The Pennsylvania Supreme Court has decided the case of Commonwealth v. Gill, holding that the Superior Court erred when it reversed the trial court’s ruling that permitted the defendant to introduce evidence of other burglaries in an attempt to show that someone else had committed the burglary in this case.
Recently, in the case of Commonwealth v. F.S., Criminal Defense Attorney Zak T. Goldstein, Esquire, obtained a full acquittal for a client charged with stealing a car. Specifically, F.S. was charged with Theft by Unlawful Taking (F3), Receiving Stolen Property (F3), Conspiracy (F3), and Unauthorized Use of an Automobile (M2). The Commonwealth alleged that shortly before New Year’s Eve, the complainant had met a woman at a restaurant in Philadelphia. They left the restaurant together, and on the way to their next destination, they stopped for gas. When the complainant went inside to pay for the gas, the woman drove off in his car. The complainant promptly reported the vehicle stolen.
Approximately two or three days later, Philadelphia Police Officers found the car in a South Philadelphia neighborhood. The car was pulled over on the side of the road. F.S. and the woman who had taken the car were both in the vehicle. F.S. was in the driver’s seat, and the woman who had stolen the car from the complainant was in the backseat. Police approached the vehicle and asked for an explanation from F.S. and the woman. The woman did not make any statements, but F.S. told the police that he was friends with the woman and that she had asked him to drive. He denied having any knowledge that the car was stolen, and there was also nothing about the car that should have given off any warning signs. It was not a luxury vehicle, the ignition and locks were intact, and there was no other damage which would suggest to a reasonable person that it was stolen. Nonetheless, police arrested F.S. and charged him with participating in the auto theft.
The Philadelphia Municipal Court held a preliminary hearing on the charges a few weeks later. At the preliminary hearing, Attorney Goldstein cross-examined the officer on whether there was anything about the vehicle that should have warned F.S. that he was driving a stolen car. By showing that there was nothing obviously wrong with the car and that F.S. did not run away, act nervous, or say anything incriminating, Attorney Goldstein was able to have the charges related to actually stealing the vehicle (Theft by Unlawful Taking and Receiving Stolen Property) dismissed at the preliminary hearing. The court then scheduled the case for a trial in the Municipal Court.
At the Municipal Court, Attorney Goldstein made similar arguments in defending against the Unauthorized Use of an Automobile (M2) and Conspiracy charges. F.S. was not involved in the actual theft of the vehicle, there was nothing which should have suggested to him that there was a problem with it, and the police did not know anything about the relationship between F.S. and the woman who had stolen the car or whether she had told him that it was stolen. Attorney Goldstein also introduced character evidence on behalf of F.S. – meaning that F.S. has a reputation in the community for being a peaceful, law-abiding citizen, and that reputation alone should be enough to find F.S. not guilty of the charges.
Ultimately, the Municipal Court judge agreed and found F.S. Not Guilty of both the Conspiracy and Unauthorized Use of an Automobile charges. In general, it is often difficult to defend against Unauthorized Use charges because the Unauthorized Use of an Automobile statute appears to contain no mens rea element. Receiving Stolen Property requires the prosecution to prove that the defendant knew or suspected that the car was stolen, but the Unauthorized Use of an Automobile statute suggests that it is illegally simply to operate someone else’s car without permission even if you do not know that you do not have permission. However, the Pennsylvania Supreme Court has concluded in an appellate opinion that even though the statute appears to impose strict liability, the Commonwealth must actually show that the defendant was reckless in choosing to operate the car – meaning the defendant actually knew of a substantial risk that he or she did not have permission to operate the car. Armed with this key case law and the character evidence, Attorney Goldstein was able to obtain a full acquittal on all charges.
This case also illustrates the importance of the Matthews factors in defending against theft charges and receiving stolen property charges. Although the police often arrest a suspect whenever he or she is found in possession of stolen property, the mere possession of stolen property is not a crime. Instead, the prosecution must be able to show that the defendant knew or suspected that the property was stolen. In a case called Commonwealth v. Matthews, the appellate courts provided some of the factors that a judge or jury should look at in deciding whether a defendant likely had knowledge that the property was stolen. These factors include: 1) the condition of the property – is there something about it that suggests that it was stolen, 2) the amount of time which has passed since the property was stolen, 3) the defendant’s behavior when confronted – did the defendant act nervous or attempt to flee, or did the defendant provide a reasonable explanation for the possession of the stolen property. This case illustrates that if the prosecution cannot prove that the defendant knew the property was stolen, then the prosecution cannot obtain a conviction.
Other Courtroom Wins
In addition to the full acquittal in Commonwealth v. F.S., our criminal defense attorneys were also able to obtain a number of important victories in the courtroom. First, we have recently successfully litigated motions for the early termination of probation in the Philadelphia Court of Common Pleas. In both cases, the clients were on probation for serious charges such as Robbery and illegal gun possession, and they had been sentenced years ago to significant periods of incarceration followed by lengthy probationary sentences. However, they had not been in trouble in a number of years. Our attorneys were able to file motions to terminate the probation early and convince their back judges that they were no longer in need of supervision by the Philadelphia Probation Department.
Second, we were also able to negotiate the decertification of adult criminal charges for a juvenile client. In this case, the juvenile client was charged in two separate cases with gunpoint robbery and strong-arm robbery as an adult even though he was under the age of 18 at the time of the offenses. He was also on probation with the juvenile court system. By obtaining information about the juvenile client’s background and presenting it to the District Attorney’s office, we were able to convince prosecutors to decertify the adult criminal charges to juvenile court, where the client was sentenced to a residential juvenile treatment facility instead of state prison.
Finally, our attorneys have also obtained entry into the ARD program for multiple clients charged with DUI, including clients who had prior records of misdemeanor convictions.
FACING CRIMINAL CHARGES? WE CAN HELP.
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
The Superior Court has decided the case of Commonwealth v. Milburn, finding that the trial court properly denied the defendant’s Motion to Suppress identification. In Milburn, the court ultimately concluded that the police had reasonable suspicion to stop the defendant, thereby defeating his Fourth Amendment suppression claim. They also found that police did not conduct an improperly suggestive “show up” procedure, and so the trial court properly rejected his due process claim.
The Facts of Commonwealth v. Milburn
On May 4, 2015, the complainant was robbed at gunpoint on North Broad Street in Philadelphia. The robber took the complainant’s iPhone and a backpack containing clothing and medication. This incident took place under a streetlight that was approximately five feet away from the complainant, and he alleged that he was able to see the assailant clearly. After the incident, the assailant instructed the complainant to walk away, which he did. However, he did see the assailant leave the scene in a vehicle with another individual.
The complainant immediately called 9-1-1 and gave the dispatcher a description of his assailant as African American, with a muscular build, medium complexion, and facial hair, and the complainant noted that the robber was wearing black jeans or sweat pants and a gray hoodie sweatshirt. Police arrived on scene and spoke with the complainant. The officers then began to survey the neighborhood while accompanied by the complainant. They utilized the complainant’s “Find My iPhone” application and attempted to locate his phone. However, they were not immediately successful.
A short time later, the officers tried using the “Find My iPhone” application again. This time, they received a notification that the complainant’s phone was in the area of 5th and Erie Avenue in Philadelphia. The officers proceeded to that area and found an A-Plus Mini market. The officers saw a van driving northbound through the gas station parking lot, but there were not any individuals on foot in that area. The van proceeded to exit the lot, but the officers felt that it was driving erratically. The officers then activated their lights. When the van stopped, the officers exited their vehicles and approached with their guns drawn.
As the officers approached the vehicle, they ordered the driver and front seat passenger, the defendant, to place their hands on the steering wheel and dashboard. The driver complied, but the defendant did not. One of the officers claimed that he saw the defendant place a small semiautomatic handgun under his seat. The officers retrieved the gun and placed the defendant in handcuffs. Inside the vehicle, the officer saw a backpack, medication, clothing, and three additional occupants.
As the officers walked the defendant towards the back of the van, the complainant began jumping in his seat in the police car, pointing at the defendant, and nodding his head to indicate that he recognized the defendant as the perpetrator. Police arrested the defendant, conducted a search incident to arrest, and found the complainant’s phone in the defendant’s pocket. The defendant claimed that he had just purchased the phone for ten dollars. The complainant also identified one of the backseat passengers as the second robber. The police obtained a search warrant for the van, and in the van, they found the complainant’s work uniform and name tag. Prosecutors charged the defendant with Robbery, various gun charges, Possession of an Instrument of Crime (“PIC”), Conspiracy, and related charges.
The Motion to Suppress
The defendant filed a motion to suppress the physical evidence as well as the complainant’s post-incident identification. The trial court denied both the motion to suppress the physical evidence and the complainant’s identification. The defendant elected to proceed by way of jury trial, and the jury found him guilty of Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in Public in Philadelphia, and PIC. The court sentenced him to 7 ½ to 20 years’ incarceration. He appealed to the Superior Court.
What is a Motion to Suppress an Identification?
Although not as common as motions to suppress physical evidence or statements, a motion to suppress a post-incident identification may be an important tactic in the defense of a criminal case, particularly cases involving Robbery and Burglary charges. However, over the years, Pennsylvania appellate courts have made these motions difficult to win. In general, there are two types of motion to suppress identification. First, the defense may move to exclude a post-incident identification if the circumstances of the identification are such that the identification is so unreliable that the witness should not be allowed to testify to it. These types of motions typically involve unduly suggestive police procedures and complainants who did not have a great opportunity to observe the perpetrator of the crime. Second, the defense may also move to exclude an identification where the police illegally stopped or arrested the defendant and the identification procedure only took place because the defendant was unlawfully in custody. In this situation, the identification would violate the defendant’s Fourth Amendment rights as it would be the fruit of the poisonous tree of the unlawful stop. The court would then exclude the out-of-court identification and conduct a separate analysis of whether there is an independent basis for the witness to make an in-court identification of the defendant.
Generally, an unlawfully obtained pretrial identification will only be excluded from trial if it was obtained by a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification or if it was tainted by illegal police conduct as to deny the accused due process of law. If a defendant challenges the identification by filing a motion to suppress, the Commonwealth must prove that the identification procedure did not violate the accused’s right to due process or the right to counsel.
In determining whether to admit contested identification evidence when the issue is not whether the Fourth Amendment was violated, the trial court must consider: 1) the opportunity of the witness to view the perpetrator at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of his prior description of the perpetrator at the confrontation; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and confrontation. Suggestiveness in the identification process is a factor to be considered, but it is not dispositive. In other words, courts often will not prohibit a post-incident identification merely because it was suggestive. As noted in Milburn, the most important factor in addressing the reliability of an identification is the witness’s opportunity to observe the perpetrator at the time of the crime.
To give an extreme example of an impermissible post-incident identification, let’s assume that a defendant is accused of punching a complainant in the back of the head and stealing her purse. This is a robbery. The incident happens in a matter of seconds and the complainant was only able to see the back of her assailant and determine that he was Caucasian, wearing a white shirt and blue jeans. The police then, two hours later, bring two people, but only one is in handcuffs. One is a Caucasian wearing a white shirt and blue jeans, while the other is also a Caucasian man, and is wearing a white shirt, but instead of blue jeans is wearing gym shorts. The one wearing blue jeans is in handcuffs. Neither of these individuals have the complainant’s purse on them. The officer then proceeds to tell the complainant that one of these two is the perpetrator. Consequently, the complainant proceeds to pick the one wearing blue jeans and in handcuffs.
In this hypothetical, the defendant would have a very good chance of suppressing the post-incident identification. Why? First, the defendant has a strong argument that there was no probable cause or reasonable suspicion to stop him. A Caucasian man wearing a white t-shirt and blue jeans is not very descriptive and arguably lots of people who would match that description. As such, the defendant in this hypothetical would have a good chance of suppressing the identification on these grounds alone.
However, this is not his only ground to exclude the identification. The defendant could also argue that it should be suppressed because it was suggestive and the complainant had a limited opportunity to observe the assailant. The whole incident only lasted a matter of seconds. Additionally, the hypothetical complainant was not able to see her assailant’s face and was able to give, at best, a very vague description. Finally, the tactics used by the police were highly suggestive. The officer only brought two people to the identification, and only one fit the general description of the assailant. Further, only one of them was in handcuffs. Additionally, the officer told the complainant that one of these people was the one who robbed her and thus suggested that it was the one wearing handcuffs. Thus, this defendant would have strong grounds for suppressing the identification both on Fourth Amendment and Due Process grounds.
Most cases, however, are not this egregious. And over the years the Pennsylvania Superior Court has rarely ruled in favor of the defense. The Superior Court has given great deference to the witness’s supposed opportunity to observe, while ignoring very relevant facts that can skew and taint that person’s memory. For example, if a suspect is in handcuffs during the identification, that does not make it per se impermissibly suggestive even though a reasonable person may believe that because the suspect is in handcuffs, that must be the person who committed the crime.
The Court’s Analysis in Milburn
In Milburn, the Superior Court held that the post-incident identification was not unduly suggestive. The court focused on the complainant’s ability to observe the defendant during the incident. Specifically, the court found that the complainant had ample opportunity to view the defendant’s face during the commission of the crime. The court also focused on the close proximity between the defendant and the complainant, the time between the incident and when Appellant was arrested (three minutes), and how the complainant reacted when he first saw Appellant. The court gave little significance to the fact that Appellant was the only person handcuffed during the identification. Thus, the court found that the identification was not unduly suggestive. Likewise, the Court found that the police had reasonable suspicion to stop the van. The police received information from Find my iPhone, which they had successfully used before on numerous occasions, traveled to the area, which was a high crime area, and saw the van driving erratically as if the driver was not focused on the road. Given the close proximity to the scene of the crime, this gave the police reasonable suspicion to stop the van, and once they stopped the van, they had probable cause to arrest the defendant because they saw the gun in plain view. Therefore, the court also denied the motion to suppress on Fourth Amendment grounds, as well.
Milburn is an illustration of the type of case in which the defendant is unlikely to win a motion to suppress identification. However, it is likely that the law in this area may shift back at least somewhat in the favor of the defense given the rise in police body cameras. Prior to the advent of body worn cameras, the trial court could simply take a witness’s word for it that the witness had a great view of the perpetrator and was certain that he or she had picked out the right person. As the witness tells the story and testifies numerous times ranging from the statements to police to the preliminary hearing to the motions hearing, the witness becomes more and more certain that he or she has in fact picked out the right person. The body cameras, however, often show that at the time of the incident, the witness was not so sure. For example, the witness may not have been able to give a detailed or accurate description to police. Or the camera could show that the police were not particularly neutral in asking the witness to make an identification. In these cases, appellate courts may begin to show less deference to a witness’s claim of certainty when the witness is on video stating something different. Therefore, this is an area of law that is extremely likely to be affected as police increasingly wear body cameras.
Facing criminal charges? We can help.
If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense attorneys have successfully defended thousands of clients. We have litigated all types of pre-trial motions to suppress and litigated cases involving charges such as Robbery, Burglary, Aggravated Assault and Attempted murder to verdict before judges and juries throughout Pennsylvania and New Jersey. We offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.
The United States Supreme Court has decided the case of Carpenter v. United States, holding that police must obtain a search warrant based on probable cause prior to getting cell phone location data from a cell phone provider. In Carpenter, law enforcement officers had obtained cell phone location data for the defendant which linked the defendant to various gunpoint robberies without a search warrant. Therefore, the court reversed the defendant’s conviction and remanded the case for a new trial.
The Facts of Carpenter v. United States
In 2011, police arrested four men for robbing a number of Radio Shack and T-Mobile stores in Detroit. One of the men confessed that over the previous four months, the group (along with other individuals) had robbed nine different stories in Michigan and Ohio. The suspect identified 15 other people who had participated in the robberies. He gave the FBI some of their cell phone numbers. The FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.
Based on this information, the FBI began to suspect Timothy Carpenter, the defendant, of participating in some of the robberies. The FBI obtained court orders under the Stored Communications Act to obtain cell phone records for Carpenter and other suspects. That statute permitted the FBI to compel the disclosure of cell phone records from the cell phone provider based on a showing of specific and articulable facts that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. These court orders are not the same as a search warrant, and the showing necessary to obtain one is much lower than the probable cause standard which law enforcement officers must meet when seeking a search warrant.
The FBI agents obtained two orders from federal magistrate judges directing MetroPCS and Sprint to disclose cell site location data for Carpenter’s phones. The first order sought 152 days of cell-site records from MetroPCS, and MetroPCS produced 127 days worth of records. The second order directed Sprint to produce two days of records for when Carpenter’s phone was roaming in Ohio, and Sprint produced the two days worth of records. In total, the FBI obtained 12,898 location points cataloging Carpenter’s movements – an average of 101 data points per day.
The Criminal Charges Against Carpenter
The Government eventually charged Carpenter in federal court with six counts of robbery and six counts of carrying a firearm during a federal crime of violence in violation of 18 U.S.C. Sec. 924(c) and 1951(a). Prior to trial, Carpenter’s defense attorneys filed a motion to suppress the cell phone location data, arguing that the FBI violated the Fourth Amendment when it obtained the location data without a search warrant supported by probable cause. The trial court denied the motion to suppress, and the Court of Appeals affirmed.
Carpenter proceeded to trial, and seven of his co-conspirators testified against him. They indicated that he was the leader of the robbery operation. In addition, an FBI agent offered expert testimony regarding the cell phone data. The agent explained that each time a cell phone taps into a wireless network, the carrier logs a time-stamped record of the cell site and the particular sector that were used. With this information, the FBI agent was able to produce maps that placed Carpenter’s phone near the scene of four of the charged robberies. According to the Government, this data showed that Carpenter was right where the robbery occurred at the exact time of the robbery. The jury found Carpenter guilty of all of the charges except one of the gun charges, and the trial court sentenced him to more than 100 years in prison.
The Court of Appeals affirmed the trial court’s ruling on the motion to suppress. It held that Carpenter lacked a reasonable expectation of privacy in the cell phone location data because the information had been shared with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers in order to use the phone, the court concluded that the business records produced by the carriers are not subject to Fourth Amendment protection on the basis that there is no reasonable expectation of privacy in something that a person has shared with someone else.
The Supreme Court Appeal
Carpenter’s defense lawyers appealed to the United States Supreme Court, and the Supreme Court accepted the case. In what it described as a narrow opinion, the Supreme Court reversed the conviction and ruled that the trial court should have granted the motion to suppress the cell phone location data. The court noted a number of recent opinions in which the Fourth Amendment has been applied to protect not just places, but also other types of information that people would expect to be private. For example, in Kyllo v. United States, the court held that police could not use a thermal imager to detect heat radiating from the side a defendant’s home (as part of searching for a marijuana grow operation) without a search warrant. Likewise, in Riley v. United States, the court found that law enforcement generally must obtain a search warrant prior to searching a suspect’s cell phone and that the search incident to arrest exception to the warrant requirement does not apply to a cell phone. Finally, in United States v. Jones, the Supreme Court held that police must obtain a search warrant prior to secretly planting a GPS tracker underneath a suspect’s car and monitoring the tracker for 28 days.
At the same time, the court noted that the third-party doctrine would normally defeat Carpenter’s claim. The third-party doctrine provides that police are not required to obtain a search warrant in order to obtain information which a person has voluntarily shared with third parties. Thus, police may obtain bank records via subpoena without obtaining a search warrant because a person has voluntarily shared their financial information with the bank. Likewise, police need not obtain a search warrant in order to obtain a list of outgoing phone numbers dialed on a landline telephone because the information provided by such a pen register is limited and the numbers are used by the telephone company for a variety of legitimate business purposes.
After analyzing these various cases, the Supreme Court ultimately concluded that the FBI should have obtained a search warrant for the cell phone data. Although the third-party doctrine has typically applied in cases such as this, where the defendant shared all of the information voluntarily with the cell phone companies, there is something different about a system that creates such a detailed and comprehensive record of the person’s movements. Accordingly, given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. The court therefore held that an individual maintains a legitimate expectation of privacy in the record of his or her physical movements as captured by the cell phone companies.
Although the court reversed the conviction in this case, it did note that the decision is meant to be a narrow one. It does not necessarily apply to real-time cell phone location data or “tower dumps” (a download of information on all of the devices that connected to a particular cell site during a particular interval). It should also not call into question the prior opinions on bank records and pen registers or prevent the use of evidence obtained from security cameras. Finally, it does not consider other collection techniques involving foreign affairs or national security, and there may also be situations in which exigent circumstances eliminate the need for a search warrant.
Facing criminal charges? We can help.
If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.