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

NEW DEFENSES TO PROBATION VIOLATIONS IN PENNSYLVANIA

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

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

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

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

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

illegal probation searches now have consequences

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

DAISY KATES HEARINGS AND OTHER ISSUES

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

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

our probation lawyers can help

Zak T. Goldstein, Esq - Philadelphia Probation Lawyer

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

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

Changes in Pennsylvania DUI Law

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

Constitutional Problems with PA's DUI Statute

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

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

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

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

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

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

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

New Defenses to DUI Charges

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

We Can Help With DUI Charges In Pennsylvania and New Jersey

Philadelphia DUI Lawyers

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

How do violations of probation work, and how can I fight them?

We are sticking with the theme of probation this week. To that end, we just updated our guide to probation violation hearings and motions to lift a detainer. Please click here to learn more about the types of probation violations, the likely consequences, how detainers work, and what can be done to mitigate the consequences of a probation violation or have a detainer lifted. 

Recent Case Results

Recent Case Results

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC have had several recent successes in the courtroom. These outcomes have included acquittals, successful motions to suppress, and the dismissal of charges before trial. Recent case results include: 

Commonwealth v. K. F. – Motion to Suppress granted.

The defendant was arrested and charged with drug charges including Possession with the Intent to Deliver, Conspiracy, and Simple Possession based on a narcotics officer’s allegation that the defendant engaged in four drug transactions. Prosecutors alleged that when arrested, the defendant possessed three bundles of crack cocaine and hundreds of dollars. Attorney Goldstein moved to suppress the drugs and money and argued that the police had not seen the defendant engaged in drug sales. Instead, police had arrested and searched him without probable cause immediately after he exited his house. Despite the officer’s testimony that he personally observed the defendant engage in the four drug sales, Attorney Goldstein successfully cross examined the officer on his credibility and introduced alibi testimony that showed the defendant could not have engaged in narcotics transactions. Immediately following the testimony, the trial judge granted the motion to suppress and threw out the crack cocaine and United States currency.  

Commonwealth v. J. B. – Not Guilty Attempted Murder and Burglary.

The defendant was charged with Attempted Murder for allegedly storming into the complainant’s house and shooting him in front of a number of witnesses. After numerous pre-trial motions and a week-long jury trial, Attorney Mehta successfully obtained an acquittal on the most serious charges of Attempted Murder and Burglary for J. B. despite the testimony that the defendant had intentionally shot the complainant. The defendant was convicted only of lesser charges and faces substantially less time at sentencing.

Commonwealth v. C. P. – Possession with the Intent to Deliver charges dismissed prior to trial in the Philadelphia Municipal Court.

Commonwealth v. B. L. – Successful negotiation for misdemeanor probationary sentence for defendant charged with felony.

B.L was charged with felony Possession with the Intent to Deliver of crack cocaine. When the prosecution realized that Attorney Goldstein was fully prepared to take the case to trial, the prosecution dropped the felony delivery charge, and Attorney Goldstein negotiated a probationary sentence on a misdemeanor simple possession charge for B. L.  

Commonwealth v. E. H. – Gun, conspiracy, and heroin distribution charges were dismissed at the preliminary hearing following Attorney Goldstein’s cross examination of the arresting officer.

Commonwealth v. D.S. – Simple possession charges dismissed prior to trial.

Our attorneys also obtained substantial bail reductions for many other clients who will now be able to fight their cases from home instead of custody. Of course, every case is different, and past successful results should not be read as a guarantee of similar results in other cases. If you or a loved one are facing criminal charges in Pennsylvania or New Jersey, contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC at 267-225-2545 for a free case evaluation.