Rice, holding that the police did not stop the defendant by saying “come here” after allegedly seeing a gun. The trial court found the defendant was stopped without reasonable suspicion or probable cause when the police ordered the defendant to come here, so it had suppressed a firearm. The Superior Court, however, reversed the grant of the motion to suppress and remanded for a new trial.

The Facts of Commonwealth v. Jamal Rice

In Rice, the police were on patrol in Philadelphia. They were in uniform and in a marked patrol car. They were in an area which had heightened gun violence, homicides, and drugs ales. At around 7:25 pm, they saw the defendant exit a corner store and begin walking eastbound. They saw a gun shaped bulge in his waistband and naturally assumed its as a gun. They drove towards him. He quickly turned around and began walking in the other direction. He then turned onto another street.

The officers followed him and pulled up next to him in their patrol car. The defendant kept walking while looking in their direction. One of the officers said, “come here.” At the same time, the defendant began running. The police chased him. As he ran, the defendant tossed a gun underneath a parked car. The police arrested him and recovered the gun.

Philadelphia prosecutors charged the defendant with various violations of the uniform firearms act (VUFA offenses). Those included carrying a firearm as a prohibited person, carrying a firearm with an obliterated serial number, carrying a concealed firearm without a license, and carrying a firearm on the public streets of Philadelphia.

The Motion to Suppress

The defendant filed a motion to suppress. The officers testified to the above facts at the hearing on the motion. The trial court granted the motion to suppress, finding that police had no reason to believe the defendant could not legally possess a firearm prior to ordering him to come here. Further, the police needed reasonable suspicion that he was engaged in criminal activity to order the defendant to come here because a reasonable person would consider themselves to no longer be free to leave. As the police did not know if the defendant possessed the gun lawfully, the trial court reasoned that they did not have reasonable suspicion to issue commands. The prosecution appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the defendant was not actually stopped before he fled because the one statement of “come here” did not raise a mere encounter to an investigative detention requiring reasonable suspicion or probable cause. In the prosecution’s view, the defendant would have been free to ignore the command. The prosecution emphasized that police did not activate lights/sirens, exit their cars, brandish their weapons, grab the defendant, tell him he could not leave, block his movement, or make any show of force. Instead, they simply said come here, and the defendant then took off and discarded the gun.

The Superior Court agreed with the prosecution and reversed the suppression of the firearm. The Court reasoned that saying come here alone does not turn a mere encounter into an investigative detention without something more. The defendant obviously still felt free to leave as he took off running and threw the gun, and the police did not do anything to detain him prior to his flight. Saying “come here” alone was just a request which the defendant could have disregarded (as he did in this case). Therefore, he was not illegally seized prior to discarding the gun.

The Takeaway

This is a tough one for the defense, and hopefully the defendant files additional appeals. The test for whether police have escalated a mere encounter into an investigatory detention requiring reasonable suspicion is whether a reasonable person would feel free to leave. It’s an objective standard, and it’s not based on what the individual defendant actually believed or did. There is no reasonable person on the planet who would feel free to leave when uniformed police officers pull up in a marked car and order the person to come here. Any reasonable person would feel compelled to follow that command and stop. Indeed, the court noted that the defendant did not stop, but it failed to note that the police also did not let him go - instead, they chased him in both a car and on foot. He wasn’t actually free to leave. Accordingly, the court ignored the reality that he was in fact seized and that any reasonable person would have believed themselves to be seized.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Goldstein Mehta LLLC Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.