Lineup Motions in Philadelphia

In many cases involving charges like Robbery, Aggravated Assault, and Burglary, an eyewitness’s ability to make an identification is the key issue in the case. Numerous studies have shown that eyewitness identification testimony, which is often accepted without hesitation by judges and juries as the best kind of evidence, is actually tremendously unreliable and the number one cause of false convictions. In the overwhelming majority of DNA-based exonerations, the defendant was convicted on the basis of a misidentification by an eyewitness or complaining witness who claimed to be absolutely certain that the defendant committed the crime.

Fortunately, courts have increasingly begun to recognize that eyewitness identifications are often mistaken. In most cases, the eyewitnesses truly believe that the defendant committed the crime, but they have made a terrible mistake. This can happen for any number of reasons, including human fallibility and problems with memory as well as undue police influence even where the police mean well. For this reason, the Philadelphia Police Department and other law enforcement agencies have begun to improve their identification procedures. For example, most Philadelphia Detectives now take steps to tell the complainant or eyewitness that the suspect may not be in a photo array, they show photos one at a time so the photo can be compared to memory instead of other photos on the page, and the photo array is conducted by a detective who does not know who the suspect is and therefore cannot subconsciously influence the witness’s identification.

What is a motion for a lineup?

Zak T. Goldstein, Esq. - Philadelphia Criminal Lawyer

 In addition to these new procedures, there is a critical motion which can be made by the defense at the preliminary hearing in Philadelphia felony cases. Prior to the preliminary hearing in a case in which there will be some kind of eyewitness identification, the defense attorney may make a motion for a lineup. If the motion is granted, the complainant or eyewitness will be required to attend a lineup at the Curran-Fromhold Correctional Facility and attempt to make an identification of the defendant prior to the preliminary hearing. These pre-trial lineups can be extremely important. If the complainant is unable to make an identification or identifies the wrong person, then the misidentification or failure to ID could have a dramatic impact on the case.

Winning a lineup motion in Philadelphia

Bringing a lineup motion does not require filing anything in writing in the Municipal Court because all motions are made orally. Instead, the defense attorney must inform the judge that the attorney has a motion for a lineup when the case is first called in the morning. If the prosecution agrees that a lineup is appropriate, then the judge will order a lineup and continue the preliminary hearing so that the lineup may occur. This is rare as the prosecution almost always opposes the lineup request due to the delay it causes in the case and the fact that a misidentification could be fatal to the case.

Therefore, once the defense makes the lineup motion, the prosecution will typically provide the Municipal Court judge with a summary of the evidence against the defendant and provide reasons for why the lineup request should be denied. The defense lawyer will then be given the opportunity to respond and argue that a lineup is necessary to protect the defendant (and Commonwealth) from a false identification. In some cases, the judge may want to question the witness about the circumstances of the identification and may allow the attorneys for each side to do so, as well.

The case of Commonwealth v. Sexton suggests some of the main factors that a court should consider in ruling on a lineup request and the remedy for when a lineup request is improperly denied. These factors include:

• Do the witness and defendant know each other? Have they seen each other before such that the witness knows what the defendant looks like? This question includes whether some type of identification has already occurred. If the police conducted a “show up” immediately after the incident where the witness was shown and identified the defendant, then the lineup may not be as helpful because the witness already knows what the defendant looks like and believes the defendant committed the crime. Likewise, if the defendant and witness know each other, the lineup will not be particularly useful.
  

• The witness’s opportunity to observe during the incident. This includes factors such as the length of the incident, whether the case involves a cross-racial identification, whether a weapon was involved, how close to each other the witness and suspect were, whether a weapon like a gun was involved, and whether the suspect had anything obscuring his or her face.
  

• Is there other strong evidence against the defendant? For example, if the witness would make a somewhat questionable identification but the defendant is also clearly on video committing a Robbery or Aggravated Assault, then the judge is likely going to find that the delay caused by ordering a lineup is not worth it.

In order to win a lineup motion in Philadelphia, the defense attorney must be able to make a strong argument that based on these factors, the likelihood of a misidentification makes the delay caused by the lineup worth it. For example, Attorney Goldstein recently won a lineup motion in the case of Commonwealth v. R.R. by arguing that a lineup was necessary because the alleged robbery took place in the dark at 2 am, lasted for less than a minute or two, the witnesses and defendants did not know each other, the case involved a cross-racial identification, and a gun was used. Further, there was very little corroborating evidence against the defendants other than the identification. Therefore, the Court granted the lineup motion.

What Is A Lineup?

Once ordered by the Court, the lineup will take place at 5 pm on a weekday at the Curran-Fromhold Correctional Facility on State Road. The defense will be allowed to pick five “fillers” for a lineup of six people, including the defendant. The fillers will typically be inmates at the prison, and the defense attorney must be careful to help the defendant pick fillers who look similar to the defendant. The witness will then be shown the lineup through one-way glass and asked if they identify anyone. The witness’s response will be documented by both the defense attorney, the assigned prosecutor, and a Philadelphia Police Detective.

Will the case get dismissed if the witness fails to pick me out at a lineup?

The prosecution is not required to withdraw the case just because the witness fails to identify the defendant at a lineup. In some cases, they will do so, but in others, they will not. It depends on the strength of the initial identification and whether the prosecution has other evidence. For example, if one witness fails to identify the defendant, but another witness will be able to identify the defendant or the defendant was caught in possession of the proceeds of the burglary, then the prosecution may be able to proceed to trial even without the identification from the witness who failed to pick out the defendant. In other cases, the prosecution will still argue that the initial identification in which the witness picked the defendant out at a show up or out of a photo array was more accurate than the lineup. Each case is different, and whether the prosecution chooses to proceed despite the failure to identify at the lineup will vary depending on all of the circumstances of the case.

Can anything be done if the judge improperly denies the lineup motion or the prosecutor gives incorrect information during argument on the motion for a lineup?  

There is a remedy in cases where a lineup should have been ordered but was not, but it is typically not going to be dismissal of the case or suppression of the identification. In cases where the prosecutor in fact made knowingly false representations, it may be possible to successfully move for dismissal of the case or exclusion of the identification. However, in the more common case in which the prosecutor made a mistake or the evidence turned out to be different than expected, the Supreme Court has suggested that the jury should receive a jury instruction. The jury instruction in this type of case directs the jury to consider the identification of the defendant with caution and may inform the jury of some of the potential problems with eyewitness identifications. Most jurors do their best to follow the judge’s jury instructions carefully. This means that jury instructions are extremely important. In a close case, a jury instruction directing the jury to view the identification with caution could be the difference between a conviction and an acquittal.  

Award-Winning Philadelphia Criminal Defense Lawyers for Lineup Motions

Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

Lineup motions are most common in Robbery, Burglary, and Assault cases. Our award-winning Philadelphia criminal defense attorneys have successfully represented hundreds, if not thousands, of clients in these serious cases. We have won dozens of lineup motions and taken countless cases to trial before judges and juries throughout Pennsylvania. We offer a free 15-minute criminal defense strategy session to any potential client who is facing criminal charges or may be under investigation. Call 267-225-2545 to speak with one of our experienced, understanding defense attorneys.  

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PA Superior Court: Summary Traffic Offenses May Be Charged Separately From Serious Offenses in Philadelphia

For many years, it was the routine practice of the Philadelphia Police Department to charge summary traffic offenses and more serious charges like DUI or possessory offenses separately. For example, if police pulled a car over for speeding and ultimately found a gun in the car or ended up charging the driver with DUI, then the Commonwealth would bring the summary speeding charge in Philadelphia Traffic Court and the more serious gun charge or DUI charge in either the Municipal Court or the Court of Common Pleas. Thus, a defendant who wished to challenge the traffic citation would be required to attend twice as many court dates and hire a defense attorney twice.

This practice arguably violates Pennsylvania's compulsory joinder statute. Pennsylvania has a compulsory joinder statute which is codified at 18 Pa C.S. § 110. At its most basic level, a compulsory joinder statute requires the prosecution to bring charges which arise out of the same incident together in a single prosecution. This spares the defendant the additional time, expense, and stress of defending against two separate cases, and in this sense, compulsory joinder is very similar and related to the idea of Double Jeopardy – that a defendant may not be prosecuted for the same crime twice. Pennsylvania appellate courts had repeatedly ruled that under a prior version of Section 110 (the joinder statute), summary offenses were just different and did not count because the Court of Common Pleas held jurisdiction over misdemeanors and felonies and the Magisterial District Courts had jurisdiction over summaries. Therefore, the prosecution and police could bring summary traffic prosecutions in traffic court and misdemeanor and felony prosecutions in the Municipal Court and Court of Common Pleas.

In 2002, the Pennsylvania Legislature amended the statute to change language requiring compulsory joinder where the offenses occurred within courts of the same jurisdiction to offenses which occurred within the same judicial district. This language arguably has a dramatic impact. Instead of summaries being different due to the differing jurisdictions of the courts, the question became whether the offense occurred in the same judicial district. This issue became even more important approximately ten years later when the Philadelphia Traffic Court became enmeshed in scandal and was abolished. After the court was abolished, its functions were merged into the Philadelphia Municipal Court – Traffic Division. Thus, any argument that summary offenses were not within the same judicial district or that the Municipal Court did not have jurisdiction became extremely weak, and defense lawyers began to successfully move for cases to be dismissed due to the fact that summary traffic cases arising out of the same stop had already been resolved.

In the vast majority of cases, the traffic ticket would be resolved much faster than the criminal case. The traffic court hearings were scheduled more quickly, and if a defendant failed to appear for court, the defendant would be found guilty in absentia. Further, many defendants pay their traffic tickets online, by phone, or through the mail rather than going to court to fight them. This meant that a traffic court case could be disposed of within a month or two, and the defense could then move to dismiss the criminal case as violating the compulsory joinder rule. Once prosecutions realized they had a potential problem, Philadelphia Police quickly changed their procedures and stopped issuing traffic tickets in cases where they also intended to charge the defendant with a more serious crime. However, many existing cases were successfully dismissed because the traffic tickets had already been resolved.

Although this issue is not as prevalent today because a large number of the cases in which this happened have already been resolved, the Superior Court has just held that the unique rules establishing the Philadelphia Municipal Court – Traffic Division trump the compulsory joinder rule and allow the traffic citations to be issued separately from the criminal charges.   

On August 30, 2017, the Pennsylvania Superior Court issued its decision in Commonwealth v. Perfetto. The Superior Court overturned the trial court’s decision granting Mr. Perfetto’s Motion to Dismiss. Although this decision is limited to Philadelphia, it could potentially affect a large number of defendants who are charged with Driving Under The Influence (“DUI.”)

Commonwealth v. Perfetto

In July 2014, Mr. Perfetto was arrested in Philadelphia and charged with three counts of “DUI.” Mr. Perfetto was also charged with the summary offense of driving without lights as required, a traffic citation. Although traffic citations are not considered very serious, they are still summary offenses, and all summary offenses are crimes under Pennsylvania law. In September 2014, Mr. Perfetto was found guilty of the traffic citation by the Philadelphia Municipal Court – Traffic Division. In June 2015, Mr. Perfetto filed a motion to dismiss in his DUI case, arguing that § 110 barred the prosecution. The trial court agreed with Mr. Perfetto and dismissed the DUI case. The court granted the motion because Mr. Perfetto’s case satisfied the four requirements of § 110. Shortly thereafter, the Commonwealth filed an appeal, arguing that Mr. Perfetto’s subsequent DUI prosecution was not barred by § 110. 

What is Double Jeopardy and § 110?

Double Jeopardy is mentioned in both the United States Constitution (5th Amendment) and the Pennsylvania Constitution (Article 1, Section 10). Double Jeopardy is the rule that the same government cannot put you on trial for the same charges twice. For example, let’s say a defendant is accused of punching a complainant in the face and is charged with Simple Assault and Recklessly Endangering Another Person (REAP). If the defendant was acquitted of these charges, the same government could not put that defendant on trial again for those charges because Double Jeopardy would forbid it. This rule does not always apply against other levels of government. For example, a federal prosecution will prevent the Commonwealth of Pennsylvania from bringing a subsequent prosecution, but a Pennsylvania prosecution will not prevent the United States from bringing a federal prosecution.     

The idea of compulsory joinder is similar and arises out of many of the same concerns of Double Jeopardy. As previously explained, Section 110 provides Pennsylvania’s compulsory joinder rule. § 110 is similar to the Double Jeopardy clauses of the Pennsylvania and U.S. Constitutions, but more nuanced. § 110 is the codification of the rule announced in the Pennsylvania Supreme Court decision of Commonwealth v. Campana, 304 A.2d 432 Pa. 1973). In Campana, the Court held that ‘the Double Jeopardy Clause requires a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a single criminal episode.” Id. at 374. This is known as compulsory joinder. Using the same example above, let’s say that in addition to punching the complaining witness, the defendant also told said this person that he was going to kill him (arguably a Terroristic Threat), however the government only charged him with Simple Assault and REAP. Assuming this defendant is acquitted again, the defendant could not subsequently be tried for the crime of Terroristic Threats. The reason is because the “terroristic threat” came from the same criminal episode as the assault. Again, this would only prevent Pennsylvania from bringing a second prosecution; the federal government may still be able to bring federal charges.  

In order to be successful when bringing a § 110 motion to dismiss, the defense must show four things: 1) the former prosecution resulted in an acquittal or conviction; 2) the current prosecution was based on the same criminal conduct or arose from the same criminal episode; 3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and 4) all the charges are within the same judicial district as the former prosecution. The key issue in Mr. Perfetto’s case was the fourth prong of this analysis because it was the fourth prong that changed in the 2002 amendment to the compulsory joinder rule.

The Pennsylvania Superior Court Holds that Philadelphia’s Traffic Division of Municipal Court is a Separate Judicial District

In overturning the trial court’s decision, the Pennsylvania Superior Court made a very technical finding. First, the Court looked to 42 Pa C.S.A. § 1302, a statute which addresses traffic courts. In analyzing the statute, the Court held that when a traffic offense is resolved in a jurisdiction with a traffic court, there is no violation of § 110 if the more serious criminal charges are filed separately. In other words, if a jurisdiction does not have a traffic court, then § 110 would apply if a defendant resolved the traffic offense prior to their criminal offense, but the same is not true when the jurisdiction has a traffic court.

Unfortunately, Philadelphia is different than other jurisdictions in Pennsylvania because its traffic court is specifically mentioned in § 1302. In 2013, Philadelphia’s traffic court merged with Philadelphia’s Municipal Court. This created two divisions: the General Division and the Traffic Division. Therefore, the Municipal Court has jurisdiction over both traffic and criminal offenses. Thus, prior to Perfetto, defense attorneys would argue that because Philadelphia does not have a separate traffic court, §110 applied for traffic offenses.

The Superior Court has now rejected this argument at least as it applies to Philadelphia courts. The Superior Court noted that the Pennsylvania Supreme Court has the power to create rules for the general practice and procedure of the Courts. With this in mind, the Superior Court focused on a May 2014 comment to Pennsylvania Rule of Criminal Procedure 1001(D) which addresses Philadelphia Municipal Court.  The comment stated:

This rule, which defines “Municipal Court case,” is intended to ensure that the Municipal Court will take dispositive action, including trial and verdict when appropriate, in any criminal case that does not involve a felony, excluding summary cases under the Vehicle Code. The latter are under the jurisdiction of the Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court.

Pa.R.Crim.P. 1001(D), cmt.

As such, the Superior Court held that the Supreme Court’s intent was for the traffic division of the Municipal Court to exclusively hear the traffic offenses. Thus, the Superior Court held that, in essence, Philadelphia’s Municipal Court traffic division is analogous to a jurisdiction with its own separate traffic court. Consequently, the Superior Court held that § 110 does not bar subsequent prosecution of a criminal offense when there has been a prior disposition of a traffic offense in Philadelphia. The Superior Court reversed the ruling of the trial court, and Mr. Perfetto’s case was remanded back to the Philadelphia Municipal Court for trial.

DUI Cases     

At this point, the impact of Perfetto is relatively limited. For a number of years, unpublished opinions of the Pennsylvania Superior Court reached the opposite conclusion, so a large number of cases have already been dismissed and cannot be reinstated. For those cases which were on appeal and awaiting the decision in Perfetto, the defendants will now face prosecution once again. However, the Philadelphia Police Department stopped issuing separate traffic citations a number of years ago due to this rule, so the decision is not likely to substantially affect newly charged defendants. Certainly, Perfetto will likely be appealed to the Pennsylvania Supreme Court, and the issue may not be resolved. 

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

As always, DUI cases can be very technical and there are a number of ways to beat them.  If you are charged with DUI, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.  

DUI Update: PA's New Ignition Interlock Law Takes Effect

Pennsylvania’s new Driving Under the Influence (“DUI”) Ignition Interlock Law took effect on Friday, August 25, 2017. We have written about the pros and cons of the new law previously, but prior to taking effect, the Pennsylvania Legislature modified the law so that it would bring many of the same advantages and disadvantages to recipients of the Accelerated Rehabilitative Disposition (“ARD”) Program. Unfortunately, the changes to make ARD defendants eligible for the Ignition Interlock License will not go into effect until October 2018. Additionally, most defense lawyers believed that the law would be applied retroactively to motorists who were already serving their suspensions when the law took effect. Based on recent guidance from PennDOT, it now seems clear that the DUI Ignition Interlock Statute will apply retroactively. This means that many motorists who are already serving DUI-related suspensions will be immediately eligible to obtain an Ignition Interlock device and have their driver’s licenses reinstated.

Pros and Cons of the New DUI Ignition Interlock Law

There are some significant pros and cons to the new law. In general, the law makes Driving Under the Influence Convictions more expensive by requiring even some first-time offenders to install ignition interlock devices on their vehicles. These devices can be costly, but the law does allow for subsidized interlock installations upon a showing of financial hardship. At the same time, the law provides many motorists with a way to keep their licenses or serve shorter driver’s license suspensions than those statutorily required in the absence of the law.

One of the biggest problems with Pennsylvania’s DUI statute is that it requires a one year driver’s license suspension for many first-time offenders, and Pennsylvania does not really offer the kinds of work licenses offered in other states. This means that a DUI would ordinarily cause many people to lose their jobs if they drive for a living or need to drive to and from work. This is a problem even for criminal defendants who are accepted into the ARD program as even ARD requires a sixty day driver’s license suspension for a motorist who blew above a .16 or had drugs in their system. The law solves some of these problems by allowing many drivers to keep their licenses while at these are time protecting the public from drunk drivers by requiring them to obtain ignition interlock devices. 

Changes to the DUI Statute

Now, even first-time offenders in the highest tier (meaning they had a BAC above .16 or drugs in their system while driving) can obtain a special Ignition Interlock license which will permit them to keep driving during the period of suspension. This will result in many DUI defendants being able to keep their jobs. At the same time, it makes the roads safer by requiring those convicted of DUI to obtain these ignition interlock devices. The devices prevent a car from starting if the device detects the presence of alcohol in the driver’s breath. Notably, the devices have no way of detecting the presence of any kind of drugs. Additionally, the legislature recently amended the statute so that defendants who are diverted into the ARD program will be eligible for ignition interlock licenses. This portion of the statute will not go into effect until October 2018, so ARD currently still requires the license suspension. The law also does not help criminal defendants who have had their driver's licenses suspended due to convictions for drug possession or possession with the intent to deliver.  

We Can Help With DUI Cases and Ignition Interlock Licenses

Goldstein Mehta LLC - Philadelphia Criminal Defense Lawyers

You can learn more about the law and its benefits on PennDOT’s website. If you have questions about your eligibility for an ignition interlock license or the procedure for applying for this type of license, call one of our award-winning Philadelphia criminal defense lawyers at 267-225-2545 for a free consultation. We can also help with DUI and driving with a suspended license charges in Philadelphia and the surrounding counties. 

PA Superior Court Finds Suspicionless Boat Searches Unconstitutional

On August 21, 2017, the Pennsylvania Superior decided the case of Commonwealth v. Karash, holding that the government cannot stop a boat without probable cause or reasonable suspicion. This was a case of first impression in Pennsylvania that will affect the thousands of people who utilize Pennsylvania’s waterways each year.

Commonwealth v. Karash

In Karash, the defendant was charged with not having the required safety equipment on his boat. On May 23, 2016, Mr. Karash was fishing on his boat when he was stopped by a waterways conservation officer. The officer did not see Mr. Karash do anything illegal prior to boarding his boat. Regardless, the officer boarded Mr. Karash’s boat to conduct a license check of those who were fishing. After this check was completed, and the occupants were cleared, the officer then performed a safety inspection. During this inspection, the officer determined that Mr. Karash did not have sufficient flotation devices and issued him a citation.

Mr. Karash contested his citation at a hearing. Mr. Karash litigated a Motion to Suppress where he argued that the officer lacked reasonable suspicion or probable cause to board his vessel in violation of his rights under the Pennsylvania Constitution. The magisterial district court denied his motion because 30 PA C.S. § 901 (a)(10) allows a waterways conservation officer to board a boat to make sure it is in compliance with the administrative aspects of the Fish and Boat Code (i.e. licensing requirements). It is important to note that this particular provision does not require an officer to have reasonable suspicion or probable cause for a government official to board one’s boat. After the hearing, Mr. Karash was found guilty of not having the required number of life vests and fined $75.

WHAT IS THE DIFFERENCE BETWEEN PROBABLE CAUSE AND REASONABLE SUSPICION?

Typically, a motion to suppress is a motion that asks a court to exclude evidence against a defendant because it was obtained when police acted without “probable cause” or “reasonable suspicion.” Probable cause and reasonable suspicion are similar, but distinct legal concepts.  Probable cause is mentioned in both the United States Constitution (the Fourth Amendment) and the Pennsylvania Constitution (Article I, Section 8). In order for the government to arrest you, there must be probable cause that you committed a crime. The Pennsylvania Supreme Court has defined “probable cause” as “the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 203 (Pa. 2009).

“Reasonable suspicion” is different. Unlike “Probable cause,” reasonable suspicion is not mentioned in either the U.S. or Pennsylvania constitutions. Despite this, courts have allowed police officers and other government officials to stop people on “reasonable suspicion” after the United States Supreme Court’s landmark decision in Terry v. Ohio. To be clear, “reasonable suspicion” is not as rigorous a standard as “probable cause.” Additionally, a person cannot be arrested or have their home searched based on “reasonable suspicion.” However, an individual can be detained for an “investigatory detention” based on “reasonable suspicion.”  The Pennsylvania Supreme Court defines “reasonable suspicion” as “a less stringent standard than probable cause…and depends on the information possessed by the police and its degree of reliability in the totality of the circumstances…a police officer must be able to point to ‘specific and articulable facts’ leading him to suspect that criminality is afoot.” Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2010).   

Typically, the government needs either “reasonable suspicion” or “probable cause” to detain someone. There are exceptions when the government can make a suspicionless stop of you (i.e. point-of-entry searches at public schools for weapons and DUI checkpoints). In determining whether a suspicionless check will be upheld, Pennsylvania courts employ a “balancing test…wherein the intrusion on the individual of a particular law enforcement practice is balanced against the government’s promotion of legitimate interests.” Commonwealth v. Blouse, 611 A.2d  1177, 1167 (Pa. 1992). Thus, the issue for the Karash Court was whether suspicionless checks for boats are constitutional.

As stated above, this was a case of first impression. Thus, the Karash Court looked for guidance from other jurisdictions to see how they ruled on this issue. The United States Supreme Court addressed a similar issue in United States v. Villamonte-Marquez. In its decision, the United States Supreme Court held that the federal government could conduct suspicionless "Customs checks" on vessels with close proximity to the open sea because of the complexity of the documentation required by federal law and the governmental interest in preventing smuggling. Thus, in Villamonte-Marquez, the United States Supreme Court upheld the warrantless and suspicionless search of a ship that resulted in finding thousands of pounds of marijuana.  

Can the Police Search a Boat Without Reasonable Suspicion or Probable Cause? 

Despite the ruling in Villamonte-Marquez, the Pennsylvania Superior Court declined to follow its holding. In Karash, the Pennsylvania Superior Court held, understandably, that ensuring recreational boater safety on Pennsylvania’s waters is a legitimate government interest. Nonetheless, the Karash Court also held that government had not demonstrated that it was unable to achieve its goal of recreational boater safety by a means other than suspicionless searches. 

The Karash Court analogized the Commonwealth’s waterways to its roads. Specifically, the Court focused on DUI Checkpoints. Pennsylvania allows DUI Checkpoints, but there are extremely strict limitations that the appellate have imposed on police departments in setting up these highly intrusive checkpoints. Police do not have “unfettered discretion” and along with other guidelines (i.e. prior notice, momentary stoppage of drivers, checkpoints placed on roads where DUI’s are more likely, etc.), courts have imposed rules to reduce the intrusiveness of the checkpoints so that they may comply with the Pennsylvania Constitution.  Commonwealth v. Tarbert, 535 A.2d 1035, 1037 (PA 1987).

The Karash Court held that the Commonwealth has not employed these same safeguards on its waterways. As such, the Karash Court held that Mr. Karash’s constitutional rights were violated when the waterways conservation officer boarded his boat without probable cause or reasonable suspicion. Thus, Mr. Karash’s conviction was overturned. 

Motions to Suppress

Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys

Trials can be won and lost with a motion to suppress. If you are facing criminal charges, you need an attorney who has the knowledge and expertise to litigate these motions even when the law has yet to be conclusively established. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.