Oops. The police lost the video. What now?

What Happens When The Police Lose the Evidence? 

Criminal Defense Lawyer Zak Goldstein

Many burglars are not caught at the scene of the crime. Although sometimes the police may interrupt a burglary in progress and catch the burglar inside the property, it is probably more common for the property owner to arrive home or to work and see the obvious signs that the place has been burglarized – items are missing, windows are smashed, and the place is a mess. That person will call the police, and if the police conduct an investigation, they may make an arrest and charge someone with burglary based on some combination of eyewitness testimony from a bystander or neighbor, video surveillance, forensic evidence like DNA or fingerprints, and possession of the proceeds of the crime.

When the police bring burglary charges later based on some of the above evidence, there are several ways that they could end up arresting the wrong person and charging him or her with this serious felony. For example, the eyewitness testimony could turn out to be faulty; although they may seem certain, the witness may not have had such a great view. Or they may be trying to get back at someone who has wronged them. The fingerprint evidence could be misleading; the fingerprints could have been there for some other reason, or the subjective fingerprint analysis of the lab may be incorrect.

Assuming the video is clear enough to really make out a person’s face, then video surveillance seems like a pretty safe bet. If the video shows the defendant committing the burglary clear as day, then it is likely going to be a tough case for us. That's why most people would probably agree that if the police or the owner of the store have a video of the burglary, they should have to preserve the video so that the defendant can see it when deciding whether to plead guilty or take the case to trial and so that the judge or jury can see that it was actually the defendant who committed the burglary.

Unfortunately, the Superior Court disagrees about what happens when evidence is lost. In Commonwealth v. Williams, No. 526 WDA 2016 (Pa. Super. Ct. 2016), the appellate Court ruled that the trial court erred in precluding a police officer from testifying as to what he saw on a surveillance video that was later accidentally destroyed by the store-owner. In Williams, the prosecution charged the defendant with burglarizing a pizza shop. Although no one was present at the time, store video cameras allegedly caught the defendant committing the burglary. When the store owner showed the video to one of the responding police officers, the officer apparently recognized the defendant on the video and obtained a warrant for his arrest. The officer also instructed the store owner to take steps to make a copy of the video for the police.

By the time the preliminary hearing arrived, the video was lost. The store owner testified that he had accidently destroyed all of the video while attempting to make a copy of it. Nonetheless, the officer was permitted to testify that he saw the defendant on the video at the preliminary hearing, and the defendant was held for court. As the case approached trial, the defense filed a motion to suppress the contents of the video and to preclude the officer from describing the missing video at trial. The trial court conducted a hearing. Despite concluding that the destruction of the video was indeed an accident, the trial court issued an order precluding the officer from testifying that it was the defendant on the video of the burglary. The Commonwealth, without any evidence other than the video it had lost, opted to take an appeal to the Superior Court.

Two Standards for the Destruction of Evidence (Spoliation of Evidence in a Criminal Case)

The Superior Court reversed. The Superior Court recognized that under existing case law, there are two different frameworks for analyzing whether a witness may testify about a description of lost, destroyed or missing evidence at trial. When there is some reason to believe that the evidence is exculpatory, meaning it would show the defendant’s innocence, then the Commonwealth simply may not reference the missing evidence. The defendant does not have to show that the prosecution or police acted in bad faith in failing to secure the evidence.

Alternatively, when the evidence is not materially exculpatory but is instead “potentially useful,” the defendant must show that the police actually acted in bad faith in failing to secure or destroying the video. This is an extremely difficult, if not impossible, standard to meet. The police officers will almost always be able to produce some reasonable, harmless reason for why the evidence was accidentally destroyed. The defense will have very little ability to counteract that. Further, the destroyed evidence is often going to end up in this second category of “potentially useful.” It is difficult for the defendant to prove or even allege that the video would have been materially exculpatory because the defense has never seen it!  

Because the Williams defendant alleged only that the video may have been “potentially useful,” the Superior Court reversed the trial court’s order suppressing the officer’s testimony and remanded the case for further proceedings (presumably in which the officer may testify that he saw the defendant, clear as day, commit a burglary). This leaves the defendant with very little ability to challenge the officer’s testimony. After all, how can the defendant accuse the officer of lying or making a mistake when the defense has not seen the video. Unfortunately, while this decision may seem shocking, this case mostly represents a continuation of what the law has traditionally been in Pennsylvania in regards to destruction of evidence.   

Protecting the Record for Appeal 

Barring a quick and successful appeal, there are two key takeaways from this case: the first is that if you are facing criminal charges, you need a criminal lawyer who knows the law well enough to litigate these motions as more than just an appeal to the sense of fairness of the trial judge. I suspect that even the Superior Court judges who decided this opinion would agree that this is not really fair as we think about it in a non-legal sense. But it is the law that certain standards must be met in order to justify an order suppressing evidence. Therefore, you need a criminal lawyer who will work to establish a record that will either show that the video would have in fact been materially exculpatory or that the police showed bad faith in failing to preserve it. I have not seen the record in this case, and the lawyers here certainly may have tried to do that and simply been unable to do so for reasons beyond their control. Nonetheless, it is critical that you hire a lawyer who knows and will research the law, the appropriate standards and burdens of proof, and who is truly invested in your case.

If You Are Under Investigation or Have Been Charged, Do Not Delay 

Second, Williams illustrates the importance of hiring a criminal defense lawyer immediately when you are facing criminal charges. Even if you are innocent and the police have arrested the wrong person, you cannot just sit back and assume that the store will have video surveillance footage that will exonerate you. Many times, the cameras in the store are not real or do not actually work. In other instances, the store owner or police will destroy the footage through negligence, recklessness, or in rare instances, even intentionally. In Philadelphia court, it is common for cases to be dismissed where the Commonwealth or its witnesses lose evidence even by accident. But the Superior Court does not always uphold these rulings on appeal. That is why you need a criminal lawyer who can start finding exculpatory evidence for you instead of one who will just argue that the Commonwealth’s evidence is not enough.   

Goldstein Mehta LLC: Philadelphia Criminal Defense Lawyers for Burglary Charges and Other Serious Felonies 

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges, you need one of our Philadelphia criminal defense lawyers to take your case seriously and conduct a serious investigation. If there is the possibility of finding video from other cameras on the block or that look out from neighboring stores, we have investigators who can get out there immediately and start looking. If there is the possibility of finding witnesses who the police did not have the time to speak with or interest in interviewing, we can get out there and find them. You need a criminal defense lawyer who has the resources to get someone out there to start investigating your case to find the evidence that will show that you didn’t do it. If you are facing criminal charges in Pennsylvania or New Jersey, the Philadelphia criminal defense lawyers of Goldstein Mehta LLC can help. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session.  

Pennsylvania Motion to Suppress Update: Illegally Seized Drugs May Not Be Introduced at Violation of Probation Hearing

NEW DEFENSES TO PROBATION VIOLATIONS IN PENNSYLVANIA

The Pennsylvania Supreme Court has dramatically re-interpreted search and seizure law for people who are serving sentences of probation or parole. In Commonwealth v. Arter, the Court ruled that “illegally-obtained evidence which is suppressed during criminal proceedings should likewise be suppressed during parole and probation revocation proceedings pursuant to Article I, Section 8 of the Pennsylvania Constitution.”

In plain English, this means that if a defendant who is already on probation or parole wins a motion to suppress the evidence in a new case, the evidence cannot then be used against the defendant to establish a violation of probation in the case for which the defendant was on probation. This holding represents a significant change in Pennsylvania law and an important expansion of privacy rights for probationers and parolees.

Arter involved a case in which the defendant had just been released from prison on charges of illegally carrying a gun and receiving stolen property. Ten days after his release, his parole agent and a police officer were on patrol together in an area known for frequent drug activity. The parole agent saw Mr. Arter hanging out in the area and asked the police officer to stop the car. The parole agent then walked over to Mr. Arter and searched him without permission despite not seeing Mr. Arter actually engaged in any kind of suspicious or criminal activity. The agent recovered crack cocaine and other paraphernalia and arrested Mr. Arter.

Mr. Arter was then charged with a new case of possession with the intent to deliver. He moved to suppress the crack cocaine and other items in the new case. The trial court agreed with Mr. Arter's defense attorneys that Mr. Arter had been stopped and searched by the parole agent without reasonable suspicion, and the court therefore granted the motion to suppress, thereby effectively terminating the new case. 

Undeterred, the Commonwealth moved to introduce the illegally seized evidence against Mr. Arter in a subsequent violation of probation hearing. Mr. Arter's attorneys again objected to the admission of the evidence due to the unconstitutional search and seizure, but the probation court followed then-existing law and permitted the introduction of the evidence. The court revoked Mr. Arter's probation and sentenced him to prison. Mr. Arter then appealed, and the Supreme Court eventually reversed. The Supreme Court ruled that because the probation officer obtained the evidence in an unconstitutional search, the evidence could not be used against Mr. Arter at trial or in the violation of probation hearing. 

illegal probation searches now have consequences

Arter represents a significant change in Pennsylvania law search and seizure. Previously, illegally seized evidence could be used against a defendant who was on probation to establish a violation of that probation. For example, if you were on probation and the police illegally searched your house without a warrant and found a gun, the prosecution could use the gun as evidence of a violation of probation even if you won a motion to suppress on the new gun charges. Now, if the court in the new case grants a motion to suppress, the prosecution cannot use the suppressed evidence in the old probation case. This re-interpretation of the Pennsylvania Constitution, which does not apply in the federal system, precludes the Commonwealth from getting two bites of the apple because the Commonwealth can no longer prosecute someone in a new case, lose a motion to suppress, and then continue to seek punishment in an existing probation case.

DAISY KATES HEARINGS AND OTHER ISSUES

In addition to expanding the privacy rights of the accused and holding police and probation officers accountable for illegal searches, the Pennsylvania Supreme Court’s decision in Arter also raises a number of interesting questions. For example, under Pennsylvania caselaw which existed before this new decision, the Commonwealth could use the evidence in a new case to move to have a probationer found in violation of probation before the new case had been resolved. The defendant could not argue against the constitutionality of the search as a defense to the violation of probation charge. This type of hearing is commonly referred to as a Daisy Kates hearing.

Given the new decision, it is now debatable whether the Commonwealth may continue to move for these hearings. Even if the Commonwealth may move under Daisy Kates, it may be possible for the criminal defense lawyer to ask the probation judge to suppress the illegally obtained evidence in the violation of probation hearing instead of in the new case. If the probation judge finds that the evidence was in fact obtained as the result of an illegal search, it is doubtful that the Commonwealth would be able to continue prosecuting the new case. Therefore, Commonwealth v. Arter both protects the rights of Pennsylvania citizens to be free of illegal searches regardless of whether they are on probation or parole and raises a number of important issues which will likely be litigated in the coming month and years.

our probation lawyers can help

Zak T. Goldstein, Esq - Philadelphia Probation Lawyer

Despite the new decision, different standards probably still apply to the legality of probation and parole searches. In general, probation officers need only reasonable suspicion to search a probationer or parolee instead of the higher standard of probable cause and a search warrant. But even if you are on probation or parole, you still have rights. Arter re-establishes that law enforcement must follow the law when conducting a search. If you or someone you know are facing drug or gun charges, you need the advice of a criminal lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. Contact the probation lawyers of Goldstein Mehta LLC at 267-225-2545 for a complimentary 15-minute criminal defense strategy session.

PA DUI Update - Much of Pennsylvania DUI Law Found Unconstitutional By Superior Court

Changes in Pennsylvania DUI Law

Back in August, I wrote about a potential dramatic change in Driving Under the Influence law brought about by the United States Supreme Court’s decision in Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that it is unconstitutional to criminally penalize a motorist for refusing to submit to a DUI blood test when the police have not obtained a search warrant for the motorist's blood. As many criminal defense lawyers predicted at the time, this holding would lead to challenges to Pennsylvania’s DUI statute.

Constitutional Problems with PA's DUI Statute

In the first Pennsylvania appellate decision since Birchfield, the Pennsylvania Superior Court has ruled that the portion of the statute providing increased penalties for refusal is unconstitutional and that the standard police O’Connell warnings which are given to every motorist prior to a blood draw are unconstitutionally coercive. Therefore, under Commonwealth v. Evans, any blood results obtained after a motorist has been read the O’Connell warnings must be suppressed, and a defendant may not face increased criminal penalties for refusing a blood test.

The first problem with the DUI statute arises from the fact that it provides enhanced criminal penalties for a motorist who refuses the blood draw and is later found guilty of DUI. A second problem stems from the fact that Pennsylvania law requires police officers to provide motorists with O’Connell warnings prior to requesting a blood draw. The O’Connell warnings include a warning that failure to consent to the blood test will result in enhanced criminal penalties should the motorist subsequently be charged with and convicted of Driving Under the Influence. Now that a state may not impose additional penalties for refusal, the O’Connell warnings are not accurate.

In Evans, the defendant was arrested for DUI (sometimes referred to as "DWI") and asked by the arresting officer to submit to a blood test. When the officer asked him to submit to the test, the officer read the standard warnings. Those warnings included the statement that a refusal would lead to increased criminal penalties should the defendant subsequently be convicted of DUI. After hearing the warnings, the defendant agreed to the blood test, and the results ultimately put him in the highest tier for a DUI. This triggered a one year mandatory minimum jail sentence, and the defendant was sentenced to 1-6 years of incarceration in a state prison. 

Following the Birchfield decision, Evans’ attorney moved to suppress the blood results and argued that although Evans consented to the blood draw, the police had obtained his consent through illegal coercion by reading him the now-inaccurate O'Connell warnings. The trial court disagreed and denied the motion to suppress, but the Superior Court has now reversed the decision of the trial court. The Superior Court recognized that subject to certain exceptions, police must obtain a warrant prior to conducting a search, and drawing blood from a DUI suspect counts as a search. One of the exceptions to the warrant requirement is where the defendant voluntarily consents. Therefore, the case turned on whether or not the refusal statute could survive the Birchfield decision and if not, whether the O’Connell warnings are unconstitutionally coercive due to their inaccuracy.

States May Not Impose Criminal Penalties For Refusing A Blood Test Unless Police Have A Warrant

First, the court noted that under Birchfield, Pennsylvania’s implied consent system in which the refusal to submit to testing may result in increased criminal penalties is unconstitutional. Although refusal itself is not a crime because the defendant must be convicted of DUI in order for the increased penalties to apply, the court noted that the statute does clearly impose criminal penalties on the refusal to submit to testing. The statute makes a conviction following the refusal of testing a Tier III offense instead of a Tier I offense. A Tier III offense always carries a mandatory minimum sentence of incarceration and a driver’s license suspension, whereas a first Tier I offense requires only six months of probation and no driver’s license suspension. Therefore, the court found that the statute is unconstitutional due to Birchfield's holding that a state may not criminalize the refusal to submit to testing.

Second, once the court recognized that the statute is now unconstitutional, it became clear that the police officer’s advisory to the defendant was partially inaccurate. The officer told him that he would face increased criminal penalties for a refusal, as officers having been doing throughout Pennsylvania for years, but that increased penalty would actually be unconstitutional under Birchfield. Accordingly, the court held that the warnings were unconstitutionally coercive and that the trial court should have suppressed the results of the blood test.

New Defenses to DUI Charges

The holding is critically important for many defendants who have been arrested for DUI and either refused the blood test or had their blood drawn without a warrant. It is also something to consider when deciding whether to submit to a blood test. Although the failure to submit to a blood test will still result in an automatic driver's license suspension and inferences which may be used against the defendant at trial, it cannot result in increased criminal penalties. 

We Can Help With DUI Charges In Pennsylvania and New Jersey

Philadelphia DUI Lawyers

If you have been arrested for DUI or are even just curious about what to do when the police ask for a blood test, you should consult with an experienced DUI Defense Attorney. There are often defenses available which only an experienced criminal lawyer and DUI attorney will recognize. Although police departments have begun to change the warnings that they will be reading going forward, many defendants have already been read incorrect and unconstitutional warnings. If you have been charged with Driving Under the Influence and the police conducted a blood draw or asked you to submit to a blood draw and you refused, you need an experienced criminal lawyer to evaluate your case, recognize the potential defenses, and make the right legal arguments on your behalf. Call 267-225-2545 today for a free, honest consultation. 

U.S. Judge Becomes First to Exclude Evidence Obtained via Controversial "Stingray" Device

In a groundbreaking opinion out of the Southern District of New York, a federal judge has excluded narcotics evidence obtained when DEA agents used a controversial "stingray" device to locate a suspect's apartment. A cell-site simulator— sometimes referred to as a “StingRay,” “Hailstorm,” or “TriggerFish”—is a device that locates cell phones by mimicking the service provider’s cell tower and forcing cell phones to transmit “pings” to the simulator. The device then calculates the strength of the “pings” until the target phone is pinpointed.

In United States v. Lambis, Drug Enforcement Administration agents used the stingray device to track Lambis' cell phone to a specific apartment. When they arrived at the apartment, they obtained Landis' consent to search the apartment, and they promptly found narcotics in the apartment. Lambis moved to suppress the evidence, arguing that the narcotics should be excluded at trial because the DEA agents had violated the Fourth Amendment by failing to obtain a warrant to track his cell phone using the stingray device. The District Court agreed, finding that "the use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device." 

This is an excellent ruling for anyone who carries a cell phone as it requires the Government to obtain a warrant prior to surreptitiously tracking its citizens using these devices. It also highlights the importance of hiring effective criminal defense counsel when faced with criminal charges as many lawyers who do not focus on criminal defense are unlikely to know about these devices or what to do when a client has been tracked by one. 

Read the Court's Opinion