Philadelphia Criminal Defense Blog

Zak Goldstein 2/21/20 Zak Goldstein 2/21/20

PA Superior Court: No Search Warrant Required to Access Data on Public WiFi Network

The Superior Court has decided the case of Commonwealth v. Dunkins, holding that the police do not need a search warrant to obtain data that is transmitted over a public WiFi network. This decision is significant because people access public WiFi networks on a daily basis and now may have a reduced privacy interest in that activity. If you are a suspect in a crime, the police then can use this information as substantive evidence to arrest you. Despite this information being very personal, Dunkins holds that the police do not need to obtain a search warrant to obtain this information.

Commonwealth v. Dunkins

The incident in question took place on February 2, 2017 at approximately 2:00 AM at Moravian College in Bethlehem, PA. Two men wearing ski masks pretended to be campus police officers and gained access to the dorm room shared by the complainants. The complainants were apparently known drug dealers at Moravian College. When one of the complainants opened the dorm door, one of the masked men punched him and caused him to fall. The masked men then held the students at gunpoint and demanded marijuana and the key to one of the complainant’s footlockers. The masked men accessed the footlocker and stole approximately $1,000 in cash as well as a jar of marijuana.

Several hours later, around 11:00 AM, one of the complainants reported the robbery to the campus officials. A Moravian Campus Police Officer requested that Moravian’s Director of Systems Engineering analyze its wireless network data to compile a list of the students who logged onto the network near the wireless access point in the dormitory where the complainants resided. The campus officials discovered, at the time of the robbery, that there were only three individuals logged onto the campus WiFi at that location who did not reside in that building. Two of the three WiFi users were female. The male user was the defendant, who was also a Moravian student.

The Moravian Campus Police provided this WiFi data to a detective with the Bethlehem Police Department which subsequently took over the investigation. One of the complainants told the detective that the defendant previously “robbed” him by taking marijuana from him without payment in return. The defendant was subsequently interviewed by the police. He denied the accusations and stated he has not been in the complainant’s dormitory since October 2016. This was obviously contradicted by the WiFi records.

Another student who lived in the dorm room next to the defendant told police that the defendant came to his room after midnight on February 3, 2017 and showed off a large display of cash and bragged that he obtained this money in a recent robbery. According to this student, the defendant boasted that he and another individual posed as campus police officers to gain access to the victim’s room and subsequently stole drugs and money from the complainant’s footlocker.

The Motion to Suppress

The defendant was subsequently arrested and charged with robbery, conspiracy, receiving stolen property, and simple assault. The defendant then filed a motion to suppress, arguing that the campus police conducted an illegal search in obtaining the campus WiFi log-on data without first obtaining a warrant. At his suppression hearing, the Moravian Systems Engineering Director explained that in order to utilize Moravian’s WiFi each student must log on to the network with their individual username and password. However, at their initial log-on, students may choose to have their devices automatically long on to the campus WiFi without entering their credentials again. The parties also noted that the defendant had signed the Moravian Student Handbook which indicated that he accepted and understood Moravian’s policies, including its technology rules. These rules specifically state that “users cannot and should not have any expectation of privacy with regard to any data, documents…or other computer files created or stored on computers within or connected to the institution’s network.” After the evidence was presented, the trial court denied the defendant’s motion to suppress.

The defendant then proceeded to a jury trial where he was found guilty of the aforementioned crimes. On January 4, 2019, the trial court imposed an aggregate sentence of five to ten years’ imprisonment. The defendant then filed a post-sentence motion which was denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue as to whether the trial court improperly denied the defendant’s motion to suppress will be addressed.

Does the Fourth Amendment Protect Data that is Generated from Electronic Devices?

Yes. Fourth Amendment protection is not constrained by the type of property in question, but instead whether the person who claims the protection has a legitimate expectation of privacy in the property. Recently, the United States Supreme Court decided the case of Carpenter v. United States in which the Court held that law enforcement officials improperly acquired the defendant’s cell site location information (hereinafter “CSLI”) without a warrant. In that case, the law enforcement officers compelled the defendant’s wireless carriers to provide a record of his CSLI for a four-month period. This allowed the officers to track his movements during the time when robberies had occurred. In that case, the United States Supreme Court found that collecting this CLSI data without a warrant violated the Fourth Amendment.

However, the United States Supreme Court emphasized that this was a narrow opinion. Specifically, the Court said that its decision does not apply to “tower dumps” which is a download of information on all of the devices that were connected to a particular cell site during a particular interval. Additionally, other federal circuit courts have held that a person can lose their privacy interests in their data when they sign employer policies that state their electronic activity can and will be disclosed to third parties. As such, when an individual signs these “contracts,” they can lose their right to challenge the disclosure of their electronic data being transmitted to third parties.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s order denying the defendant’s motion to suppress. In its opinion, the Superior Court declined to overturn the trial court’s decision for several reasons. First, the Superior Court analogized the acquisition of the data from Moravian’s wireless campus to a “tower dump,” which as previously discussed, is permissible under Fourth Amendment law. Additionally, the Superior Court found that the defendant’s specific CSLI was not obtained in this case and therefore the police’s actions were not specifically intrusive to the defendant. Finally, the Superior Court found it persuasive that the defendant voluntarily consented to third parties accessing the data that was transmitted over Moravian’s WiFi systems. Therefore, the Superior Court found that the trial court properly denied his motion to suppress. Additionally, his other issues on appeal were denied, and therefore the defendant will not get a new trial and he will be forced to serve his sentence.

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Zak Goldstein 12/25/19 Zak Goldstein 12/25/19

PA Superior Court: Constructive Possession Allows for Firearms Conviction Even When Firearm Not Immediately Accessible

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gomez, affirming the defendant’s conviction for gun charges even though the gun was not on him and was not immediately accessible to him because it was in a locked safe. The Court also affirmed the defendant’s conviction for receiving stolen property with respect to the firearm, which had been reported stolen, because it found that the circumstances showed a guilty conscience on the part of the defendant. This second part of the holding is important because it highlights the fact that mere possession of stolen property, including a gun, cannot support a conviction for theft or receiving stolen property. Instead, a defendant must have knowledge that the property was stolen.

Commonwealth v. Gomez

The defendant was stopped in Lancaster County, Pennsylvania while operating his vehicle. After he was stopped, he repeatedly refused to provide his license, registration, and insurance information. The defendant was not the sole occupant in the car as there were two other individuals in the car with him. According to the officers, the defendant and his companions were making furtive movements and were acting “strangely.” Specifically, the defendant called his attorney and also invited people on social media to come witness the stop by the police. His companions were flailing their hands and kicking bags. Based on these actions, the officers stated that they believed they were in danger. After repeatedly asking the defendant and his companions to exit the vehicle, the officers broke the window and physically removed them from the car.

The police then searched the vehicle. They found and recovered two firearms that had the defendant’s DNA on them. These firearms had previously been reported stolen. One of the firearms was recovered in a locked safe, while the other was found in the front center console. Also, the key to the safe was found on the defendant’s key ring. In addition to the firearms, the police also recovered heroin, fentanyl, methamphetamine, suboxone, marijuana, and other drug paraphernalia. The defendant was arrested and subsequently charged with possession with the intent to deliver (hereinafter “PWID”), various charges under the uniform firearms act (including persons not to possess a firearm (hereinafter “VUFA 6105”), receiving stolen property, and several traffic related offenses.

The Commonwealth chose to proceed under a bifurcated trial for the charges against the defendant. Specifically, the Commonwealth elected to try the defendant under the VUFA 6105 cases first and then would try him under the remaining charges. The reason the Commonwealth would do this is because they are then allowed to introduce the defendant’s prior conviction showing that he is prohibited from possessing a firearm. In the defendant’s case, he had a prior conviction for PWID which made him ineligible to possess a firearm.

The defendant chose a jury trial for the VUFA 6015 charges. At his trial, the above-mentioned facts were presented as well as his prior PWID convictions. Following the presentation of the evidence, the jury was instructed on the relevant law. Notably, defense counsel did not make any objections. At the conclusion of deliberations, the defendant was found guilty of the two charges. A few months later, the defendant proceeded with a bench trial on his remaining charges. The defendant stipulated to all the evidence presented at his previous trial. He was found guilty of the remaining charges. The defendant was subsequently sentenced to 12.5-25 years of state incarceration. The defendant then filed a timely post-sentence motion which was denied. The defendant then filed a timely appeal.

On appeal, the defendant made three arguments: first, that the evidence was insufficient to establish that he knew the weapons were stolen; second, that the Commonwealth failed to establish that he had actual possession of the gun that was found in the safe (he did not appeal his conviction for the firearm found in the center console); and finally that the trial court did not properly instruct the jury regarding possession of the firearm. For purposes of this blog, only the defendant’s second argument will be addressed.

Can I Be Convicted of a Possessory Offense Even if I am Not Actually Holding the Contraband?

Yes. You can still be convicted of a possessory offense even if you are not in actual physical possession of the contraband. Constructive possession is a legal term of art that allows a trier of fact to find that a defendant was in possession of the contraband even when they are not physically controlling it. To find that someone “constructively possessed” contraband, the finder of fact will analyze the facts to determine if the totality of the circumstances shows that the defendant was the possessor of the contraband. The trier of fact is allowed to rely on circumstantial evidence in making its decision too.

How Can a Prosecutor Prove that I Knew an Object Was Stolen?

Mere possession of a stolen good is not sufficient to convict a defendant of RSP. A prosecutor must prove beyond a reasonable doubt that the defendant knew the object was stolen or should have known that it was. To prove this, a prosecutor, like he can to prove possession, can use circumstantial evidence to show that a defendant knew or should have known an item was stolen. Prosecutors will often use the timing of a stolen good to show that a defendant had knowledge that it was stolen. For example, let’s assume that someone reports their car stolen at 12:00 PM. If a defendant was seen with the vehicle at 12:30 PM, a prosecutor can argue that he stole the car (or at the very least knew it was stolen) given the length of time between when the car was reported stolen and when the defendant was seen with it. This is just one example. Prosecutors can also argue that a defendant’s statement, how he was acting when he was arrested, alterations to the object, etc. can be sufficient proof to show that the defendant knew or should have known the object in question was stolen.

The Superior Court’s Decision

The Superior Court upheld the defendant’s conviction for illegally possessing the firearm in the safe. Regarding whether the evidence was sufficient to find that the defendant possessed the firearm, the court analyzed the facts of the case. The Superior Court found that even though that the gun was in the safe, and not immediately accessible to him, there was sufficient evidence to show that it was his firearm. Specifically, the defendant’s DNA was on the gun; he was in possession of the key to the safe where the gun was found; and the gun was found in his vehicle. As such, the Superior Court held that there was sufficient evidence to convict the defendant of illegally possessing the gun in the safe.

Additionally, the defendant’s other issues that he raised on appeal were also rejected. The Superior Court found that there was sufficient evidence to establish that he knew or should have known that the firearms were stolen. The Superior Court agreed with the defendant’s argument that there was not any direct evidence presented at trial that he knew the guns were stolen. However, the Superior Court found that there was sufficient evidence to establish that he knew or should have known they were stolen. In support of this, the Superior Court referenced the defendant’s prior convictions showing that he was not eligible to possess the firearms and his actions during the traffic stop. The Superior Court conceded “that this is not evidence that he knew the firearms in his possession were stolen…Nevertheless, these circumstances are sufficient to enable a fact-finder to infer that [the] defendant believed that the firearms were probably stolen.” Accordingly, he will be forced to serve his sentence and will not get a new sentencing hearing or a new trial.

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Zak Goldstein 12/22/19 Zak Goldstein 12/22/19

PA Superior Court Reverses Theft Conviction Due to Insufficient Proof of Jurisdiction

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Maldonado-Vallespil, holding that a defendant cannot be convicted of a crime unless the Commonwealth proves that the offense took place in Pennsylvania. In this case, the prosecution simply failed to introduce any evidence whatsoever as to where the theft crime took place.

Commonwealth v. Maldonado-Vallespil

On October 31, 2017, the defendant contacted the complainant. The defendant had been working for the complainant, but on this day, he told the complainant that he would not be working for him anymore. On that same day, the complainant arrived at work and noticed that some of his tools were missing. The complainant then contacted the police. Shortly after the police arrived, the complainant called the defendant with the police present and asked that he return the tools. The defendant admitted to previously having the tools, but he said that he had sold them. The defendant stated he would need to speak with the buyer of the tools to get them back. The Commonwealth never introduced any evidence as to where the defendant was at the time of the call or where the complainant had last seen the tools.

The police told the defendant that he needed to return the tools the following day. No charges were filed that evening so that the defendant would have time to get the tools back. The defendant then reached out to the complainant requesting more time, but his request was denied. The defendant subsequently failed to return the tools. The defendant was then arrested and charged with theft from a motor vehicle, receiving stolen property, and theft by unlawful taking. The defendant elected to have a jury trial.

At the conclusion of the prosecutor’s case, the defendant moved for a judgment of acquittal, arguing that the Commonwealth failed to establish jurisdiction. Following argument, the trial court denied that motion. At the conclusion of the defense’s case, defense counsel again moved for a judgment of acquittal, but again his motion was denied. After deliberations, the jury acquitted the defendant of all charges except receiving stolen property. On that charge, the defendant was then subsequently sentenced to one to five years in a state correctional facility. The defendant filed a timely appeal. On appeal, he argued that the trial court erroneously denied his motion for judgment of acquittal because the Commonwealth failed to establish the location of the criminal act.

Why does the location of the crime matter?

The reason it matters is because in Pennsylvania (and everywhere else in the United States), a person can only be convicted for a crime in the state in which they committed said crime. In Pennsylvania, jurisdiction is governed by 18 Pa. C.S.A. § 102. Specifically, §102(a)(1) states that an individual can only be convicted if “the conduct of which is an element of the offense or the result which is such an element that occurs within this Commonwealth.” Further, in Pennsylvania, it is not enough that the crime took place in Pennsylvania. The Commonwealth must also establish the particular county in which the crime occurred because district attorneys only have jurisdiction to prosecute cases that occurred in their particular county. In other words, if a defendant commits a crime in Philadelphia, the District Attorney for Bucks County ordinarily cannot prosecute the case unless certain exceptions apply. This is why, if you have ever watched a preliminary hearing in Philadelphia, one of the first questions a prosecutor will ask is whether a particular location is in the city and county of Philadelphia. The reason they do that is so they can establish jurisdiction.

The Superior Court’s Decision

In a divided opinion, the Superior Court held that the Commonwealth failed to establish jurisdiction and thus the defendant’s conviction must be vacated. In its opinion, the Superior Court carefully analyzed the trial record. After doing so, the Superior Court found that “nowhere in the testimony presented at trial is there any indication that [the defendant] or the tools were within the Commonwealth when [he] ‘received, retained, or disposed’ the tools.” More specifically, the Superior Court stated “the Commonwealth never established the defendant’s location, at the time he received, retained or disposed of the tools.” As such, the defendant’s conviction will be vacated, and he will not be subjected to another trial.

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Goldstein Mehta LLC Theft Defense Lawyers

Zak Goldstein 10/14/19 Zak Goldstein 10/14/19

PA Superior Court: Double Jeopardy Protections Do Not Prevent Multiple Prosecutions for Unrelated but Similar Burglaries and Thefts

The Pennsylvania Superior Court decided the case of Commonwealth v. Jefferson, holding that a defendant is not entitled to Double Jeopardy relief when he pleads guilty to cases that were not part of the same criminal episode as his remaining open cases. This is not a surprising decision given the facts of these particular cases. Nonetheless, these cases highlight another tool that defense attorneys can use to fight the charges against their clients.

Commonwealth v. Jefferson

The defendant had multiple cases involving theft and burglary-related charges. The facts of each one will be discussed in the subsequent paragraphs. The first case occurred on October 19, 2015. On that date, a witness observed the defendant and another individual in the backyard of a home located on Rittenhouse Street in Philadelphia. The witness, who lived in the neighborhood and knew the homeowner, did not recognize the two men. After a brief conversation, the defendant and the other individual entered a vehicle and left. The witness called 911 to report the incident and provided the number on the license plate to the authorities. Additionally, upon inspection of the home, the homeowner noticed that there were pry marks along the metal frame of the door. The defendant did not have permission to be inside the homeowner’s residence. The defendant was subsequently charged with attempted burglary, criminal mischief, and conspiracy.

The second case involved an incident that took placed on Mansfield Avenue in Philadelphia. The resident of the property in question observed the defendant and another individual break into this home. This resident saw his basement door open which caused him to run outside to flag down a police officer. After finding an officer, he jogged back home and observed the defendant running across the awnings of his home as well as nearby buildings. He also noticed that a black SUV (the same car that was used in the Rittenhouse burglary), which was later to be determined stolen, was parked in the driveway of his residence. The defendant was charged with two separate dockets: the first was burglary, criminal mischief, and other charges, the second docket was for receipt of stolen property, and unauthorized use of a motor vehicle.

While the defendant was awaiting trial on the above cases, he was subsequently charged with six separate dockets with one count of criminal mischief at each case. These charges stemmed from the previously mentioned flight from the Mansfield Avenue residence which resulted in the defendant damaging six awnings during his escape. This resulted in thousands of dollars in damage to these residences. The defendant pleaded guilty to all six of these criminal mischief cases.

After the defendant pleaded guilty to these six other cases, he filed motions seeking to bar prosecution of the more serious burglary cases. The defendant argued that prosecution was barred by 18 Pa.C.S. § 110(1)(ii) which prohibits subsequent prosecutions for cases that arise from the same criminal episode. The trial court denied his motion, with the exception of the criminal mischief charge in the Mansfield burglary case. The defendant then filed an interlocutory appeal arguing that the trial court improperly denied his motion to dismiss the remaining cases against him. On appeal, the Commonwealth conceded that the Mansfield burglary should be dismissed pursuant to Rule 110 because the flight from the burglary, which damaged the awnings, was part of the same criminal incident. However, the Commonwealth argued that the stolen car and the Rittenhouse burglary cases should not be dismissed because they were not related to the Mansfield burglary..

What is Rule 110?

Rule 110 is Pennsylvania’s statute that prohibits multiple prosecutions that arise from the same criminal episode. In other words, it is the codified version of both the Pennsylvania and United States Constitutions’ prohibition against Double Jeopardy. There is a four-part test to determine whether subsequent prosecution should be barred:

The former prosecution must have resulted in an acquittal or conviction;
The current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution;
The prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and
The current offense occurred within the same judicial district as the former prosecution.

If all of these elements are met, then the case should be dismissed. As a practical matter, attorneys usually only litigate the second element because the other elements are easy to determine whether they have been satisfied. In the instant case, the Commonwealth only argued that the second element had not been satisfied, meaning the Commonwealth argued that the incidents were unrelated.

The Superior Court’s Decision

The Superior Court denied the defendant’s appeal. The Superior Court held that there was no logical relationship between the Rittenhouse burglary case, the stolen car, and the awnings cases. The awnings cases were the result of the defendant fleeing the scene from the Mansfield burglary. As such, it had no connection to the Rittenhouse burglary. Further, the Superior Court rejected the defendant’s argument that the use of the same stolen car in both burglaries connected the incidents for purposes of triggering double jeopardy protections. Therefore, the defendant will have to face trial for both the Rittenhouse burglary and the stolen car cases.

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Criminal Defense Lawyers Demetra Mehta and Zak Goldstein