PA Superior Court: If you travel from your house to sell drugs to a CI, the police can get a warrant for your house.

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Kemp, finding that the police properly obtained a search warrant for the defendant’s house where police had twice seen the defendant travel from his house directly to a location where he engaged in drug transactions with a confidential informant. The court further held that police had the authority necessary to frisk the defendant when they executed the search warrant because when they arrived, he was nervous, made quick movements, dropped a bag, and backed away from them.

The Facts of Kemp

Kemp centered around whether the police properly obtained a search warrant for the defendant’s home. In their investigation, the police spoke with a confidential informant who they had previously used. The CI told them that he had purchased marijuana from the defendant multiple times over the past couple of years. The CI provided the officers with the defendant’s cell phone number and told them that he usually sells vehicle from a Jeep Cherokee or white Cadillac DTS. The CI also told police that the defendant was a SEPTA bus driver and that he had purchased marijuana from him within the past six months.

After receiving this information, the police investigated the cell phone number that the CI had provided and determined that it was registered to the defendant. Police also knew the defendant’s address from prior contacts. They also knew that he was in fact a SEPTA driver because a police report had been made on a previous occasion when the defendant had been involved in a car accident while driving a bus.

In March 2015, the police met up with the CI to engage in controlled buys of marijuana. The officer had the CI call the defendant and place an order for marijuana. The defendant agreed to sell the CI marijuana and set a location for the sale. At the same time, other officers monitored the defendant’s home. Officers observed the defendant leave his home, enter a white Cadillac DTS, and drive directly to the proposed location without making any stops. They then watched him meet with the CI and sell marijuana to the CI. The CI then returned to the officers and provided them with the marijuana. The CI confirmed that he had just purchased the marijuana from the defendant. 48 hours later, the police used the same procedures to have the CI make a second marijuana purchase. Again, the defendant traveled directly from his house to the sale location without making any stops.

The officers then obtained a search warrant for the defendant’s house. When they arrived to execute the warrant, they saw the defendant exiting the house while carrying a black plastic bag. One of the officers exited his vehicle, identified himself as a police officer, and told the defendant that he had a search warrant for the house. The defendant put the bag on the ground and began to back away. The police then handcuffed him, frisked him, and recovered a gun. At the suppression hearing, the officer testified that he knew that the defendant owned multiple guns and had a license to carry a concealed firearm. Accordingly, the frisk was for his own safety. After finding the gun, police told the defendant that they were going to search the house. They asked where the defendant’s dogs were, and the defendant then accompanied them into the house. While they were approaching the house, the defendant again began to pull away. Officers then conducted a second search of the defendant and found marijuana in his socks.

The Motion to Suppress the Drugs

The defendant moved to suppress the gun and the marijuana recovered from his socks. He argued that there was no probable cause for the police to search his house and therefore the search warrant was defective. The defendant’s argument focused on the fact that the CI never told the police that he had seen marijuana in the defendant’s house and that the police never saw any drug transactions in or near the house. The defendant also challenged the frisk that police conducted when they arrived at the house to execute the warrant, arguing that they did not have the authority to search him outside of his house. The trial court denied the motion to suppress. The defendant was convicted of Possession with the Intent to Deliver and sentenced to a county jail sentence. Although the defendant had no prior record and the guidelines should have called for probation, the trial court used a sentencing guideline enhancement for selling drugs in a school zone and therefore imposed a jail sentence.

The Superior Court Appeal

The defendant appealed to the Superior Court. On appeal, the defendant challenged the denial of the motion to suppress as well as the sentencing guidelines used in sentencing him. The Superior Court affirmed the decision of the trial court to deny the motion to suppress. It found that the police had properly established probable cause for the search of the defendant’s home because the defendant had traveled directly from the home to the location of the drug sales on two occasions without stopping anywhere along the way. Therefore, the police had sufficient reason to believe that the defendant was storing the marijuana in his house. Had he stopped somewhere before making the sales, there may not have been probable cause for the house. But because he traveled directly to the controlled buys, the warrant was not lacking in probable cause.

The Superior Court also upheld the frisk of the defendant. It recognized that when police are executing a valid search warrant, they have the authority to detain people on the promises as well as those who have recently exited and are outside the premises. Police may also engage in a frisk when they have reasonable suspicion that a person is armed and dangerous. Here, the police were justified in detaining the defendant because they had a search warrant and he had just exited the home. They were also permitted to frisk him because he appeared uneasy, dropped a bag, and backed away from the officers. The officers also knew that the defendant owned multiple guns and had a concealed carry permit. Therefore, they had reasonable suspicion that the defendant could be armed. They were also justified in the second, more intrusive search of the defendant's socks because the defendant had in fact been armed and because they had watched him sell drugs to a CI twice. Accordingly, the Superior Court affirmed the defendant’s conviction.

At the same time, the court vacated the defendant’s sentence and remanded for a new sentencing hearing. Based on the defendant’s prior record score of zero and the low offense gravity score for selling marijuana in the quantity involved, the sentencing guidelines recommended a sentence of Restorative Sanctions (probation) to nine months plus or minus three months. However, the Commonwealth had argued for but failed to sufficiently prove that the sales took place within a school zone. Had the Commonwealth proven that the sales took place in a school zone, it would have made the defendant’s sentencing guidelines 12 – 30 months. But because the Commonwealth failed to present sufficient evidence, the defendant was sentenced under the wrong guidelines and was entitled to a new sentencing hearing.

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Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or believe you may be under investigation by the police, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended thousands of clients. We are award-winning criminal lawyers who will fight for you in jurisdictions throughout Pennsylvania and New Jersey. We have won countless cases involving drug charges, gun charges, and other allegations of serious criminal wrongdoing. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense attorney today.

PA Superior Court: Police May Stop and Search You If You’re Bleeding from a Gunshot Wound

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Edwards, holding that Philadelphia Police did not violate the defendant’s rights when they stopped and searched him because he was walking down the street while bleeding from a gunshot wound. The Superior Court relied on the community caretaker exception to the warrant requirement in finding that police did not violate the defendant's rights when they stopped him even though they did not see him personally engaged in criminal activity. 

The Facts of Commonwealth v. Edwards

In Edwards, Philadelphia Police Officers were on routine patrol at around 1 am in the Kensington area. One of the officers noticed a black male, the defendant, limping in the bike lane on the west side of the street. He was walking towards the police car. As he got closer to the car, one of the officers noticed that he had blood coming down the left side of his leg. After noticing the blood, the officer attempted to get the defendant’s attention, but he ignored the officer and kept limping at a fast pace. The defendant ignored the officers as they backed up their car and tried to talk to him.

Eventually, police exited the patrol car and told the defendant to stop multiple times. The defendant initially did not stop, but he eventually turned and faced the officers. However, he continued to back away from them even after being told they were only interested in bringing him to the hospital for his leg injury. He told the officer he had been shot by a Hispanic male around the corner and that the officers should go look for the male.

The officers moved closer to the defendant, and the defendant then reached for his right jacket pocket while backing away. Based on this movement, the officers believed that the defendant was trying to hide something in his right jacket pocket. The officers also testified that the area was a high crime area known for drug sales, stabbings, shootings, and robberies. Therefore, the officers frisked the defendant, felt a hard object that they knew to be a gun in the right pocket, and then removed the gun from the defendant’s jacket. Police arrested the defendant and charged him with various VUFA charges, including possessing a concealed firearm without a license, possessing a firearm on the streets of Philadelphia, and felon in possession of a firearm. 

The Motion to Suppress the Gun

After prosecutors charged the defendant with various gun charges, the defendant’s defense attorney filed a motion to suppress the gun. The motion to suppress alleged that police did not have reasonable suspicion or probable cause to stop and search the defendant because they did not see him engaged in any criminal activity and he did not ask for their help. The trial court denied the motion to suppress, finding both that police actually had probable cause to arrest him and that the police were justified in their actions due to the community caretaker doctrine. After the trial court denied the motion to suppress, the defendant proceeded by way of bench trial. The trial judge found him guilty and sentenced him to state prison after it was revealed at sentencing that he had shot himself. The trial judge also made negative comments at sentencing about the fact that although defense counsel highlighted the defendant's extensive family support, the defendant's mother was present but did not speak on his behalf. 

The Criminal Appeal

Following sentencing, the defendant filed a notice of appeal to the Pennsylvania Superior Court. On appeal, the defendant challenged both the denial of the Motion to Suppress as well as the trial court’s sentence. Unfortunately for the defendant, the Superior Court affirmed the trial court’s ruling both with respects to the Motion to Suppress and the sentencing issue. The Superior Court relied heavily on the community caretaker doctrine as explained by the Pennsylvania Supreme Court in the recent case of Commonwealth v. Livingstone.

What is the community caretaker exception?

In general, the Pennsylvania and United States Constitutions require the police to get a search warrant before stopping and searching someone. However, there are many exceptions to this general rule. For example, police do not have to obtain a search warrant in order to stop someone on the street and conduct a frisk when they have reasonable suspicion that the person is engaged in criminal activity. Police also may conduct a full search of a pedestrian when they have probable cause to believe that a person has committed a crime. In addition to these exceptions for investigatory stops, the Supreme Court has also created the community caretaker doctrine or community caretaker exception to the warrant requirement. 

The community caretaker doctrine anticipates the possibility that police may be motivated by a desire to render aid or assistance rather than the investigation of criminal activity. Appellate courts have reasoned that police do not just investigate and prosecute crime – they also provide first aid, intervene in crises, and maintain the peace. Accordingly, police do not always need to get a warrant in order to take action when they believe that someone is in need of assistance.

In order for this exception to apply, the police must be able to point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance. When police can do that, they may be justified in conducting a stop or search without reasonable suspicion or probable cause that criminal activity is afoot. The police action must also be independent of the investigation of criminal activity, meaning it cannot be a pretext for conducting a search without the necessary level of suspicion. Finally, the level of intrusion must be commensurate with the perceived need for assistance. Thus, in Livingstone, the Supreme Court summarized the rule as follows: 

“To summarize, in order for a seizure to be justified under the public servant exception to the warrant requirement under the community caretaking doctrine, the officer must point to specific, objective, and articulable facts which would reasonably suggest to an experienced officer that assistance was needed; the police action must be independent from the detection, investigation, and acquisition of criminal evidence, and based on a consideration of the surrounding circumstances, the action taken by police must be tailored to rendering assistance or mitigating the peril.” 

The Superior Court's Decision

Here, the Superior Court found that the police acted reasonably and pursuant to the community caretaking doctrine. They saw the defendant limping, with a bloody leg, at 1:20 am in a dangerous area. They approached and offered medical assistance. The court found that they would have been neglecting their duties had they not done so. Further, the officer identified specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen was in need of assistance. The court also found that they were not looking for criminal evidence, meaning their actions were independent from the detection, investigation, and acquisition of criminal evidence. They were planning on taking the defendant to the hospital. They only frisked the defendant because he bladed his body away from the officer and placed his hand in his pocket as if he were trying to conceal something. Finally, the level of intrusion was commensurate with the need for assistance. The police had merely stopped to offer aid. Only after the defendant acted strangely by backing away, turning his body, and reaching in his pocket, did the police conduct any kind of search. The court found that that search was a legitimate safety frisk and upheld the decision of the trial court. 

The Superior Court also rejected the defendant’s sentencing challenge. Here, the defendant argued that the trial court abused its discretion in sentencing him when the trial judge pointed out that the defendant’s mother was present for sentencing but did not speak on his behalf. After the trial judge made that remark, the defense attorney asked to have the mother speak, but the trial judge refused to permit her to speak. The defense ordinarily must file a post-sentence motion explaining any challenges to a sentence in order to be able to appeal the discretionary aspects of a sentence, but here, the Superior Court found that the issue was not waived for appeal because the defendant’s attorney had attempted to call the mother as a witness but been prevented from doing so. The Superior Court reached the merits of the issue, but affirmed the sentence because the judge considered a number of factors and did not base the sentence only on the mother’s failure to testify at sentencing. Therefore, the trial court did not abuse its discretion.  

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Goldstein Mehta LLC Criminal Defense

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Superior Court: Even Partial Concealment of Firearm Requires Concealed Carry Permit

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Montgomery, finding that even partial concealment of a gun in a defendant's waistband establishes a prima facie case of a violation of VUFA 18 Pa.C.S. Sec. 6106 (firearms not to be carried without a license) for purposes of a preliminary hearing. Whether the defendant intended to conceal the firearm is likely an issue for trial, but the presence of the gun in the defendant's waistband, even though part of it was still visible, was enough to show concealment at a preliminary hearing. This is a bad case for the defense which makes it even easier for the Commonwealth to prove Violations of the Uniform Firearms Act. 

The Facts of Commonwealth v. Montgomery

Montgomery was arrested and charged with various violations of the uniforms firearms act. This case focused on whether or not the evidence presented at his preliminary hearing was sufficient to show that he had concealed the firearm in violation of 18 Pa.C.S. Sec. 6106. The Commonwealth called only witness at the preliminary hearing - the Philadelphia Police Officer who had arrested the defendant. At the hearing, the officer testified that he drove by the defendant and saw him “messing with” what the officer believed to be “the handle of a gun in his waistband.” The officer also testified that he could not see the entire gun. He could only see the the handle. 

The defendant then walked into a nearby store. The officer stopped his police car in front of the store and watched the defendant walk out of the store. The officer testified that the defendant saw him and then immediately walked back into the store. The officer exited his vehicle and went into the store. he stopped the defendant in the store, searched him, and did not find the gun. He did locate a gun several feet away on top of a rack of potatoes. The only other person in the store at the time was the cook, who was not very close to the gun. 

The officer arrested the defendant and charged him with violations of § 6106 and 18 Pa.C.S. § 6018 (Carrying Firearms on Public Streets or Public Property in Philadelphia). At the preliminary hearing, the Philadelphia Municipal Court Judge dismissed the § 6106 charge because, according to the court, the Commonwealth did not establish at a prima facie level that the defendant concealed the gun.

The Commonwealth then re-filed the complaint (which it is allowed to do under Rule 544 of the Pennsylvania Rules of Criminal Procedure). In Philadelphia, re-filed criminal complaints are typically heard by a Common Pleas Judge who sits in Motions Court. That judge will review the transcript from the preliminary hearing and hear any new evidence or testimony which the Commonwealth wishes to present. That judge will then make a decision as to whether the charges should be held for court or whether the Municipal Court Judge correctly dismissed the charges. Notably, the Superior Court indicated in a footnote that this procedure is not technically correct as the re-filed complaint should be heard by the same Municipal Court Judge who dismissed the case. Alternatively, if the Commonwealth files a motion seeking a different judge for the second preliminary hearing, the case should be heard by a different Philadelphia Municipal Court judge. In this case, neither party objected to the usual procedure of the case being heard in the Court of Common Pleas, so the Superior Court did not do anything to disturb that procedural route. Nonetheless, it may be possible to object to this procedure in the future in order to keep a case in the Municipal Court. Nonetheless, the Commonwealth did not present any new evidence for the Court of Common Pleas Judge, and that judge also agreed that the Commonwealth failed to establish concealment of the firearm. The prosecution appealed to the Superior Court. 

What is VUFA § 6106? 

VUFA § 6106 basically makes it a crime to carry a concealed gun on your person or in a car without a concealed carry permit. There are some limited exceptions. The statute provides “[a]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in the place of abode or fixed business, without a valid and lawfully issued license” commits a felony of the third degree. In other words, a person cannot have a gun without a valid license and conceal that gun or he or she will be in violation of § 6106.

As such, there are several elements to this charge. First, the defendant must have a gun. Second, the person must not have a valid license to possess the gun. Third, the person must not be in his home or fixed place of business. And finally, a defendant must conceal the gun. 

When is a gun concealed?

According to the Pennsylvania Supreme Court, any concealment, including a partial concealment, is sufficient to establish the concealment element for § 6106. However, concealment is a fact-specific inquiry. For example, suppose someone is walking down the street in broad daylight with a pistol in his hand. This person is holding the gun up in his hand and tossing it up in the air. The police come and tell him to drop the gun and he puts the gun in his waistband. In this particular fact pattern, the defendant has probably not committed § 6106. Why? Because he made no attempt to conceal the gun. He made it very clear that he had a gun on his person.  

Now let’s change the fact pattern. Let’s suppose that someone is walking down the street and he has a gun in his waistband. A concerned bystander then notifies a police officer that this person has a gun. When the police officer approaches this person, he immediately tells the officer that he has a gun and gives it to him. This person has probably committed § 6106 because even though he was honest with the officer and cooperated with him, the gun was technically concealed for purposes of § 6106. 

Does the concealment element require the Commonwealth to prove a mens rea (mental state)? 

The answer to this question is yes, the Commonwealth must prove that the defendant was at least reckless in concealing the gun. As discussed in our December 9, 2017 blog (unlawful possession of a concealed firearm requires intentional concealment), the Superior Court held in the case of Commonwealth v. Scott that concealment is not established per se just because the gun is in the waistband. This might seem contradictory. However, it is important to remember at what stage each of these cases were decided. In Scott, the Superior Court reached its decision after a trial, and there was evidence in the record to suggest that the gun in that became concealed by accident. In the instant case, the defendant had not yet gone to trial. His case was only at the preliminary hearing level. The burden of proof is much lower at a preliminary hearing than at trial, where the prosecution must prove the case beyond a reasonable doubt. 

Thus, in the context of VUFA § 6106, the Commonwealth must prove beyond a reasonable doubt that a defendant intentionally, knowingly, or recklessly concealed the gun. However, the Commonwealth does not have the same burden at a preliminary hearing. At a preliminary hearing, the Commonwealth only needs to establish a prima facie case of guilt. Additionally, the Commonwealth is entitled to all reasonable inferences in its favor. In other words, it is a much lower burden for the Commonwealth to prevail at a preliminary hearing. If a gun is even remotely concealed, then according to the Superior Court, this will be sufficient to establish the element of concealment at a preliminary hearing. That does not mean the defendant will be convicted at trial; only that the defendant should be required to stand trial. In a gun case, there may be other defenses, including a motion to suppress for an illegal stop as well also officer credibility. 

The Superior Court Finds that the Commonwealth Proved Concealment

In a relatively short opinion, the Superior Court held that because the defendant had the gun in his waistband, the Commonwealth established concealment at the preliminary hearing. The Court further explained that the defendant's subsequent actions also showed that he intended to conceal the gun. Specifically, his decision to go back into the store and try to discard the gun indicated an intent to conceal the weapon. Therefore, the Superior Court held that the evidence was sufficient to establish concealment at a preliminary hearing. Consequently, the Defendant now must stand trial for § 6106.  

Philadelphia Criminal Defense Lawyers

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If you are charged with the illegal possession of a gun or any other criminal charge, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. There are often defenses to gun charges ranging from motions to suppress, constructive possession arguments, and accidental concealment defenses. Our award-winning criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.  

SCOTUS: Defendant May Waive Double Jeopardy by Moving to Sever Felon in Possession of Firearm Charge

Philadelphia Criminal Defense Lawyer Zak Goldstein

The United States Supreme Court has decided the case of Currier v. Virginia, holding that a defendant may waive double jeopardy protections by consenting to the severance of criminal charges and moving for separate trials on different charges. Specifically, the defendant may waive his or her double jeopardy rights by moving to sever a felon in possession of a firearm charge from the other charges in a criminal case. 

The Facts of Currier v. Virginia

In Currier, prosecutors charged the defendant with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon in Virginia. Coincidentally, the defendant was not eligible to possess a gun because he had prior convictions for burglary and grand larceny. Because the defendant was charged with unlawful possession of a firearm by a convicted felon, prosecutors would have been allowed to introduce his prior convictions for burglary and grand larceny in his trial as the existence of those prior convictions is an element of the statute. This would have been detrimental to his case because the jury would have heard both that he had prior convictions in general and that he had prior convictions for the exact same thing with which he was charged. 

Accordingly, the defendant and the Government agreed to sever the charges and hold two separate trials. As discussed in the Court’s opinion, there is no universal way to handle this issue and each jurisdiction is different. In Virginia, a defendant can have two trials: one for the unlawful possession of a firearm by a convicted felon and a second trial for the other charges. In this case, Petitioner elected to have two trials. This is not the normal procedure in Philadelphia. In Philadelphia, the prosecutors will ordinarily proceed against the defendant on the non-felon in possession charges first. If the prosecution obtains a conviction on all of the charges other than the felon in possession charge, then the defense will typically allow the trial judge to make the decision on the remaining gun charge. If the jury acquits on all of the other charges, then the prosecution will usually move to nolle prosse the remaining gun charge. In some cases, the prosecution does still insist that the jury hear the felon in possession case after it has ruled on the other charges. However, Philadelphia does not typically conduct two separate trials in these types of cases. 

The first trial, for the charges of grand larceny and burglary, went very well for the defendant. He was acquitted of both charges. When he appeared for his second trial, his defense attorneys moved to dismiss the gun charge. They argued that it would violate his constitutional right against Double Jeopardy. In the alternative, he asked that the prosecution not be allowed to introduce any evidence pertaining to the grand larceny and burglary charges because he was acquitted of those charges. The trial court denied the defense's request, and the jury found him guilty of the gun charge. The court sentenced him to a lengthy period of incarceration. He appealed through the Virginia state appellate system, and both the Virginia Court of Appeals and the Virginia Supreme Court affirmed the denial of his double jeopardy motion. He appealed to the United States Supreme Court, and the Supreme Court granted certiorari and agreed to hear the case. 

What is Double Jeopardy? 

The Fifth Amendment of the United States Constitution prohibits a defendant from being tried twice for the same crime after he or she has been acquitted or convicted of the crime. These situations can become more complicated than one would expect, but a simple example of double jeopardy is this: Imagine a defendant is charged with robbing a bank. The defendant goes to trial, and the jury acquits him of robbing the bank. The same jurisdiction cannot then re-try him again for robbing the bank, even if prosecutors later uncover more evidence that would have likely led to a different verdict. 

It is important to note that under the federal constitution and subsequent case law, this protection only applies to the particular jurisdiction that tried the defendant. In other words, just because a defendant is acquitted of a crime at the federal level does not mean that the state government cannot prosecute for the crime too. However, the rules governing this depend on the jurisdiction. Pennsylvania offers much broader Double Jeopardy protections in comparison to other states. Thus, if a defendant is acquitted in federal court, Pennsylvania prosecutors cannot then bring charges. The reverse, however, is not true - if a defendant is acquitted in Pennsylvania court, the federal government can still bring charges. Click here to learn more about double jeopardy in general. 

The Double Jeopardy Clause also has a collateral estoppel component to it. What this means is that the government cannot re-litigate a fact that was decided in a defendant’s favor. To give a basic example of this, let’s assume that a defendant punched a person in the face and took their phone. This is technically a robbery, but it is also a simple assault. Let’s also assume that at trial, the government chooses only to proceed on the robbery charge and the defendant is found not guilty. The doctrine of collateral estoppel prevents the government from re-arresting the defendant for simple assault because he was already found not guilty of an essential fact of the case (i.e. punching the complainant) in the robbery trial. 

This idea of collateral estoppel, as discussed in Currier, is not a universally accepted idea by legal jurists and remains controversial. However, as the justices noted in their opinion, collateral estoppel was not the issue in this case, though it is a little confusing (as discussed below). The issue in Currier, according to the justices, was whether a defendant can waive his Double Jeopardy protections by seeking a severance of the charges filed against him. 

The Court Holds that a Defendant Can Waive His Double Jeopardy Protections When He Agrees to Severance of the Charges

In Currier, the Supreme Court held that a defendant may waive his Double Jeopardy protections when he elects to have two trials. In making its decision, the Court looked at its prior decisions that addressed the issue. In its research, the Court concluded that when a defendant elects to have two trials, he is no longer entitled to Double Jeopardy protections. The Court stated that the Double Jeopardy Clause was designed to protect against government oppression, not from the consequences of a defendant’s voluntary choice. 

The defendant, of course, argued that he had no real choice. If he had not elected to sever his cases, than the jury would have heard that he had prior convictions for the same offenses, and he would not have received a fair trial. However, the Supreme Court noted that though he was entitled to have separate trials under Virginia law, it was not a constitutional right to have separate trials. Thus, he was not forced to give up one constitutional right to secure another. Additionally, the Court held that because the defendant consented to the severance of the cases, the prosecution could still introduce evidence relating to the charges for which he had already been acquitted.

This decision will likely prove confusing and frustrating for criminal defendants because even though the defendant was found not guilty of the burglary and the grand larceny charges, the prosecution was allowed to introduce evidence for those crimes in his second trial. The Court made clear that its decision was based on the text of the Fifth Amendment and therefore held that the Double Jeopardy Clause only prohibits re-litigating offenses, not issues or evidence. Consequently, the Court held that the normal rules of evidence apply and thus a trial court must decide whether to allow the introduction of evidence and facts from the prior trial. 

Facing criminal charges? We can help.

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges in state or federal court, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of criminal cases in trial and appellate courts throughout Pennsylvania and New Jersey. If you are under investigation or have been arrested, we offer a 15-minute criminal defense strategy session free of charge. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.