Philadelphia Criminal Defense Blog
PA Superior Court Rejects Search Warrant Issued on Word of Unproven Confidential Informant
The Use of Confidential Informants in Drug Cases
It is not a secret that the police often use confidential informants in the investigation of narcotics offenses. However, even when police make arrests and prosecutors bring charges based on evidence obtained by confidential informants, the identity of the confidential informant and extent to which police have used the CI in the past often remain a secret. The use of confidential informants is particularly prone to abuse. In cases where courts do not require prosectors to provide information about the identity of the confidential informant and proof of the CI's reliability, the defense is left with few options for challenging or verifying the testimony of the police officer about the evidence allegedly obtained by the CI.
Instead, officers are routinely permitted to testify, often without specifics, that the confidential informant has provided reliable information in the past and should therefore be trusted now. Likewise, despite the constitutional right to cross-examine one’s accusers in a criminal case afforded by the Confrontation Clause, Pennsylvania courts have increasingly accepted police and prosecution arguments that revealing the identity of the confidential informant in any case would jeopardize the safety of the confidential informant. Therefore, courts often deny defense attempts to learn any information about the confidential informant and deny motions to reveal the CI's identity.
Confidential Informants Must Be Reliable In Order to Provide Probable Cause
In Commonwealth v. Charles Manuel (likely no relation to the World Series-winning Phillies manager), the Pennsylvania Superior Court appears to have reached its limit. In many cases, judges take an officer’s word for it on whether the CI has been reliable and whether the CI’s safety would be jeopardized by disclosure to the defense. In Manuel, the Superior Court held that the fact that the CI provided information on one prior occasion which led to an arrest did not sufficiently establish that the CI was reliable enough for police to obtain a search warrant based on the CI’s word alone.
In Manuel, police obtained a search warrant for the defendant’s house based solely on the word of a confidential informant. The confidential informant told officers that he or she had been to the defendant’s house and observed a marijuana grow operation. Police had also used the CI on one prior occasion, and the prior use of the CI led to an arrest. At the time of the investigation, however, the charges stemming from the prior investigation were still pending and had not been adjudicated. Accordingly, officers could not establish that the CI’s prior information was reliable enough to lead to an actual conviction. Finally, officers asserted that they had corroborated the CI's allegations because the CI told the officers the names of the occupants of the house.
After officers checked real estate records and confirmed that the CI had correctly identified the owner of the house, officers applied for a search warrant. In the warrant, the officers indicated that the CI was reliable because the CI’s prior information had led to an arrest and that the public records check provided corroboration of the CI’s allegation that officers would find a grow operation. Because officers wrote that the CI observed the alleged marijuana grow operation, a magistrate granted a search warrant for the property. Of course, when officers executed the search warrant, they did find a marijuana grow operation. The trial judge denied the ensuing motion to suppress, and the defendants were convicted of Possession with the Intent to Deliver marijuana.
On appeal, the Pennsylvania Superior Court reversed the defendants’ convictions. The Court ruled that the trial judge should have granted the motion to suppress because the warrant was lacking in probable cause. In many cases, the word of a confidential informant may be enough to obtain a search warrant. The court noted, for example, that an informant’s tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity. However, there must be some real basis for believing the CI’s information to be reliable. In many cases, the police will use the CI to conduct controlled buys or conduct some other investigation of the defendant in order to corroborate the CI’s allegations. Once the allegations have been corroborated, the officers may obtain a valid search warrant.
Here, however, the officers simply failed to corroborate the allegations of the confidential informant, and there was nothing to suggest that the CI was in fact reliable. Although there is no magic number of arrests or convictions for which a CI must have previously provided information in order to be deemed reliable, it is clear that one prior arrest is not enough. The court must evaluate the totality of the circumstances, but in the absence of some corroboration, one prior arrest is likely insufficient. Because the information from the CI failed to establish probable cause, the warrant was defective. Accordingly, the Superior Court reversed the defendants’ convictions and the trial court’s ruling denying the motion to suppress.
Our Philadelphia Criminal Defense Lawyers Can Help With Drug Charges
Goldstein Mehta LLC - Philadelphia Drug Lawyers
If you or a loved one are under investigation or facing drug charges, we can help. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC today. Our defense attorneys have extensive experience fighting drug charges in Pennsylvania and New Jersey. We have obtained successful results in cases involving alleged observed drug transactions, expert witnesses, and controlled buys involving confidential informants. Call 267-225-2545 for a free, 15-minute criminal defense strategy session.
Contact a Philadelphia Criminal Defense Lawyer Today
Pa Superior Court Finds Merely Paying Witness Not to Testify Does Not Qualify as Witness Intimidation
Witness Intimidation Charges in Pennsylvania
Witness intimidation is a significant problem in criminal court and in Philadelphia specifically. Potential witnesses in criminal cases are often afraid that they could be threatened or harmed for testifying against someone, and that includes witnesses for both the prosecution and defense. For this reason, witness intimidation may be punished very severely upon conviction.
Under Pennsylvania law, a defendant is guilty of Intimidation of Witnesses if, "with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to . . . [a]bsent himself from any proceeding or investigation to which he has been legally summoned." 18 Pa.C.S. § 4952(a)(6).
Does paying a witness not to testify count as witness intimidation?
Given the broad language of the statute, an issue arises when the defendant attempts to pay a witness not to show up to court but the offer of payment is not accompanied by any threats. In Commonwealth v. Evans, the Pennsylvania Superior Court held that a defendant may not be convicted of Witness Intimidation solely for offering to pay or paying a witness not to testify. Instead, there must be some evidence in the record beyond mere speculation that the defendant intended to intimidate the witness. In other words, the offer to pay must at least contain an implied threat that if the witness does not accept the money, there could be consequences.
In Evans, the Appellant was charged with rape and related offenses. While he was incarcerated pending trial, he asked his girlfriend to contact the complainant and offer to pay her not to testify. His girlfriend attempted to call the complainant a number of times, but she was never successful in reaching her. The Commonwealth found out about the Appellant’s activities (likely because prison phone calls are recorded!), and they charged him with Intimidation, Conspiracy, and Solicitation to Commit Witness Intimidation. Following a stipulated bench trial, Appellant was convicted of Solicitation to Commit Witness Intimidation and sentenced to 3.5-10 years consecutive to the 40-80 years he received when he was eventually convicted in the Rape case. Additionally, Appellant’s attempt to pay the complainant was used against him as evidence of a guilty conscience in the Rape trial.
On appeal, the Superior Court reversed Evans’ conviction for Solicitation to Commit Witness Intimidation. The Superior Court noted that in order for the conviction to be upheld, the evidence would have had to show that Evans solicited someone else to commit the crime of Witness Intimidation. A defendant is guilty of Criminal Solicitation to commit a crime if: “with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.” 18 Pa.C.S. § 902(a).
The Superior Court reversed Evans’ conviction for Solicitation because there was no evidence in the record from which the trial judge could have concluded that Evans intended to do anything other than have his girlfriend pay the complainant not to testify. Although he had clearly solicited his girlfriend to do something, he had not solicited her to commit the specific crime of witness intimidation because there was nothing intimidating about the mere offer of money.
Under certain circumstances, there may be other evidence in the record to suggest that an offer of money may amount to witness intimidation. For example, in the case of Commonwealth v. Doughty, the Pennsylvania Supreme Court upheld a witness intimidation conviction that stemmed from a defendant’s offer to pay his wife not to testify where there was other evidence that the defendant intimidated the wife. In that case, the defendant had a history of threatening his wife with violence and had also expressed strong invective when he made the offer to pay. Therefore, the jury could properly convict the defendant of witness intimidation.
In Evans, however, the Appellant had not done anything other than ask his girlfriend to offer money to the complainant. Therefore, it was complete speculation for the trial judge to conclude that the complainant would be intimidated based solely on the nature of the allegations in the rape case. The Superior Court noted that there was no evidence of a history of violent interactions between the Appellant and the victim and no invective conversation making the pecuniary offer to the victim. Instead, the only evidence was Appellant’s request that his girlfriend offer money. Because the word “intimidate” involves some sort of attempt to cause fear, simply offering money does not qualify as intimidation, and the Superior Court reversed Evans’ conviction.
Although Evans will receive a slight reduction in his overall sentence due to the technical elements of the Witness Intimidation statute, we must caution that it is still not a good idea to offer to pay witnesses not to show up. There are likely other charges which the Commonwealth could bring in this type of situation but had overlooked in this case, and the attempt to pay would constitute extremely damaging evidence of a consciousness of guilt at trial. However, it is clear from the court’s opinion that simply offering to pay someone not to come to court does not meet the elements of Pennsylvania’s Witness Intimidation statute.
OUR PHILADELPHIA CRIMINAL LAWYERS CAN HELP IN WITNESS INTIMIDATION CASES
If you or a loved one are facing criminal charges in Pennsylvania or New Jersey, you need the services of an experienced criminal defense attorney. Our Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with us today.
SPEAK WITH A PHILADELPHIA CRIMINAL DEFENSE LAWYER TODAY
The Pennsylvania Extradition Process
Extradition from Pennsylvania to Other States
Philadelphia Extradition Lawyer Zak Goldstein
Extradition from Philadelphia, PA to another state can be a very confusing and slow-moving process. The Philadelphia criminal defense lawyers of Goldstein Mehta LLC can help you navigate this process, protect your rights, and get you out of custody as quickly as possible. Extradition is an issue when the defendant has an arrest warrant from a state other than Pennsylvania and is arrested in Pennsylvania either on that out-of-state warrant or on new charges. The United States Constitution generally requires states to cooperate with each other in turning over prisoners who have warrants in other jurisdictions, and Pennsylvania has enacted laws governing extradition in order to comply with that constitutional provision.
The timeline of the extradition process varies depending on whether the defendant has been arrested on new charges in Pennsylvania or whether the defendant has been arrested solely on the arrest warrant issued by another state. In cases where the defendant has been arrested solely on an out-of-state warrant, the defendant will be processed in the same manner as if the defendant had been arrested on new charges. The defendant will spend approximately 10-20 hours in Philadelphia Police custody before the defendant goes through preliminary arraignment and has bail set by a bail commissioner. At preliminary arraignment, the District Attorney’s Office will file charges pursuant to 42 Pa.C.S. Sec. 9134, Arrest Prior to Requisition, and the court docket will show the case as being listed for a preliminary hearing in Motions Court in the Court of Common Pleas.
However, the District Attorney does not file charges for the purpose of pursuing a conviction. Instead, the charges act as a placeholder while the District Attorney determines if the jurisdiction which issued the arrest warrant intends to spend the money to come pick the defendant up and transport him back to stand trial.
In cases where the defendant has been arrested on new charges in Philadelphia, the extradition case will typically follow the same course. The defendant will undergo preliminary arraignment and have bail set for both for the Fugitive of Justice warrant as well as the new case, and bail will typically be even higher due to the fact that the defendant now has additional charges in Philadelphia. The main difference between extradition when there is a new Philadelphia case and when there is not a new case is that Philadelphia does not have to release the defendant until the Philadelphia case is resolved. This means that a defendant who cannot make bail on the extradition case can be held indefinitely, in some cases for years if the defendant intends to fight the Philadelphia charges at a jury trial, until the Philadelphia charges have been taken care of.
Can I get bail during the extradition process?
Pennsylvania is one of the few states that allows a fugitive who is awaiting extradition to post bail and be released. However, because the defendant was a fugitive, bail is typically going to be very high. Even for minor crimes, bail may be set at $100,000 or more, and the defendant must post 10% in order to be released. If the defendant pays 10% of the bail, then the defendant will be released pending extradition. If the defendant cannot post 10%, then the defendant will be held in custody in the Philadelphia Prison System until the extradition case is resolved. Bail is one area in which an attorney may be able to make a big difference. If you retain an attorney prior to preliminary arraignment, the attorney can be present and argue for the lowest possible bail to be set initially. Likewise, in cases with particularly compelling and deserving circumstances, it may be possible to convince the Motions Court judge to reduce the bail set by the bail commissioner. It is, however, relatively uncommon for Motions Court to reduce bail. in these cases.
HOW LONG DOES EXTRADITION TAKE? HOW LONG CAN I BE HELD ON AN OUT OF STATE WARRANT?
A contested extradition may take up to 120 days to be resolved. Once preliminary arraignment occurs and bail is set, the extradition case will be scheduled for a hearing in Motions Court in the Court of Common Pleas. That hearing will typically be scheduled within a few weeks. This gives the District Attorney’s Office time to get what is called a Governor’s Warrant.
Once the defendant is in custody, the District Attorney’s Office notifies the state which issued the warrant that the defendant is in custody. That state then has to provide paperwork confirming the warrant and informing the Governor of Pennsylvania that the other state intends to pick up the defendant and prosecute the defendant for the charges in that state. In cases involving states which are farther away or in cases involving minor charges, the other state may not want to spend the money and effort involved in getting the defendant back. In that case, the state will notify the District Attorney that they do not intend to seek extradition, and the extradition case will be dismissed.
However, if the state does provide the necessary paperwork, which includes the complaint and identification information of the defendant, then the Governor will issue a Governor’s Warrant which gives Pennsylvania the authority to continue holding the defendant and turn the defendant over to authorities from the other state. The other state will have thirty days from the issuance of a Governor’s Warrant to come pick the defendant up or the defendant should be automatically released. However, in some cases, the defendant will not be automatically released, and it will be necessary to file a motion in Motions Court asking the Motions Court judge to release the defendant.
Should I waive extradition?
Unfortunately, this process can take a long time. It is extremely uncommon for the District Attorney’s Office to know at the first hearing whether or not the defendant is going to be extradited. Therefore, the Motions Court will usually continue the case for thirty days. The Motions Court may continue the case repeatedly because the defendant can be held for up to 90 days before the defendant must be released. If the District Attorney fails to obtain a Governor’s warrant within 90 days, however, the defendant will be released. But if the defendant cannot make bail, then the defendant will remain in custody until 90 days have passed. Therefore, there are cases in which it is advisable for the defendant to waive his or her right to contest extradition. This has the effect of eliminating the 90 day waiting period while prosecutors find out about a Governor’s Warrant. Instead, the 30 day clock for the other state to pick the defendant up begins running form the date that extradition is waived, and this can rapidly speed up the process.
However, it usually only makes sense to waive extradition when the defendant does not have open cases in Philadelphia. That is because once extradition is waived or a Governor’s Warrant is issued, the court will revoke bail and the defendant may no longer pay 10% to get out of custody. If the defendant already paid the 10%, the defendant will be taken back into custody. If there are no other charges in Philadelphia, then the 30-day clock will run, but if there are charges in Philadelphia, the 30-day clock does not begin running until the Philadelphia case is resolved. Therefore, if there is an open case in Philadelphia, waiving extradition will have the effect of revoking the defendant’s bail until the Philadelphia charges are resolved.
A PHILADELPHIA CRIMINAL DEFENSE LAWYER CAN HELP
Goldstein Mehta LLC - PA Extradition Lawyers
Extradition is a confusing and slow-moving process, but there may be ways to speed it up and obtain bail pending extradition. Our Philadelphia criminal defense lawyers will fight to get you or your loved one through this process as quickly as possible. Call 267-225-2545 today for a free, 15-minute criminal defense strategy session.
Recent Case Results - Successful Results in Possession with the Intent to Deliver, Robbery, Protection from Abuse, and Juvenile Cases
The Philadelphia criminal defense lawyers of Goldstein Mehta LLC continue to have success in the courtroom. In the last two months, our attorneys have obtained acquittals, litigated successful motions to suppress, and defended against Protection From Abuse (PFA) Petitions and Professional Licensing issues. Some of our notable recent case results include:
Commonwealth v. T.J. - Gunpoint Robbery charges quashed. The defendant was charged with being the getaway driver in an gunpoint robbery which took place in the early morning hours. The complainant testified at the preliminary hearing that as he was walking home, two men came up and robbed him at gunpoint while a third man waited in a car. The complainant testified that the robbers took his cell phone. Notably, the complainant was able to identify the two men who had exited the car and robbed him, but he had not seen what the person who remained in the car looked like.
Officers testified that when the police tried to pull the car over approximately half an hour later, three or four men exited the vehicle and tried to run. The officer stated that T.J. exited the vehicle from the passenger side of the car and that one of the other men jumped out of the driver's side. Officers found T.J. in an alley approximately 15 minutes later along with the man who jumped out of the driver's side. The complainant identified the man who jumped out of the driver's side as one of the robbers, but he did not recognize T.J.
Attorney Goldstein asked that the case be dismissed at the preliminary hearing. Although the Commonwealth's theory was that the defendant must have been the getaway driver, Attorney Goldstein argued that the defendant had not been identified as actually being present for the robbery or being the third person in the car. Under Pennsylvania appellate precedent, the mere presence of a person at the scene of a crime, even coupled with flight therefrom, is not enough to show that the defendant was part of a conspiracy to commit the crime. Given that T.J. was in the passenger's seat of the vehicle wen the police stopped it half an hour later, Attorney Goldstein argued that T.J. could not have been the getaway driver and that he was not even necessarily in the car at the time of the robbery. If there was enough time for the car to pull over and for people to switch seats, then there was enough time for the car to stop and pick up or drop off other passengers, as well.
The Municipal Court judge who conducted the preliminary hearing refused to dismiss the case, and Attorney Goldstein immediately filed a Motion to Quash asking the Court of Common Pleas to dismiss the case. A Motion to Quash (commonly called a Petition for Writ of Habeas Corpus in the suburban counties) asks the higher-ranking Common Pleas trial judge to review the decision of the magistrate or Municipal Court judge at the preliminary hearing. At the Motion to Quash, the Common Pleas judge reviews the transcripts from the preliminary hearing and can receive new evidence should the Commonwealth choose to present additional testimony. After reviewing the notes of testimony and hearing additional evidence from police witnesses, the trial court agreed with Attorney Goldstein that the Commonwealth had failed to prove even for purposes of a preliminary hearing that T.J. had any involvement in the gunpoint Robbery. Instead, the evidence suggested that T.J. was merely present half an hour later. The court dismissed the case, and T.J. was immediately released from custody.
Commonwealth v. S.M. - Motion to Suppress a significant amount of crack cocaine, drug paraphernalia, and statements granted. S.M. was on state parole at the time of his arrest. Even though S.M. had been reporting as directed, obtained a new job, and was doing well on parole, his Parole Agent testified that he had received information from a police sergeant that S.M. had run from a traffic stop and likely had guns and drugs. However, the Parole Agent did not know the name of the police sergeant who had allegedly called him, did not obtain any information about how the alleged sergeant knew that there would be guns and drugs, and that the agent had done nothing to confirm that the person was, in fact, an actual police sergeant.
Based on this information, the Parole Agent gathered a group of approximately ten other agents and went out and tossed S.M.'s entire house. The Agent testified that when he reached S.M.'s bedroom, S.M. told him that the guns in the closet were not real. The Agent then searched the closet, finding two replica firearms and a significant amount of crack cocaine. The Agent also found a scale and narcotics packaging in other locations in the bedroom.
Followers of this blog will recognize that we have written a great deal about the fact that people who are on probation or parole retain a number of important Fourth Amendment rights. Although State Parole agents are not required to obtain a search warrant prior to conducting a search of a parolee's residence, there are two key limitations on a parole agent's ability to conduct a search: 1) the parole agent may conduct a routine home visit in which the search is limited to a walkthrough of the house and items which are in plain view, and 2) the parole agent may conduct a full blown search of the residence if the parole agent has reasonable suspicion that evidence of parole violations will be found in the parolee's residence.
Here, Attorney Goldstein litigated a Motion to Suppress, arguing that employing ten, armed parole agents in a search of the house far exceeded the scope of a routine home visit and so required reasonable suspicion. Attorney Goldstein further argued that the Parole Agents did not have reasonable suspicion because they had no idea who had actually called them and where that person came up with the information. The trial judge agreed, finding that an essentially anonymous phone call cannot provide reasonable suspicion for a search. Therefore, the court granted the motion and excluded the contraband. Barring a Commonwealth appeal, the charges against S.M. will be dismissed.
In Re: T.R. - In a juvenile trial in Family Court, Attorney Goldstein obtained an acquittal on Possession with the Intent to Deliver charges for a juvenile who was accused of selling marijuana directly to a police officer. By cross examining the police officers on the fact that they had completely failed to document the Pre-Recorded Buy Money that they claimed to have used as well as all the inconsistencies in their written reports and testimony at trial, Attorney Goldstein showed that the officers could not credibly prove beyond a reasonable doubt that T.R. was the person who had actually sold marijuana to the officer. Therefore, the Family Court judge found T.R. guilty only of misdemeanor possession of marijuana and placed T.R. on what is known as a "deferred adjudication." If a juvenile can complete a short period of probation without getting in trouble again, then a deferred adjudication allows the case to be dismissed and eventually expunged. It will also not count as an adjudication of delinquency for purposes of a criminal record or employment and school applications in the future.
D.V. v. O.V. - Attorney Goldstein defended his client against a Protection from Abuse Petition. In order to obtain a final PFA Order, the Petition must show that the defendant committed abuse against a family or household member. At trial, Attorney Goldstein's effective cross examination convinced the court that the Petitioner's allegations of a physical assault were not credible and in fact the Petitioner had been part of a group that attacked the defendant. Accordingly, the court dismissed the PFA without awarding a Permanent Protection form Abuse order.
Commonwealth v. S.J. - Possession with the Intent to Deliver of crack cocaine charges dismissed at preliminary hearing in Philadelphia Municipal Court.
State v. M.M. - Acquittal obtained in New Jersey Municipal Court Marijuana possession and failure to wear seatbelt citation case. M.M. was a passenger in a car which was pulled over for speeding. When State Troopers approached the vehicle, they immediately noticed a strong odor of marijuana coming from the vehicle and saw that M.M. was not wearing his seatbelt. The driver of the vehicle jumped out of the vehicle and explained that there was marijuana in the vehicle, but he did not know to whom it belonged. Likewise, one of the other passengers gave a false name to Troopers. Attorney Goldstein obtained a full acquittal on both charges by showing that there was no evidence that M.M. knew the marijuana was in the car and that the seatbelt could have been removed after the car was pulled over.
Commonwealth v. D.B. - Possession with the Intent to Deliver and Violation of the Uniform Firearms Act charges dismissed at preliminary hearing in Philadelphia Municipal Court.
Commonwealth v. S.J. - ARD obtained in DUI matter for defendant who had a prior juvenile DUI. ARD will allow S.J. to complete a short period of probation, serve a two month license suspension, and then have the charges expunged without a full conviction or the standard one year driver's license suspension that would come from DUI charges. Had S.J. not obtained ARD and been convicted at trial, he would have been facing a 90 day mandatory minimum jail sentence due to the prior ARD.
Department of State v. D.J. - Professional licensing investigation closed without formal disciplinary charges after Attorney Goldstein obtained a dismissal of the underlying criminal theft charges which triggered the investigation.
In Re: M.A. - Robbery charges against juvenile dismissed prior to trial.
Commonwealth v. J.B. - Attorney Goldstein negotiated for guilty plea to misdemeanor Simple Assault charges and 12 months probation for defendant charged with first degree felony Aggravated Assault for allegations of domestic violence.
Commonwealth v. D.R. - Bail reduced from 10% of $200,000 to $25,000 in Gunpoint Robbery case.
Commonwealth v. S.A. - Bail reduced from 10% of $25,000 to $6,700 in second degree felony Robbery case.