PA Superior Court: Child Porn Convictions Arising Out of Same Case Do Not Trigger Lifetime Megan’s Law Registration

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Leonard. In Leonard, the Court found that the trial court erred when it required the defendant to register as a Tier III, lifetime Megan’s Law offender after the defendant pleaded guilty to multiple counts of distribution of child pornography, possession of child pornography, and criminal use of a communication facility. Because distribution of child pornography, which was the most serious charge in terms of SORNA registration, is only a Tier II offense, the trial court should have required the defendant to register as a Tier II offender for 25 years.

In Leonard, the defendant pleaded guilty to various counts of distributing and possessing child pornography as well as criminal use of a communications facility (“CUCF”). At sentencing, the defense attorney argued that the defendant should be treated as a Tier II sex offender because all of the convictions arose from the same criminal episode and the defendant was convicted of all offenses on the same date. The court ruled that defendant would be sentenced as a Tier III, lifetime offender under the SORNA provision which finds that if the defendant “has two or more convictions of offenses listed as Tier I or Tier II sexual offenses,” the defendant becomes a Tier III offender and must register for life. The court did allow the defendant to preserve the issue for appeal.

The defendant was sentenced and filed a notice of appeal. While the appeal was pending, the Pennsylvania Supreme Court decided the case of A.S. v. Pennsylvania State Police, holding that the previously mentioned language dealing with multiple convictions requires separate convictions. Thus, in A.S. (and the companion case of Commonwealth v. Lutz-Morrison­), the Supreme Court held that a defendant who had been convicted of multiple counts of Tier I possession of child pornography at the same time must only register for fifteen years as a Tier I offender.  

In Leonard, the Superior Court held that the same rule applies for when multiple Tier II and Tier I offenses are combined as part of the same case and are part of an ongoing course of conduct. Therefore, the Court remanded the case for re-sentencing with an order that the trial court require the defendant to register only as a Tier II offender. The Court rejected the prosecution’s argument that the defendant improperly challenged his registration by filing a notice of appeal directly to the Pennsylvania Superior Court. The prosecution argued that the defendant should have challenged his registration classification by filing suit against the Pennsylvania State Police in the Commonwealth Court as the Commonwealth Court has jurisdiction over lawsuits against state agencies. The Superior Court rejected this argument, finding that because the defendant was still in the process of serving his sentence and had filed a timely direct appeal, the Superior Court could review the issue of whether the trial court had imposed a legal sentence. Accordingly, the Superior Court remanded the case so that the trial court could re-sentence the defendant as a Tier II offender.

AWARD-WINNING Philadelphia Criminal Defense Attorneys

Philadelphia Sex Crimes Defense Lawyers

If you are facing criminal charges or believe you may have been improperly required to register under Megan’s Law, we can help. We offer a free criminal defense strategy session to any potential client who is under investigation or facing active criminal charges. We also offer a $100 Megan's Law consultation if you believe that you may be improperly classified under SORNA. Call 267-225-2545 to speak with one of our award-winning Philadelphia Criminal Defense Lawyers.

PA Superior Court Rejects Good Faith Exception to Exclusionary Rule in Birchfield Cases

Commonwealth v. Carper

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carper. In Carper, the Court held that prosecutors may not introduce illegally obtained blood test results in Driving Under the Influence (“DUI”) cases despite the fact that the police relied on then-settled law which permitted warrantless blood testing of DUI suspects. The Superior Court specifically rejected the application of the “good faith exception” and held that the evidence remains inadmissible despite the fact that the police officers may have acted in good faith and not realized that they were violating the law. 

Carper involved a relatively straight-forward DUI case. A Pennsylvania State Police Trooper pulled Carper over in October 2014 for an expired inspection sticker. During the ensuing stop, the Trooper began to suspect Carper of driving under the influence of a controlled substance. The Trooper arrested Carper, transported him to the hospital, and informed him that if he did not consent to a blood draw, he would face increased criminal penalties. Carper agreed to the blood draw, and the blood draw showed the presence of a controlled substance.

Motion to Suppress

Carper moved to suppress the evidence under the Fourth Amendment of the United States Constitution. Notably, Carper did not move to suppress the blood results under the Pennsylvania Constitution. The trial court held a suppression hearing, and the Commonwealth introduced evidence in an attempt to show that it complied with both the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Following the hearing, the United States Supreme Court decided Birchfield v. North Dakota, and then Carper filed a post-suppression hearing brief in which he also argued that the blood results should be suppressed under the Pennsylvania Constitution. Likewise, the Commonwealth filed a brief in which it argued that the Pennsylvania Constitution did not bar the introduction of the blood results into evidence. 

Birchfield v. North Dakota made it illegal for states to impose criminal penalties on DUI suspects who refuse a warrantless blood draw. Thus, the trial court granted the Motion to suppress, agreeing with the defense that the police illegally coerced the defendant into consenting to the blood draw by informing the defendant that he would face more severe criminal penalties if he refused chemical testing. 

The Good Faith Exception to the Exclusionary Rule

The Commonwealth appealed. In its appeal, the Commonwealth argued for the application of the good faith exception to the Exclusionary Rule. In the federal system, prosecutors may still use unlawfully seized evidence if police acted in good faith when they obtained the evidence. For example, courts have found that officers acted in good faith where they arrested a defendant on what they believed to be a valid warrant despite the fact that the warrant had actually been lifted. Likewise, federal courts have held that police act in good faith when they rely on existing case law when conducting a search even if later case law subsequently changes the legality of the search. Thus, the Commonwealth asked the Superior Court to find that the good faith exception applies in Birchfield cases because police relied on well-established case law. The Commonwealth also argued that the defendant failed to properly preserve his state law challenge to the blood draw because defense counsel moved to suppress the evidence only under the United States Constitution prior to the hearing and never mentioned the state law claim until the defense filed its post-hearing brief.     

The Superior Court rejected both of the Commonwealth’s arguments. First, the Court recognized that Pennsylvania appellate courts have repeatedly found that there is no good faith exception to the exclusionary rule in Pennsylvania. Thus, while the good faith exception may apply in federal court, it does not apply in Pennsylvania state courts. The only issue is whether officers violated the law; it does not save the Commonwealth’s case that the officers relied on the law at the time. Second, the Court rejected the Commonwealth’s argument that Carper waived the state law claims by failing to mention them in the initial motion. This would have led to the motion being denied because under the federal law claims, the good faith exception would have applied. Nonetheless, the Court rejected this argument as well, finding that the Commonwealth had not been prejudiced because the Commonwealth extensively briefed the state law issues and presented testimony relating to the issue of coercion at the suppression hearing. Further, the defense preserved the issue by filing the post-hearing brief and allowing the trial court to rule on it. Therefore, the Court rejected both of the Commonwealth’s appellate issues.  

Following Carper, it is clear that the good faith exception does not apply in Birchfield DUI cases. States may not penalize DUI suspects for refusing to submit to blood testing without a search warrant. Although prosecutors continuously ask the appellate courts to adopt a good faith exception in Pennsylvania, the courts have fortunately refused to do so thus far.  

Award-Winning Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

If you are facing DUI charges or fighting any other criminal case, we can help. Our award-winning criminal defense attorneys have successfully represented thousands of clients in all types of criminal cases. Don't just assume you have to plead guilty and are going to lose your license. Call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our Philadelphia DUI Defense Attorneys and Criminal Lawyers.

United States Supreme Court To Review Whether Police Need Warrant To Obtain Cell Phone Location Data

Potentially recognizing that the frame work for when police and federal agents are required to seek a search warrant to obtain digital information has become outdated, the United States Supreme Court announced that it will review whether the police are required to get a search warrant in order to obtain a suspect’s cell phone records. Local and federal law enforcement routinely seek cell phone location data from a suspect’s telephone company in order to track the suspect’s whereabouts around the time of the crime. The location data can be extremely powerful as circumstantial evidence in cases where the cell phone data puts the suspect at or near the scene of the crime at the time of its commission. For example, if police believe that the suspect committed a homicide, they could use cell phone location data to show that the suspect was near the decedent at the time of the murder.

Current Standards for Obtaining Cell Phone Location Data

Under existing state and federal law, police officers are generally not required to obtain a search warrant in order to retrieve this information from a phone company. Instead, in many jurisdictions, law enforcement officers simply submit a request to the phone company, and the phone company will provide the information without a warrant and court order. In other jurisdictions, officers may be required to obtain a court order in order to retrieve the data, but the court orders may be issued on a standard of evidence lower than the probable cause standard required in order to obtain an actual search warrant. This is the case in federal court, where prosecutors must show only that there are “reasonable grounds” for the records and that they are “relevant and material” to an investigation.

Courts have traditionally allowed police to dispense with the warrant requirement in obtaining this type of data because the data is not stored in the suspect’s phone or on the suspect’s person. Instead, the defendant necessarily shared the data with a third-party, the phone company, by using the phone. Thus, courts have held that defendants do not have a reasonable expectation of privacy in information that they have publicly shared or shared with third parties, and courts have not needed to obtain search warrants in order to obtain that type of information.

Reasonable Expectation of Privacy in Cell Phone Data

As a general rule, defendants may move to suppress the results of a search only where they had a reasonable expectation of privacy in the place searched. Obviously, you have a reasonable expectation of privacy in your home, car, and pockets, but courts have rejected the idea that a criminal defendant has a reasonable expectation of privacy in something that he or she has shared with a third party. This rule may have made sense twenty years ago before the advent of technology which literally tracks a person’s every movement. Devices like cell phones, sports watches, and GPS systems all track a person’s whereabouts at all times, making it much more difficult for the government to argue that a suspect should not have a privacy interest in the resulting data. If the government is not required to obtain a search warrant, then the government can essentially obtain all of the details of a person’s life without even having probable cause.

After recently determining that police must have a search warrant in order to search the contents of an arrestee’s search warrant, this case suggests that the High Court may be prepared to re-think the reasonable expectation of privacy doctrine given the realities of modern technology. The case on appeal is Carpenter v. United States. In Carpenter, without getting a search warrant which would have required probable cause, FBI agents obtained cell phone records for the defendant from his phone company which covered 127 days and revealed 12,898 separate points of location data. The data ultimately connected Carpenter to a string of cell phone store robberies, and Carpenter was convicted at trial. On appeal, the Sixth Circuit Court of Appeals ruled 2-1 that the Fourth Amendment does not require law enforcement to obtain a search warrant prior to seeking this type of data. Carpenter has appealed to the United States Supreme Court, and the Court will review whether the police should be required to obtain a search warrant in order to get this highly personal data. Search warrants are not particularly difficult for the government to obtain, and a decision in favor of Carpenter would limit the government’s ability to track your every movement without at least some showing of probable cause.

Award-Winning Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Lawyers Demetra Mehta and Zak T. Goldstein

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients against a wide variety of criminal charges in preliminary hearings and at trial. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with one of our award-winning defense attorneys.

Read the Sixth Circuit’s Opinion: https://scholar.google.com/scholar_case?case=14626167511079628834

Fleeing or Eluding Statute Does Not Require Police Pursuit

Fleeing or Eluding a Police Officer

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Wise, holding that the fleeing or eluding statute does not require evidence that the police pursued the defendant's vehicle in order for prosecutors to obtain a conviction. 

What is Fleeing or Eluding? 

Pennsylvania’s Motor Vehicle Code makes it a crime to fail to stop your car or truck when ordered to do so by a police officer. 75 Pa.C.S. Sec. 3733 defines fleeing and eluding as follows:

(a) Offense defined.--Any driver of a motor vehicle who

willfully fails or refuses to bring his vehicle to a stop, or who

otherwise flees or attempts to elude a pursuing police officer,

when given a visual and audible signal to bring the vehicle to a

stop, commits an offense as graded in subsection (a.2).

* * *

(b) Signal by police officer.--The signal given by the police may be by hand, voice, emergency lights or siren.

Commonwealth v. Wise

Until recently, there was some dispute as to whether the fleeing or eluding statute required some evidence of pursuit by the police. In Commonwealth v. Wise, the Superior Court rejected the defendant's argument that she could not be convicted of fleeing or eluding without some evidence that the police attempted to pursue her.

In Wise, the defendant was convicted of Fleeing or Attempting to Elude a Police Officer (75 Pa.C.S. Sec. 3733). At trial, the Commonwealth presented only the testimony of the arresting officer. The officer testified that she was interviewing witnesses to a minor car accident in York County. While interviewing witnesses, she observed a green Mustang convertible with the top down approach the intersection. As the vehicle approached the intersection, the officer made contact with the defendant, who was driving the vehicle. The officer recognized her from previous interactions and knew that she did not have a valid driver’s license.

After recognizing the defendant, the officer approached the Mustang and asked the defendant some questions. The officer then asked her to pull over. The officer was in full uniform, including a vest, belt, badge, and patches on the arms. The officer pointed to where the defendant should pull over. Instead of pulling over as ordered, the defendant drove away at a high rate of speed. Notably, the officer did not pursue the defendant because she was still responding to the auto accident. She did, however, notify dispatch that the motor vehicle had fled the scene at a high rate of speed, and the defendant was later charged with fleeing or attempting to elude a police officer.

The jury convicted the defendant of fleeing or attempting to elude a police officer, and she was sentenced to two years of probation, costs and fines, and 100 hours of community service. The defendant appealed, arguing that the trial court improperly failed to instruct the jury that the jury must find that she was pursued by the police in order to convict her. Instead, the trial court instructed the jury that it could convict the defendant of fleeing and eluding if it found beyond a reasonable doubt that she

1. was the driver of a motor vehicle,

2. was given a visual and audible signal by the police officer to stop,

3. that she failed or refused to bring the vehicle to a stop or fled, and

4. that she did so willfully, meaning she was aware of the officer’s signal to stop and refused to do so.

On appeal, Wise argued that trial court should have required the jury to also find that she had attempted to elude a pursuing police officer. She argued that the absence of a comma after the phrase “or who otherwise flees” (“Oxford comma”), compels that the statute requires “‘a pursuing police officer,’ regardless of whether a motorist ‘flees’ or ‘attempts to elude’ the police.” Therefore, because the officer never pursued her, the jury was arguably misinformed as to an element of the statute.

Both the trial court and the Superior Court rejected the argument. The Superior Court found that the punctuation or lack thereof did not change the requirements of the statute. Instead, a violation of the statute can be proven in three ways. In order to show that someone commits the offense, the Commonwealth must prove only that a driver, when given a visual and audible signal to stop, 

1. willfully fails or refuses to stop, or

2. otherwise flees

3. or attempts to elude a pursuing police officer.

Therefore, the trial court had properly instructed the jury, and the Sueprior Court affirmed the conviction.

Award-Winning Philadelphia Criminal Defense Attorneys

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free criminal defense strategy session to anyone who is under investigation or has been charged with a crime. Call 267-225-2545 for a complimentary strategy session with one of our award-winning defense attorneys. 

Read the Opinion: Commonwealth v. Wise