Philadelphia Criminal Defense Blog
Can My Probation Officer Search My Cell Phone?
A probation officer must have reasonable suspicion in order to search a probationer or parolee's cell phone.
Probation and Parole Searches of Cell Phones
The Pennsylvania Superior Court has just decided the case of Commonwealth v. Murray, rejecting the defendant’s challenge to his conviction on corpus delicti grounds and holding that a probation officer or parole agent may search a probationer’s cell phone without a search warrant.
Commonwealth v. Murray
In Murray, the defendant was charged with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105. Murray’s Pennsylvania State Parole Agent became suspicious that Murray may have been involved in criminal activity after the Agent visited Murray’s group home for a home visit and Murray was not present. When Murray next reported to the parole office, the agent asked him about his living situation and why he had moved without permission. Murray explained that he had been threatened by a housemate with a gun. Murray told the agent that he wrestled the gun away from the housemate and gave it to another acquittance.
Because Murray admitted to possessing a firearm, the agent took him into custody and proceeded to read the text messages on his cell phone. The agent found two incriminating text messages which had been sent right before Murray reported. One told a friend: “Yo, Kel if you didn’t hear from me by tonight I am locked up. So, my stuff is over 1247 West Huntingdon Street.” The other stated: “And the thing I was telling you about that I took from the bully is in the bathroom right under the tub.”
Of course, parole agents went to search the group home at 1246 West Huntingdon Street and found a gun under the tub in the bathroom. The agents then called the police and gave the gun to the police. The police then charged Murray with possessing a firearm as a felon.
Murray moved to exclude the statements made to the parole agent regarding the gun and also moved to suppress the results of the warrantless search of his cell phone. The trial court denied both motions. Murray was convicted of the gun charge and sentenced to 4.5 – 9 years in prison.
On appeal, Murray raised two main issues. First, he argued that the Commonwealth failed to satisfy the corpus delicti rule because it failed to show that a crime had been committed prior to introducing the statements made by Murray. Second, he argued that the parole agent should have been required to get a warrant before searching his cell phone.
The Corpus Delicti Rule
The Superior Court rejected both arguments. First, the Superior Court rejected the corpus delicti challenge. The corpus delicti rule is a rule of evidence which prohibits the prosecution from introducing an incriminating statement against the defendant unless the prosecution can first show that a crime has occurred. The prosecution does not have to prove the crime beyond a reasonable doubt, but it must show that the evidence is more consistent with a crime than with an accident. The corpus delicti, latin for “body of the crime,” may be proven by circumstantial evidence.
Here, the parole agents found a gun in a group home where Murray and numerous other parolees lived. The gun was hidden inside a plastic bag under a bathtub in the only bathroom in the boarding house. Therefore, the Court concluded that because the gun was hidden in such a way, it was more likely than not that the person to whom the gun belonged possessed it illegally. Accordingly, Murray’s statement about possessing the gun did not violate the corpus delicti rule.
Probation Officers May Search a Cell Phone Without a Warrant
Second, the Superior Court rejected Murray’s challenge to the warrantless search of his cell phone. In many situations, the police may search a person’s belongings when they take that person into custody as part of an arrest. This is known as the search incident to arrest exception to the warrant requirement. For many years, this exception permitted the police to search an arrestee’s cell phone. Recently, in Riley v. California, the United States Supreme Court held that in general, police must obtain a warrant before searching a cell phone. The Superior Court, however, distinguished Riley by finding that parolee’s and probationer’s have a reduced expectation of privacy. Riley did not involve the cell phone of a suspect who was on probation or parole. Because probation officers and parole agents may conduct a search of a probationer’s house with reasonable suspicion and without having to obtain a warrant, the Superior Court held that the same rule should apply to a cell phone. Thus, a probation officer or parole agent must only have reasonable suspicion in order to search a cell phone.
The Court concluded that the agent has reasonable suspicion to search the phone because Murray admitted to possessing the firearm and giving it to someone else. The agent had reasonable suspicion that the phone could contain text messages discussing the gun or photos of Murray with the gun. Therefore, the Court affirmed the trial court’s decision to deny the Motion to Suppress.
Philadelphia Criminal Defense Lawyers for Gun Charges
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.
If you are charged with a VUFA offense, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.
Recent Case Results - Motion to Suppress and Speedy Trial Motions Granted
Award-Winning Philadelphia Criminal Defense Lawyers
The Philadelphia criminal defense attorneys of Goldstein Mehta LLC continue to obtain outstanding results both in and out of the court room. Our defense lawyers have fought for successful outcomes in cases involving a wide variety of charges including robbery, burglary, assault, probation violations and probation detainers, and gun charges. Some of our recent success stories include:
Commonwealth v. G. – Motion to Suppress Confession for Lack of Miranda Warnings Granted in Shooting Case
Criminal Defense Lawyer Zak T. Goldstein, Esq.
In Commonwealth v. G., Attorney Goldstein successfully moved for the suppression of an incriminating statement in a case in which the defendant was charged with gun charges including Violations of the Uniform Firearms Act (“VUFA”) Sections 6108, 6106, and 6105 as well as conspiracy, tampering with evidence, and recklessly endangering another person. The Commonwealth alleged that G. accompanied his co-defendants to a location where a shooting broke out. After the complainants returned fire and shot one of the co-defendants, G. allegedly took the gun and hid it. When G. went to visit his friend at the hospital, police arrested him and began interrogating him, resulting in a confession which implicated G. in hiding the gun.
Attorney Goldstein moved to suppress the statement and the firearm due to violations of the Miranda rule. Pennsylvania and federal law both require the police to read suspects their Miranda warnings prior to interrogating them. Prior to asking any questions which could lead to incriminating answers, police must advise a suspect who has been arrested and taken into custody that the suspect has:
The right to remain silent,
The right to an attorney and that the attorney will be paid for by the government if the suspect cannot afford an attorney, and
That anything the suspect says can be used against them in court.
Shortly before trial, prosecutors admitted that detectives had actually interrogated G. twice. First, they interrogated him immediately upon his arrival at the police station when they had not yet provided him with Miranda warnings at that time. After obtaining a confession, police quickly provided G. with Miranda warnings, questioned him again, and obtained a signed statement.
Attorney Goldstein successfully moved to have both statements suppressed due to detective’s failure to provide Miranda warnings prior to the first interrogation. Under federal law, police may not intentionally fail to provide Miranda warnings in order to obtain a confession, then provide warnings, and quickly re-interrogate the defendant after providing the warnings. Instead, federal courts have applied a sort of “good faith exception” when evaluating whether prosecutors may use a second, Mirandized statement which is substantially similar to a prior un-Mirandized statement. Where police make a mistake in failing to provide Miranda warnings or where the circumstances change enough so that the second statement is not directly related to the first, the statement may become admissible. The Commonwealth attempted to justify the failure to warn by arguing that it had been inadvertent and that there was a break in the chain between the first and second interrogations due to the passage of time.
Here, Attorney Goldstein successfully argued that the police intentionally failed to provide Miranda warnings during the first statement. Additionally, there was no break in the chain between the two interrogations. The second interrogation happened almost immediately, took place in the same location, and involved the same police detective. The trial court agreed and granted the Motion to Suppress, ruling that both statements could not be used at trial. Once the statements were excluded, the Commonwealth agreed that it would not appeal the court’s ruling if G. accepted a plea deal for a misdemeanor charge and probation. The successful Motion to Suppress helped G. avoid a felony gun conviction and years in state prison.
Commonwealth v. A. – Robbery, Burglary, and Assault Charges Dismissed for Speedy Trial Violation.
In Commonwealth v. A., Attorney Goldstein successfully moved to have all charges against the client dismissed due to the prosecution’s violation of Pennsylvania Speedy Trial Rules, specifiically Pennsylvania Rule of Criminal Procedure 600(A). A. and a co-defendant were charged with dressing up as police officers and forcing their way into a massage parlor. Once inside, the defendants allegedly demanded money from the employees. The employees called the police, and the defendants were arrested inside the massage parlor. The Commonwealth immediately brought charges for robbery, burglary, assault, and other related charges.
Unfortunately for the prosecution, the Commonwealth brought the charges without completing its investigation. At the first trial listing, the Commonwealth was not prepared to proceed because it had improperly failed to turn over critical witness statements and evidence in advance of trial. The trial court marked the continuance as a Commonwealth continuance request, and by the time the second jury trial listing arrived, the defendant had been awaiting trial for two years.
Philadelphia Criminal Lawyer Zak T. Goldstein, Esq.
Pennsylvania Rule of Criminal Procedure 600(A) requires that all criminal defendants be brought to trial within 365 days of the filing of the criminal Complaint. There are exceptions for things like court continuances and circumstances outside of the prosecution’s control, but in order to qualify for an exception, the Commonwealth must show that its prosecutors acted with due diligence in prosecuting the case. In this case, Attorney Goldstein successfully argued that the judge at the first trial listing had already found that the prosecution acted without due diligence in failing to provide witness statements and other discovery materials in advance of the first trial date. Because the Commonwealth never asked the first judge to reconsider the ruling in writing, Rule 600 barred the Commonwealth from asking the new trial judge to reconsider the first judge’s ruling without some showing of obvious error on the part of the first judge. The court agreed and dismissed all of the charges in this extremely serious case.
Commonwealth v. M. – Car Theft Charges Dismissed at Preliminary Hearing
In Commonwealth v. M., the client was charged with multiple counts of Receiving Stolen Property, Theft by Unlawful Taking, Unauthorized Use of an Automobile, and Theft from a Motor Vehicle. Prosecutors alleged that in one case, M. stole the complainant’s car and drove it around for a night before leaving it abandoned on a nearby street. Further, numerous valuable items were missing from the car, leading to additional allegations that M. had stolen the items.
In a second case which had been joined for the preliminary hearing, prosecutors alleged that M. broke into a parked car, stole valuable items, and transported those items to his house. When prosecutors executed a search warrant on M.'s house, they found M. and another gentleman in the living room along with the stolen items. Neither man was closer to the items, said anything incriminating, or attempted to flee, and the other man's hospital ID had actually been found by police in the stolen car in the first case.
In both cases, the prosecution attempted to rely entirely on hearsay at the preliminary hearing under the Superior Court's opinion in Commonwealth v. Ricker. The prosecution sought to have a police detective, who had no personal knowledge of who took the car or took items from the other car, testify that a witness who failed to appear for court saw M. driving the car on the night in question.
Attorney Goldstein’s repeated objections to this hearsay testimony led to it being excluded from evidence at the preliminary hearing, and without the hearsay, the evidence was completely insufficient for the preliminary hearing judge to hold M. for court. This was particularly true in light of the fact that the other gentleman's hospital wristband was found by police in the stolen car. Accordingly, the court dismissed all charges against M. This case shows that even with the trend of judges permitting more and more hearsay at preliminary hearings, there are still limits. This is especially true in Philadelphia where judges tend to require that witnesses have some level of personal knowledge before they will hold a case for court.
Probation Detainers Lifted – In the last six weeks, our Philadelphia criminal defense attorneys have successfully moved to have probation detainers lifted for three separate clients who were on probation and subsequently arrested on new charges. This includes the lifting of a probation detainer for a client who was on probation for a gun charge and who was arrested on a new case of Possession with the Intent to Deliver.
State v. D. – Prosecution Agrees to Dismiss All Charges in New Jersey Prison Contraband Case
In State v. D., the client was charged with third degree indictable offenses in New Jersey for allegedly smuggling drugs into the prison during a visit with a friend. The prosecution obtained both video of the incident and phone calls which it claimed implicated D. in the offense. After convincing the Assistant Prosecutor that even if real, the phone calls would not be admissible against D. due to violations of New Jersey wiretap and recording laws, the prosecution agreed to dismiss all charges. D. will avoid a felony conviction and jail time.
Commonwealth v. K. – All Charges Dismissed in Third Strike Carjacking (Robbery of a Motor Vehicle) Case.
K. was charged with stealing his ex-girlfriend’s car by snatching the keys out of her hand and driving off in the car. Although this allegation would only have been Robbery as a felony of the second degree, the case became a third strike and a carjacking because of the fact that K. allegedly took a car. Carjacking (Robbery of a Motor Vehicle) is considered a crime of violence under Pennsylvania law for purposes of the three strikes rule. Due to prior convictions, K. would have faced a mandatory 25-50 years in prison if convicted of Robbery of a Motor Vehicle because carjacking is a “strike” case. Fortunately, our criminal defense attorneys were able to have all charges dismissed at the preliminary hearing level.
Commonwealth v. J. – Our criminal defense lawyers were able to successfully negotiate a misdemeanor offer of probation for a client who was initially charged with F1 Strangulation, Robbery, and Aggravated Assault. First, we were able to have the strangulation charge dismissed at the preliminary hearing and the other felonies graded as felonies of the second degree. Once the felonies were no longer F1 strike offenses, the Commonwealth’s offer substantially improved, and we were eventually able to negotiate a misdemeanor probationary offer for the client, thereby avoiding jail time and a felony conviction.
Criminal Defense Attorney Demetra P. Mehta, Esq.
Commonwealth v. A. – All charges against A. were dismissed after our defense lawyers negotiated for A. to participate in the domestic violence diversionary program. After A. completed community service, counseling, and paid a small fine, the Commonwealth withdrew Simple Assault, Terroristic Threats, and Recklessly Endangering Another Person charges against A.
Commonwealth v. R. - The client was arrested and charged with Robbery, Assault, and related charges while on probation for a serious offense. Because there was clear video of the incident occurring, the client was hoping to obtain a plea deal for the shortest possible sentence. The client's previous attorney had been unable to negotiate for anything less than a 1-2 year state prison sentence. After retaining Goldstein Mehta LLC, our defense lawyers were able to negotiate a sentence of 11.5 - 23 months with work release eligibility and no additional jail time on the direct probation violation.
Charged with a crime? Speak with a Philadelphia Criminal Defense Lawyer Today
Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers
If you are facing criminal charges or are interested in appealing a conviction, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully resolved countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.
Parole Petitions and Petitions for Early Parole in Philadelphia
If you are serving a county jail sentence, it may be possible to get out sooner than you think. Learn more about parole petitions here.
Philadelphia, PA Criminal Defense Lawyers for County Parole Petitions
If your loved one is serving a county prison sentence in Philadelphia or one of the surrounding counties, the Philadelphia criminal defense lawyers of Goldstein Mehta LLC can help make sure they are considered for parole at their minimum or even earlier. With few exceptions, Pennsylvania law requires that every jail sentence have a minimum and a maximum. For example, a defendant who is convicted of selling drugs in Philadelphia could receive a sentence of 11.5 – 23 months of incarceration in the Philadelphia Prison System followed by a period of probation. In that case, the minimum sentence would be 11.5 months in jail, and the maximum sentence would be 23 months. In any case in which the maximum sentence is less than two years, the defendant would be incarcerated in the county jail instead of in a State Prison. For cases with a maximum of two or more years, the defendant would serve the sentence in a State Correctional Institution. The procedures for obtaining parole differ tremendously for county sentences and state sentences, and we are often able to help clients who received county sentences obtain parole at their minimum date or even before.
Petitions for County Parole
Our Philadelphia probation and parole lawyers have helped countless clients obtain parole at their minimum sentence or in some cases, even earlier. In most cases, the defendant must serve the minimum sentence before becoming eligible for parole. This means that in the above example, the defendant who was convicted of Possession with the Intent to Deliver would have to serve 11.5 months in custody before being released. However, whether or not the defendant will actually be released immediately at the minimum date depends on the sentencing order. If the sentencing judge orders that the defendant receive immediate parole at the minimum, then the defendant would be released as soon as the prison calculates that the defendant has completed the 11.5 month minimum sentence.
If the sentencing judge does not order immediate parole at the time of sentencing, then the defendant will not be automatically paroled at the minimum. Instead, the defendant should retain counsel to file a Parole Petition. In some cases, if the prison system thinks the defendant has done well while in custody, the Philadelphia Probation Department will file the parole petition on the defendant’s behalf. In other cases, the Probation Department will not automatically file the petition, and many people fall through the cracks if they do not retain counsel.
If the defendant was not granted immediate parole and the Probation Department does not file a parole petition (or the sentencing judge declines to rule on the petition or has denied it), we can help. Our criminal defense attorneys can file a parole petition with the defendant’s sentencing judge asking the judge to grant parole and release the defendant from the prison system. In order to increase the likelihood of a successful petition, we will investigate the client's background and speak with family and friends in order to highlight the reasons why the defendant should be paroled. For example, helpful factors in obtaining parole could include the following:
Lack of a significant prior criminal record,
Good behavior while in custody,
Significant support from family and friends in the community,
Participation in drug treatment and other programs while in custody and a documented plan for continuing or obtaining treatment once released, and,
Work history and the prospects of employment in the community once released from custody.
Accordingly, our criminal defense lawyers will work to highlight the good things about the defendant and the good things that the defendant has done while in custody in order to show the sentencing judge that the defendant should be released. We will also work to schedule a hearing on the parole petition as quickly as possible. Even when the Probation Department files a parole petition on behalf of a inmate, the judge does not necessarily schedule a hearing or rule on the Petition. In that case, we can file our own petition and ask the Judge to schedule a hearing as soon as possible. We are often able to schedule hearings in Philadelphia within a week or two so that we can present the mitigation evidence to the judge and ask the judge to parole the client.
Petitions for Early Parole
In most cases, the sentencing judge expects the defendant to serve the minimum sentence before receiving parole. However, if the defendant receives a longer county sentence of 11.5 – 23 months, it may be possible to file a Petition for Early Parole once the defendant completes a portion of the minimum. If the defendant does not have any major infractions and we are able to arrange for treatment options or work opportunities upon release, we may be able to convince the sentencing judge to parole the defendant before the minimum sentence.
Under Pennsylvania law, judges in the Court of Common Pleas and Philadelphia Municipal Court often retain the power to parole inmates who are in custody in the County prison system. Judges do not decide when an inmate in the state system receives parole, so we cannot file an Early Parole Petition for an inmate who is serving a state sentence. However, if you or your loved one are serving a county sentence, we can evaluate your case and whether there are strong enough reasons for the judge to let the client out early such that it would be worth filing a Petition for Early Parole.
Award-Winning Philadelphia Criminal Defense and Probation Lawyers
Philadelphia Criminal Defense Lawyers Zak T. Goldstein, Esq. and Demetra Mehta, Esq.
Our Philadelphia Criminal Defense Lawyers have successfully defended thousands of clients in criminal cases and probation matters. We have helped clients resolve violations of probation, get detainers lifted, and obtain parole at their minimum and in some cases before the minimum. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 today to speak with one of our award-winning defense attorneys.
PA Superior Court Reverses Order Granting Motion to Suppress For Lack of Specificity in Grounds
What is a Motion to Suppress?
The Motion to Suppress is one of the first lines of defense in any case in which the defendant is charged with possessing some kind of contraband. For a defendant who is charged with the possession of guns or drugs, it may be possible to have the evidence excluded from trial and the charges dismissed if the defendant was subject to an illegal search or seizure. In cases where the prosecution is unable to show that police or other law enforcement officers found the evidence in a manner that complies with the requirements of the United Sates and Pennsylvania Constitutions, the evidence could be suppressed by filing a Motion to Suppress. However, Pennsylvania appellate courts have increasingly required defendants to be very specific when asserting the grounds for the Motion to Suppress in the trial court.
Commonwealth v. Banks
In the case of Commonwealth v. Banks, the Superior Court has reversed an order suppressing a firearm and K2 (synthetic marijuana) whichallegedly belonged to the defendant. The Court concluded that although the trial court found that a constitutional violation had occurred, the defendant’s attorney failed to specifically allege that particular constitutional violation either in his written Motion to Suppress or oral statement of the grounds for the Motion which was made prior to the hearing. Accordingly, the Court found that the Commonwealth did not have a fair opportunity to respond to the alleged constitutional violation, and therefore the suppression order should be reversed.
Banks involved a parole search by Pennsylvania State Parole Agents. According to the agents involved, the Parole Board received an anonymous tip that Banks was violating his parole. Based on the tip, two agents went to Banks’ house and knocked on the door. When Banks emerged from the house, the parole agents questioned him on the front porch. They did not see any contraband in the house when the door was open, and they did not enter the house until after they spoke with Banks. Of course, when the agents asked whether Banks had anything in his house which would violate his parole, Banks freely told them that he had a gun and some synthetic marijuana in the house. Following Banks admissions, the agents entered the house and found the contraband. They then called the police. The police obtained a search warrant and recovered the items.
Standards for Probation Searches and Parole Searches
In Pennsylvania, probation officers and parole agents may conduct two types of searches. They may always make routine home visits in order to check on the probationer or parolee and look for any obvious parole violations. Home visits are limited to a plain-view inspection of a residence. Additionally, if they have reasonable suspicion of a parole violation, then parole agents may conduct a full search of the parolee’s residence. In general, anonymous tips do not provide reasonable suspicion because there is no basis for believing them to be trustworthy. Therefore, Banks’ attorneys filed a Motion to Suppress alleging that the firearm and K2 should be suppressed because the parole agents conducted a home search without reasonable suspicion. They further argued that the search was not part of a routine home visit because the agents went out to the house specifically to investigate the anonymous tip.
The trial court disagreed with Banks’ lawyers in part. The court found that the agents violated Banks’ rights, but for different reasons than those alleged in the Motion to Suppress. It found that the agents did not conduct a home search until after Banks confessed to having a gun and synthetic marijuana, and once Banks confessed, the officers clearly had reasonable suspicion to enter the house. However, the court found that the officers conducted the equivalent of a “Terry” stop on Banks by ordering him to come out of the house and submit to their questions. Therefore, the officers were required to have reasonable suspicion for the stop. Because the stop was based entirely on an anonymous tip, the officers did not have reasonable suspicion, and the contraband that they found was the fruit of the poisonous tree and should be suppressed.
Specificity in Motions to Suppress
On appeal, the Superior Court reversed. The Superior Court found that Banks’ lawyers had failed to comply with Rule 581(D) of the Pennsylvania Rules of Criminal Procedure. Under the rules, the defense must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” In their written motion and subsequent oral grounds, the lawyers mentioned only the suspicion-less search of the residence. They never made any allegation that the interrogation on the porch was conducted without the requisite level of reasonable suspicion. Therefore, the Superior Court held that the Commonwealth was not properly on notice of the grounds for the motion and did not have a fair opportunity to respond. The Court reversed the granting of the motion and remanded the case for trial. It is unclear whether Banks will be able to amend the grounds and re-litigate the motion in the trial court. However, his lawyers will almost certainly try.
Banks is highly illustrative of the fact that the Superior Court is not currently very sympathetic to criminal defendants. The case also shows the importance of litigating in the trial court with a careful focus on the Rules of Criminal Procedure and an eye on making sure that the defendant’s rights are protected in the event of an appeal by either side. If an appellate court can avoid a difficult issue such as whether a gun was properly suppressed by finding waiver on the part of the defense, an appellate court will often do so. Judges do not want to suppress guns, and they will look for ways to avoid doing so. Therefore, it is important to make sure that all possible grounds for a motion to suppress are covered both in the written motion and orally prior to trial. It is also critically important to take all possible steps to protect the record for appeal, which means making appropriate objections and motions so that they are not waived in the event the defendant is convicted at trial.
Award-Winning Philadelphia Criminal Lawyers
Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully represented thousands of clients in both trial and post-trial proceedings. We have won motions to suppress guns, drugs, and other contraband. We will do everything we can to fight for you and obtain the best possible result at trial or on appeal. Call 267-225-2545 for a free criminal defense strategy session today.