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.

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, Rape, and 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.

Zak Goldstein 2/8/20 Zak Goldstein 2/8/20

PA Superior Court: Ordinary Careless Driving Does Not Support Conviction for Homicide by Vehicle

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Superior Court has decided the case of Commonwealth v. Sanders, holding that careless driving is not sufficient to convict a defendant of Homicide by Vehicle. This decision is significant because it recognizes the fact that accidents, even fatal ones, happen and are not necessarily criminal. Thankfully, this decision acts as a check on a prosecutor’s ability to charge a defendant for Homicide by Vehicle when the facts show that the defendant was driving carelessly rather than with gross negligence or recklessness.

Commonwealth v. Sanders

On April 2, 2016, an officer with the Cheltenham Police Department responded to a report of a fatal accident at the intersection of Glenside Avenue and Limeklin Pike in Cheltenham, Montgomery County. Upon arriving at the scene, the officer observed the ninety-three year old victim underneath a SEPTA bus. The driver of the bus, the defendant, was subsequently arrested and charged with homicide by vehicle, careless driving, careless driving causing unintentional death, failure to yield the right of way, and improper turning movement.

At her trial, the Commonwealth called several witnesses in addition to the aforementioned officer. First was another motorist, who was behind the SEPTA bus in the westbound lane of Glenside Avenue at the time of the accident. She testified that as the bus began to make a left-hand turn onto Limeklin Pike, she observed an elderly man begin to cross Limeklin Pike from west to east. The man put his hand up, and then vanished from her sight. She testified that the bus was making a slow, methodical turn. While she was stopped at the light, prior to the bus moving, she did not see the man standing on the corner.

The Commonwealth also called an expert in accident reconstruction. He testified that on the day of the accident, he observed the victim under the SEPTA bus. He also testified that the intersection of where the crash occurred is controlled by a traffic signal and that there are four designated, marked crosswalks. He also testified that he was present for the autopsy of the victim, which indicated that he died of multiple injuries to the trunk and related fractures.

The Commonwealth’s expert also testified that the speed, roadway conditions, weather, and obstructed vision were not contributing factors in this crash. He also reviewed the rules manual for the Surface Transportation and Bus Division from SEPTA, as well as surveillance video taken from inside of the bus. The video shows the defendant picking up and looking at papers as she was stopped at the light. As a result of this distraction, she stopped over the white stop line, in the crosswalk. The expert opined that she may not have been able to see the victim on the diagonal corner waiting to cross.

The video also showed that the defendant was preoccupied with the papers in her hand. At the time she began the turn, there were no other vehicles or pedestrians in the intersection. Before beginning her turn, she only waited 2.33 seconds (which is contrary to SEPTA policy of waiting 4 seconds prior to entering an intersection). The video also showed that the victim was in the crosswalk for approximately 6.75 seconds before being struck by the bus. The expert was also able to determine that the defendant attempted to brake before striking the complainant. The expert finally gave his opinion that the defendant operated her bus in a reckless, careless and negligent manner, which caused the crash.

The defendant also testified at her trial. She testified that she had been driving for SEPTA for approximately 18 years. She testified on the day of the incident, this was the first time that she had driven this route and that she was looking at the map so she could follow the directions. She also testified that she did not see any pedestrians at the intersection. Finally, she testified that as a professional driver, especially of a tandem bus, there is a significant risk of hitting another vehicle or a pedestrian, causing damage or injury.

Following a bench trial, the defendant was convicted of the aforementioned charges. The defendant was then subsequently sentenced to five years’ probation. Following sentencing, the defendant filed timely post-sentence motions, which the trial court denied. She then filed a timely notice of appeal. The defendant filed three issues of appeal, but the Superior Court only addressed her sufficiency of the evidence claim.

What is Homicide by Vehicle?

The crime of Homicide by Vehicle is codified under 75 Pa C.S.A. § 3732. The statute provides:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except relating to [DUI] is guilty of homicide by vehicle.

To convict a defendant under § 3732, the Commonwealth must prove that that the defendant violated a provision of the Motor Vehicles Code and that this violation was a cause of the victim’s death. The violation of the Motor Vehicles Code must be a direct and substantial factor in the victim’s death. Further, the defendant’s conduct must be either reckless or grossly negligent. If the court finds that the defendant’s actions are careless, then it is not sufficient to convict the defendant of § 3732. Finally, to be guilty of § 3732, a person must be aware that there exists a substantial risk that injury will result from their driving and yet continue to drive in such a manager callously disregarding the risk created by their own reckless driving.

The Superior Court’s Decision

The Superior Court reversed the trial court and vacated the defendant’s conviction for § 3732. In the instant case, the trial court agreed that there was sufficient evidence to find that the defendant violated various provisions of the Motor Vehicle Code. However, the Superior Court found that the evidence did not support a finding that she was conscious that her driving created a substantial and unjustifiable risk that would cause injury, but that she nonetheless proceeded to drive in a reckless manner causing the victim’s death. Specifically, the court found persuasive of the facts that this was the first time she drove this route; that the Commonwealth’s expert testified that she may not have been able to see the victim; and that she was looked left, forward, and right before moving to make sure there was no oncoming traffic. As such, the Superior Court found that this was careless driving and this just not enough to convict her of § 3732. Therefore, her conviction for § 3732 is vacated and her case will be remanded for a new sentencing hearing for the remaining charges.

Facing Criminal Charges? We Can Help.

Zak Goldstein 11/3/19 Zak Goldstein 11/3/19

Attorney Goldstein Wins Aggravated Assault (F1) Jury Trial

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a full acquittal in a jury trial on Aggravated Assault charges in the case of Commonwealth v. J.B. Prosecutors charged J.B. with Aggravated Assault (F1), Aggravated Assault (F2), Simple Assault, Possession of an Instrument of Crime, and Recklessly Endangering Another Person, for an incident in which J.B. cut the complainant on her face and hands with a knife. In J.B., the Commonwealth alleged that J.B. and the complainant were roommates who had gotten into a fight after a dispute relating to damage to the complainant’s car. At some point, the fight allegedly escalated from a fist fight when J.B. pulled a switchblade knife and began stabbing the complainant. The complainant then pulled out a machete and began assaulting J.B. with the machete. However, the complainant was the first person to call police, so the police arrested J.B. and recommended that charges be filed against her.

J.B. retained Attorney Goldstein for trial, and J.B. proceeded to trial in front of a Philadelphia jury on a theory of self-defense. Attorney Goldstein’s cross-examination of the complainant on her motive to have started the fight and then lied about it, the fact that she inflicted serious injuries on J.B., and the fact that she is the type of person who carries a machete around quickly convinced the jury that J.B. had acted in self-defense and that the complainant had really been the aggressor. Attorney Goldstein was able to successfully argue to the jury that the complainant had actually been the first person to pull a knife and then had simply won the race to the police and that the police had filed charges without even giving J.B. and her witness the opportunity to tell them what had really happened. Accordingly, the jury deliberated for approximately two hours before acquitting J.B. of all charges. J.B. will be eligible to have all of the charges expunged from her record.

The key to defense in this case was the evidence that J.B. had preserved shortly after the incident. Fortunately, J.B. had documented her injuries by taking high-quality photographs which were extremely compelling. The defense was also able to obtain a copy of the 911 call (which the police would otherwise destroy within thirty days), and the 911 call showed that J.B. had also called police and that police could be heard arresting her without giving her a chance to tell them what happened. Finally, J.B. had preserved important text messages between her and the complainant which showed that J.B. had been trying to resolve the car situation and made it more likely that the complainant was the aggressor. These key pieces of evidence illustrate the importance of speaking with one of our experienced criminal defense attorneys right away if you are facing criminal charges or may be under investigation. Had J.B. waited to retain counsel, this valuable evidence could have been lost. Fortunately, J.B. was fully acquitted of these serious assault charges.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 10/11/19 Zak Goldstein 10/11/19

PA Superior Court Finds Trial Court Properly Dismissed Circumstantial First Degree Murder Case

The Superior Court has decided the case of Commonwealth v. Perez, holding that the evidence that was presented at the preliminary hearing was not sufficient to force the defendant to face trial for the charges of first degree murder and possession of an instrument of a crime. The evidence that was presented against the defendant was entirely circumstantial, and the Court ultimately ruled that it was simply not enough to show even at a preliminary hearing that the defendant probably killed the complainant. This case is important because it shows that the preliminary hearing judge or magistrate should not simply approve charges merely because the Commonwealth has filed them. instead, the judge should review the evidence and determine whether there is really enough for the case to proceed to the trial level.

Commonwealth v. Perez

Two men went to a bar in Philadelphia. When they arrived, the defendant was also there. While one of the men was talking to a friend, the eventual-victim was dancing with a woman about five to eight feet away from the defendant. At approximately 1:50 AM, a bouncer spotted the victim and the defendant pushing one another. The two men were shoving one another in the center of two groups, comprised of between five and fifteen people each, when the bouncer stepped in and separated them. The victim told the bouncer that he and the defendant knew each other and that everything was “cool.”

A few minutes later, the decedent and the defendant were shoving one another again. The bouncer saw the defendant make a movement towards the victim’s neck, but he did not see the defendant actually stab the victim, nor did he observe a weapon of any kind in the defendant’s hands. However, when the bouncer and a colleague stepped in to break up the second shoving match, he noticed that the victim was holding his neck and that blood began “gushing out.” The victim’s friend only noticed something was wrong when the two bouncers moved to separate the victim and the defendant.

The friend then tried to speak with the victim outside of the bar, but the victim was unable to speak due to the severity of the wound. The friend applied pressure on the wound to stop the bleeding. Shortly after doing this, the friend saw the defendant exit the bar. According to the friend, the defendant had blood on his shirt. As such, the friend approached the defendant and punched him in the face because he believed that he was the cause of the victim’s injuries. The defendant then went back into the bar.

Later in the night, the bouncer saw the defendant walking around the bar in a tank top. The bouncer then approached the defendant and asked him why he was not wearing a shirt. The defendant stated that he took off the shirt and threw it in the trashcan after it got covered in blood. The defendant was then detained by the bar’s security not because of the incident, but because he owed $600 on his tab.

At approximately 2:00 AM, a pedestrian alerted a Philadelphia Police Officer of the stabbing. Upon entering the bar, the staff directed the officer to the defendant. The defendant was sitting alone at a table. The defendant was asked if he was involved in a fight. He denied being involved. He was also asked why he was not wearing a shirt. The defendant then showed the officer his bloody shirt. The officer then asked the defendant how he got blood on his shirt and he responded that he got hit. The defendant was subsequently arrested. The police were unable to find the weapon that was used to cut the victim’s throat.

The victim died at the hospital later that day. The medical examiner’s officer determined that his death was caused from a stab wound he sustained to his neck, which severed his jugular vein and trachea. The defendant was then charged with first-degree murder and possession of an instrument of a crime. On March 22, 2017, a preliminary hearing was held. At the hearing, the above facts were introduced into evidence. Additionally, the Commonwealth moved several exhibits into evidence including a DNA laboratory report indicating that the blood found on the defendant’s shirt belonged to the victim. At the conclusion of the hearing, the municipal court judge dismissed the charges for lack of evidence. The Commonwealth refiled charges later that day. The defendant’s case was then brought before the Court of Common Pleas where a different judge again dismissed the case for lack of evidence. The Commonwealth then filed a timely appeal.

What Happens at a Preliminary Hearing?

In Philadelphia, a defendant is only entitled to a preliminary hearing if he or she is charged with a felony. The purpose of the preliminary hearing is to determine whether the Commonwealth has made out a prima facie case for the offenses charged. A prima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Further, at these hearings, the evidence must be considered in the light most favorable to the Commonwealth. At these hearings, the Commonwealth need not prove the elements of the charged crimes beyond a reasonable doubt. Instead, the prima facie evidence standard requires evidence of the existence of each and every element of the crime charged. Finally, and understandably very frustratingly, credibility of the evidence are not factors at this stage. With all of that being said, practically speaking, it is a much easier for the Commonwealth to get a case through the preliminary hearing level than it is for the Commonwealth to obtain a conviction.

The Superior Court’s Decision

The Commonwealth appealed the dismissal of the charges, and the Superior Court upheld the dismissal of the charges against the defendant. Although the Superior Court acknowledged that the Commonwealth has a very low burden to meet at these hearings, the evidence that was presented was simply not sufficient. The Superior Court highlighted that the defendant cooperated with the police, did not leave the scene, and denied his involvement in a fight on the night in question. Further, the Superior Court rejected the Commonwealth’s argument that only the defendant could have committed this crime. In its decision, the Superior Court emphasized that the bouncer did not actually witness the decedent get stabbed nor did he see the defendant with a weapon. As such, the evidence that was presented was not sufficient to establish that the defendant probably committed the crimes of first degree murder and possession of an instrument of a crime. Therefore, the defendant will not have to go to trial on these charges.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein