Philadelphia Criminal Defense Blog
US Supreme Court: Police Must Obtain Search Warrant for Cell Phone Location Data
Philadelphia Criminal Defense Lawyer Zak Goldstein
The United States Supreme Court has decided the case of Carpenter v. United States, holding that police must obtain a search warrant based on probable cause prior to getting cell phone location data from a cell phone provider. In Carpenter, law enforcement officers had obtained cell phone location data for the defendant which linked the defendant to various gunpoint robberies without a search warrant. Therefore, the court reversed the defendant’s conviction and remanded the case for a new trial.
The Facts of Carpenter v. United States
In 2011, police arrested four men for robbing a number of Radio Shack and T-Mobile stores in Detroit. One of the men confessed that over the previous four months, the group (along with other individuals) had robbed nine different stories in Michigan and Ohio. The suspect identified 15 other people who had participated in the robberies. He gave the FBI some of their cell phone numbers. The FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.
Based on this information, the FBI began to suspect Timothy Carpenter, the defendant, of participating in some of the robberies. The FBI obtained court orders under the Stored Communications Act to obtain cell phone records for Carpenter and other suspects. That statute permitted the FBI to compel the disclosure of cell phone records from the cell phone provider based on a showing of specific and articulable facts that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. These court orders are not the same as a search warrant, and the showing necessary to obtain one is much lower than the probable cause standard which law enforcement officers must meet when seeking a search warrant.
The FBI agents obtained two orders from federal magistrate judges directing MetroPCS and Sprint to disclose cell site location data for Carpenter’s phones. The first order sought 152 days of cell-site records from MetroPCS, and MetroPCS produced 127 days worth of records. The second order directed Sprint to produce two days of records for when Carpenter’s phone was roaming in Ohio, and Sprint produced the two days worth of records. In total, the FBI obtained 12,898 location points cataloging Carpenter’s movements – an average of 101 data points per day.
The Criminal Charges Against Carpenter
The Government eventually charged Carpenter in federal court with six counts of robbery and six counts of carrying a firearm during a federal crime of violence in violation of 18 U.S.C. Sec. 924(c) and 1951(a). Prior to trial, Carpenter’s defense attorneys filed a motion to suppress the cell phone location data, arguing that the FBI violated the Fourth Amendment when it obtained the location data without a search warrant supported by probable cause. The trial court denied the motion to suppress, and the Court of Appeals affirmed.
Carpenter proceeded to trial, and seven of his co-conspirators testified against him. They indicated that he was the leader of the robbery operation. In addition, an FBI agent offered expert testimony regarding the cell phone data. The agent explained that each time a cell phone taps into a wireless network, the carrier logs a time-stamped record of the cell site and the particular sector that were used. With this information, the FBI agent was able to produce maps that placed Carpenter’s phone near the scene of four of the charged robberies. According to the Government, this data showed that Carpenter was right where the robbery occurred at the exact time of the robbery. The jury found Carpenter guilty of all of the charges except one of the gun charges, and the trial court sentenced him to more than 100 years in prison.
The Court of Appeals affirmed the trial court’s ruling on the motion to suppress. It held that Carpenter lacked a reasonable expectation of privacy in the cell phone location data because the information had been shared with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers in order to use the phone, the court concluded that the business records produced by the carriers are not subject to Fourth Amendment protection on the basis that there is no reasonable expectation of privacy in something that a person has shared with someone else.
The Supreme Court Appeal
Carpenter’s defense lawyers appealed to the United States Supreme Court, and the Supreme Court accepted the case. In what it described as a narrow opinion, the Supreme Court reversed the conviction and ruled that the trial court should have granted the motion to suppress the cell phone location data. The court noted a number of recent opinions in which the Fourth Amendment has been applied to protect not just places, but also other types of information that people would expect to be private. For example, in Kyllo v. United States, the court held that police could not use a thermal imager to detect heat radiating from the side a defendant’s home (as part of searching for a marijuana grow operation) without a search warrant. Likewise, in Riley v. United States, the court found that law enforcement generally must obtain a search warrant prior to searching a suspect’s cell phone and that the search incident to arrest exception to the warrant requirement does not apply to a cell phone. Finally, in United States v. Jones, the Supreme Court held that police must obtain a search warrant prior to secretly planting a GPS tracker underneath a suspect’s car and monitoring the tracker for 28 days.
At the same time, the court noted that the third-party doctrine would normally defeat Carpenter’s claim. The third-party doctrine provides that police are not required to obtain a search warrant in order to obtain information which a person has voluntarily shared with third parties. Thus, police may obtain bank records via subpoena without obtaining a search warrant because a person has voluntarily shared their financial information with the bank. Likewise, police need not obtain a search warrant in order to obtain a list of outgoing phone numbers dialed on a landline telephone because the information provided by such a pen register is limited and the numbers are used by the telephone company for a variety of legitimate business purposes.
After analyzing these various cases, the Supreme Court ultimately concluded that the FBI should have obtained a search warrant for the cell phone data. Although the third-party doctrine has typically applied in cases such as this, where the defendant shared all of the information voluntarily with the cell phone companies, there is something different about a system that creates such a detailed and comprehensive record of the person’s movements. Accordingly, given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. The court therefore held that an individual maintains a legitimate expectation of privacy in the record of his or her physical movements as captured by the cell phone companies.
Although the court reversed the conviction in this case, it did note that the decision is meant to be a narrow one. It does not necessarily apply to real-time cell phone location data or “tower dumps” (a download of information on all of the devices that connected to a particular cell site during a particular interval). It should also not call into question the prior opinions on bank records and pen registers or prevent the use of evidence obtained from security cameras. Finally, it does not consider other collection techniques involving foreign affairs or national security, and there may also be situations in which exigent circumstances eliminate the need for a search warrant.
Facing criminal charges? We can help.
Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.
Video Explanation of Pennsylvania Receiving Stolen Property Charges
Defenses to Aggravated Assault Charges in Pennsylvania
Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, explains the most common types of Aggravated Assault charges and some of the potential defenses to those charges available under Pennsylvania law. If you are under investigation or facing criminal charges in PA or NJ, call 267-225-2545 to speak with an award-winning criminal defense lawyer today.
The following is an automated transcript of the video. Please excuse typos and otherwise errors as it was produced electronically and only lightly edited.
Hi, my name's Zak Goldstein, I'm a criminal defense attorney in Philadelphia with the law firm Goldstein Mehta LLC. We handle a lot of aggravated assault cases. And so that's the topic that I'm going to talk about today, which is aggravated assault. Now in general, Aggravated Assault is always a felony in Pennsylvania in state court, and there are three main types of aggravated assault that a criminal defendant could find themselves dealing with in Philadelphia and in counties throughout Pennsylvania. The first type is the most serious. It's a felony of the first degree, and when aggravated assault is charged as a felony of the first degree, then it typically involves serious bodily injury, meaning the defendant caused knowingly, intentionally, or recklessly caused or attempted to cause serious bodily injury to another person. Typically, that's going to involve either someone, someone really being injured, or it's going to involve a weapon.
So if you shoot somebody, if you stab somebody, multiple times, you know, you punch someone 100 times and bones are broken, that's usually going to be aggravated assault as a felony of the first degree. Now, the second type is aggravated assault involving law enforcement or other protected classes. It could be a correctional officer, police officer, a judge, public defender, district attorney, a Septa employee or a healthcare worker or doctor, all members of protected classes for the felony of the second degree, aggravated assault statute. In that case, it no longer has to be serious bodily injury. If you try to cause bodily injury or knowingly or intentionally, and it can't be reckless, meaning it can't be an accident, you can't just be flailing around. It's got to really be an attempt to, or something you meant to do. If you caused bodily injury or attempted to cause bodily injury to someone who's set out in the statute, like a police officer, then that is always a felony of the second degree. This is true even if that person just has some minor bruises or redness or swelling, it doesn't have to be a serious bodily injury.
And then the third type of aggravated assault is also a felony of the second degree. That's bodily injury with a deadly weapon. Meaning say you stab somebody in the arm and they're totally fine. They make a full recovery, they get a stitch or two, you know, it's not a major permanent injury, then that might just be bodily injury with a deadly weapon because the knife used for the stabbing a is a deadly weapon, but it's not serious bodily injury or business, not something that's going to permanently effect their lives. There was no risk that they were going to die. It's aggravated assault as a felony of the same with the grade. Now, for each of these charges, there are defenses.
You're charged in state court in Pennsylvania. You have the absolute right to a trial with a judge or the jury. In most cases you're also gonna have a preliminary hearing. And so with some of these aggravated assault charges, there are defenses even at the preliminary hearing level with the sufficiency of the evidence, particularly with aggravated assault as a felony of the first degree. Many times the winner of a flight gets charged with aggravated assault. The complainant will say, oh, I got punched, you know, five times, 10 times. I got punched a bunch of times in the head and the prosecution will try to argue that that's aggravated assault as a felony of the first degree. So in terms of the sufficiency defense, there's probably going to be a defense. Well, serious bodily injury was not caused. This person was not really injured and just punching or throwing some kicks is part of a fight, well, that's not an attempt to cause serious bodily injury, so the charge should be thrown out and should just be a simple assault even at a preliminary hearing where there's a relatively lower standard than at a trial.
In terms of sufficiency for the other statutes, there can be challenges to what the defendant actually intended to do. With the law enforcement, aggravated assault - It can't just be resisting arrest, it can't be flailing around trying not to be taken into custody. Even if a police officer ends up with some bruising, that has to be the defendant's goal and had to either be intentional or knowing. It can't just be something that happened because of reckless conduct. So that could be a defense to the aggravated assault as a felony of the second degree charge, and then there's also sufficiently defenses for the bodily injury with a deadly weapon type of aggravated assault, which can be challenging whether or not it was really a deadly weapon. You see a lot of felony two aggravated assaults where the prosecution and the police, they're never really quite sure what kind of weapon was involved.
Maybe it was a screwdriver, maybe the defendant was wearing a ring that led to a large cut. A deadly weapon has a very specific definition, which means it's either a firearm, whether loaded or unloaded. It's something that is a weapon like a knife. Otherwise, when it's some sort of random object, if it's a pen, a screwdriver, a plate, something that the defendant just grabbed, then it has to be used in a manner which was calculated to or likely to produce serious, uh, to produce death or serious bodily injury. So if an object is grabbed in the course of the fight, it is not automatically a deadly weapon. There has to be something about the object that makes it particularly deadly like a knife or a gun, or it has to be the way in which it was used. Sufficiency is often a potential defense in these types of cases, but there are also the other types of defenses that come in with, with any criminal case.
Aggravated Assault can be a charge for a shooting, in which case the defenses could be misidentification. That comes down to the credibility of the witnesses. Did the witnesses really point out the right person? There can be credibility defenses - are the witnesses telling the truth about what they saw or the truth about their injuries. Are they telling the truth that the defendant really tried to do this? And then there are other defenses that are, that are really case specific. That would be speedy trial defenses. The defendant is brought to trial fast enough. They're going to be motions to suppress evidence if the defendant is stopped by the police or questioned illegally without Miranda rights or questioned as part of an illegal stop. These are all potential defenses to aggravated assault charges and potential defenses in any case, because there's always the right to a jury, there's the right to a trial with a judge if you choose to go that route.
And then there are also the constitutional defenses such as the right to a speedy trial, the right to be free from unreasonable search and seizure, and the right to Miranda warnings. Now, we have handled countless aggravated assault cases, countless attempted murder cases, both as trials with judges and with juries. We have won full acquittals in aggravated assault and attempted murder cases. And if you were dealing with any type of assault charge or any type of criminal charge, we can help. Our criminal defense attorneys offer a free 15 minute criminal defense strategy session to each potential client. So, call us at 267-225-2545 discuss your case today.
PA Superior Court: Back Seat Passenger Not Automatically in Possession of Drugs and Guns in the Front of Car
Philadelphia Criminal Defense Attorney Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Parrish, reversing the defendant’s conviction for Possession with the Intent to Deliver (“PWID”), Conspiracy, Possession of a Controlled Substance, Paraphernalia, and gun charges such as Violation of the Uniform Firearms Act Section 6106. In Parrish, the Superior Court found that the evidence was insufficient to convict Parrish of the gun and drug charges because Parrish was merely the back seat passenger in a car which had guns and drugs in the front of the car.
The Facts of Commonwealth v. Parrish
Parrish involved a motor vehicle stop. Police pulled a car over in Luzerne County for having illegally tinted windows. The vehicle pulled over on command, but as police approached the car, they noticed that it was rocking back and forth as if people were moving around inside of it. They could not see what caused the rocking because of the tinted windows. When the police got up to the car, the driver of the car rolled down the window. The officers immediately smelled marijuana and saw a plastic bag containing marijuana in plain view. They also saw the driver straddling the center console between the two front seats and the grip of a silver handgun protruding from under the front passenger seat. Obviously, that is a strange place for the driver of the car to sit. They saw the defendant, Parrish, seated behind the driver’s seat with his hands on the headrest of the driver’s seat.
Because they saw drugs and a gun in plain view, the officers immediately arrested the driver and Parrish. They searched the entire car. They found a black bag on the passenger side in the front of the car. That bag contained a loaded gun, 250 packets of heroin, 12 packets of methamphetamine, a baggie of loose heroin, two scales, and other drug paraphernalia and ammunition. They found marijuana on the passenger-side door and a .40 caliber handgun protruding from underneath the front passenger-side seat. The glove compartment contained an extra magazine of bullets, and in the trunk, they found a bulletproof vest. They found $1,335 in cash on the defendant and $2,168 on the driver. Parrish cooperated with the police during his arrest. He gave his real name, and he did not attempt to run.
Gun and Drug Charges Based on Constructive Possession
Police charged Parrish with various drug and gun charges, as well as Receiving Stolen Property. Before trial, the court separated the felon in possession of a firearm charge from the remaining charges so that the jury would not be prejudiced by knowing that the defendant had a prior criminal record. The defendant then proceeded by way of jury trial, and the jury convicted him of all charges.
At trial, police testified to the above facts. They also confirmed that Parrish was not the registered owner of the car, and he did not have a key to the glove compartment or trunk. Police also believed that based on the positions of the men in the car, the defendant was probably not the driver. They did not test any of the items for fingerprints or DNA. The Commonwealth also presented an expert witness to testify that based on the totality of the circumstances, the drugs in the bag were likely for sale and possessed with the intent to deliver.
In this case, the defense presented evidence, as well. The defendant called a friend to testify that he had been at a party at the friend’s house all afternoon on the day of the arrest. Parrish stayed at the party until approximately 2 am. The friend then asked the driver of the car to drive the defendant home. When the defendant left the party, he was not carrying a satchel or any kind of bag. The friend also saw defendant lay down in the back seat when the defendant got into the car. The jury convicted the defendant of all charges, and the trial court sentenced him to 88 to 176 months of incarceration in state prison.
The Appeal of the Criminal Case
The defendant filed post-sentence motions for reconsideration of the sentence, for a new trial, and for discovery which the prosecution had apparently not provided prior to trial. The trial court denied those motions, and the defendant appealed to the Superior Court. On appeal, the defendant raised four issues:
whether the evidence was sufficient to sustain the convictions,
whether the trial court should have awarded a new trial based on the weight of the evidence,
whether the court abused its discretion in allowing one of the police officers to testify as an expert witness that the fact that there were two guns in the car meant that one probably belonged to the defendant, and
that the sentence was illegal because the court ordered a restitution payment in a case with no victim.
The Superior Court’s Decision
The Superior Court only addressed the first issue because it resolved the case in the defendant's favor. The court noted that sufficiency of the evidence claims involve viewing all of the evidence admitted at trial in the light most favorable to the verdict winner and determining whether there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Additionally, a conviction may be sustained entirely based on circumstantial evidence, but a jury is not permitted to simply guess.
Here, the jury convicted Parrish of both gun charges and drug charges. Both types of charges required the prosecution to prove beyond a reasonable doubt that Parrish possessed the illegal items. Because the items were not physically on him, the prosecution’s case depended on a constructive possession theory. Possession can be found by proving actual possession, constructive possession, or joint constructive possession. Constructive possession exists when the defendant has the power to control the contraband and the intent to exercise that control. It may be proven by circumstantial evidence. At the same time, the defendant’s mere presence at the place where contraband is found or secreted is insufficient, standing alone, to prove that he exercised dominion or control over the items. Location and proximity to contraband alone are thus not conclusive of guilt. Instead, the Commonwealth must be able to prove at least that a defendant knew of the existence and location of the contraband.
Here, the court reversed the conviction because the defendant was sitting in the back of the car and all of the guns and drugs were in the front. Further, the evidence established that Parrish was not carrying any type of bag when he entered the car, he did not have the keys to the car, and he was not the owner or operator of it. There was no evidence that he had ever been seated in either of the car’s front seats. Neither of the recovered firearms was registered to him, and the police had failed to test any of the items for fingerprints or DNA. The Commonwealth also failed to present any evidence whatsoever that the defendant knew of the contents of the black bag in the front because the bag was opaque. The court also rejected the idea that the defendant could have moved from the front of the vehicle to the back due to his height and weight and the size of the vehicle. The court also ignored the testimony of the Commonwealth’s expert witness, which was likely improper, and it ultimately reversed the defendant’s conviction.
Facing criminal charges? We can help.
Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta
Constructive possession is an issue that often comes up in gun cases and drug cases. In many cases involving traffic stops, the contraband in the vehicle is not actually physically on the defendant. In these types of cases, there are often defenses based on constructive possession because the prosecution may not be able to prove who in the car, if anyone, possessed the prohibited items. Even where the drugs or guns are in the actual possession of the defendant, there may be constitutional defenses to the search and seizure of the vehicle and its occupants. If you are facing criminal charges or under investigation for contraband recovered during a car stop, we can help. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding Philadelphia criminal defense lawyer today.