Philadelphia Criminal Defense Blog

Zak Goldstein 1/6/20 Zak Goldstein 1/6/20

PA Superior Court: No Basis for Stop Due to Mere Possession of Concealed Gun

The Pennsylvania Superior Court has decided the case of Commonwealth v. Price, holding that the police cannot stop you simply because they believe you have a concealed gun without some other basis for concluding that you are possessing the gun illegally or without a license to carry. This decision is not a surprise given the Pennsylvania Supreme Court’s holding in Commonwealth v. Hicks, and it is reassuring that the Superior Court is following the Supreme Court’s precedent and respecting the Second and Fourth Amendments.

Commonwealth v. Price

A Philadelphia Police Officer was working in an unmarked patrol vehicle with his partner when they received a radio call to respond to the 5100 block of Willows Avenue. According to the police, this is a high crime area, particularly for crimes of video. The radio call was for a black male wearing a white t-shirt and gray shorts. He was also driving a silver Lexus and carrying a firearm. There was no other information given to the police to suggest that he was doing anything with the gun or was not eligible to possess a gun.

At the motion to suppress hearing, the testifying officer stated that he and his partner arrived at the intersection of 51st and Willows Avenue within a minute of receiving the radio call. They then saw a silver Lexus facing westbound and stopped at stop sign. The Lexus then proceeded through the intersection and past the unmarked police vehicle. As the Lexus passed the officers’ car, one of the officers observed that the driver was a black male who was wearing a white t-shirt. The officers then turned their vehicle around and followed the Lexus until it pulled into a parking spot. The officers then stopped their vehicle and activated their lights.

One of the officers then exited the police car and approached the passenger side of the Lexus. One of the windows was down, and the officer could see that the driver, the defendant, was wearing gray shorts in addition to wearing a white t-shirt. The defendant had his hands on the steering wheel and did not respond when asked if he was carrying a firearm. One of the officers then walked to the driver’s side of the Lexus, opened the door, and asked the defendant to step out. The defendant complied with the officer’s request. He then stood up, and as he turned, the officer could see that he had a large bulge in the stomach area of his waistband. In response to seeing this bulge, both officers grabbed the defendant’s arms. One of the officers then felt the bulge and found “that it felt like a hard metal object.” The officers then handcuffed the defendant and removed from his waistband a Kel-Tec 9-millimeter gun.

As the officers were arresting the defendant, they were approached by a woman. She identified herself and told the officers that she was the one who called 9-1-1. She then pointed to the defendant and said “that’s him” and asked if they recovered the gun. The woman stated that she called 9-1-1 because she observed the defendant put an item in the trunk of a vehicle and that “he loaded bullets into a brown bag and placed that item into the trunk of the vehicle.” The woman was then taken to the police station where she gave a statement.

After speaking with the woman, the officers asked the defendant if he had any other bullets in the vehicle. The defendant responded that there were bullets in the trunk, and gave the officers written permission to retrieve them. In the trunk, the officers found a brown corduroy bag containing 41 live rounds of 9-millimetere ammunition, six blue latex gloves, and one pair of black leather gloves.

The defendant was then subsequently arrested and charged with possession of a firearm by a prohibited person (VUFA 6105), firearms not to be carried without a license (VUFA 6106), and possession of a firearm in the City of Philadelphia (VUFA 6108). Prior to trial, the defendant filed a motion to suppress arguing that he had been seized without probable cause or reasonable suspicion. At the hearing, the above stated facts were presented and entered into evidence. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. Afterwards, he proceeded to a non-jury trial where he was found guilty of the above offenses and sentenced to five to ten years’ incarceration followed by five years’ probation. The defendant then filed a timely appeal.

The Superior Court initially denied the defendant’s appeal, holding that possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous. This would permit an officer to briefly detain him in order to investigate whether the person is properly licensed. This was known as the Robinson rule. After his appeal was denied, the defendant petitioned the Pennsylvania Supreme Court for allowance of appeal. On May 31, 2019, the Pennsylvania Supreme Court decided Commonwealth v. Hicks, and this decision overturned the Robinson rule. Because of this decision, the Supreme Court remanded the defendant’s case back to the Superior Court for further review in light of Commonwealth v. Hicks.

What Happened in Commonwealth v. Hicks?

For a more detailed analysis of Commonwealth v. Hicks, please see our blog “PA Supreme Court: Police Cannot Legally Stop You Just for Carrying a Gun.” (https://goldsteinmehta.com/blog/pa-supreme-court-police-cannot-legally-stop-you-just-for-carrying-a-gun) In Hicks, the Pennsylvania Supreme Court held that the police cannot stop someone just because they have a gun. As such, a trial court must look at the totality of the circumstances to determine whether there are additional facts that would warrant a lawful stop by the police. The fact that a defendant is possession of a firearm can play a role in that analysis, but it cannot be the sole reason why an officer stops a defendant.

The Superior Court’s Decision

In light of Hicks, the Superior Court reversed itself and found that the trial court improperly denied the defendant’s motion to suppress. The Superior Court held that because “there was no evidence that the police had reason to believe that [the defendant] was carrying a firearm illegally or was engaged in any other illegal activity” the police illegally stopped the defendant. As such, the gun that was obtained from his waistband cannot be used against him in his trial. The defendant’s sentence is also vacated and he will now get a new trial.

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Zak Goldstein 12/25/19 Zak Goldstein 12/25/19

PA Superior Court: Constructive Possession Allows for Firearms Conviction Even When Firearm Not Immediately Accessible

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gomez, affirming the defendant’s conviction for gun charges even though the gun was not on him and was not immediately accessible to him because it was in a locked safe. The Court also affirmed the defendant’s conviction for receiving stolen property with respect to the firearm, which had been reported stolen, because it found that the circumstances showed a guilty conscience on the part of the defendant. This second part of the holding is important because it highlights the fact that mere possession of stolen property, including a gun, cannot support a conviction for theft or receiving stolen property. Instead, a defendant must have knowledge that the property was stolen.

Commonwealth v. Gomez

The defendant was stopped in Lancaster County, Pennsylvania while operating his vehicle. After he was stopped, he repeatedly refused to provide his license, registration, and insurance information. The defendant was not the sole occupant in the car as there were two other individuals in the car with him. According to the officers, the defendant and his companions were making furtive movements and were acting “strangely.” Specifically, the defendant called his attorney and also invited people on social media to come witness the stop by the police. His companions were flailing their hands and kicking bags. Based on these actions, the officers stated that they believed they were in danger. After repeatedly asking the defendant and his companions to exit the vehicle, the officers broke the window and physically removed them from the car.

The police then searched the vehicle. They found and recovered two firearms that had the defendant’s DNA on them. These firearms had previously been reported stolen. One of the firearms was recovered in a locked safe, while the other was found in the front center console. Also, the key to the safe was found on the defendant’s key ring. In addition to the firearms, the police also recovered heroin, fentanyl, methamphetamine, suboxone, marijuana, and other drug paraphernalia. The defendant was arrested and subsequently charged with possession with the intent to deliver (hereinafter “PWID”), various charges under the uniform firearms act (including persons not to possess a firearm (hereinafter “VUFA 6105”), receiving stolen property, and several traffic related offenses.

The Commonwealth chose to proceed under a bifurcated trial for the charges against the defendant. Specifically, the Commonwealth elected to try the defendant under the VUFA 6105 cases first and then would try him under the remaining charges. The reason the Commonwealth would do this is because they are then allowed to introduce the defendant’s prior conviction showing that he is prohibited from possessing a firearm. In the defendant’s case, he had a prior conviction for PWID which made him ineligible to possess a firearm.

The defendant chose a jury trial for the VUFA 6015 charges. At his trial, the above-mentioned facts were presented as well as his prior PWID convictions. Following the presentation of the evidence, the jury was instructed on the relevant law. Notably, defense counsel did not make any objections. At the conclusion of deliberations, the defendant was found guilty of the two charges. A few months later, the defendant proceeded with a bench trial on his remaining charges. The defendant stipulated to all the evidence presented at his previous trial. He was found guilty of the remaining charges. The defendant was subsequently sentenced to 12.5-25 years of state incarceration. The defendant then filed a timely post-sentence motion which was denied. The defendant then filed a timely appeal.

On appeal, the defendant made three arguments: first, that the evidence was insufficient to establish that he knew the weapons were stolen; second, that the Commonwealth failed to establish that he had actual possession of the gun that was found in the safe (he did not appeal his conviction for the firearm found in the center console); and finally that the trial court did not properly instruct the jury regarding possession of the firearm. For purposes of this blog, only the defendant’s second argument will be addressed.

Can I Be Convicted of a Possessory Offense Even if I am Not Actually Holding the Contraband?

Yes. You can still be convicted of a possessory offense even if you are not in actual physical possession of the contraband. Constructive possession is a legal term of art that allows a trier of fact to find that a defendant was in possession of the contraband even when they are not physically controlling it. To find that someone “constructively possessed” contraband, the finder of fact will analyze the facts to determine if the totality of the circumstances shows that the defendant was the possessor of the contraband. The trier of fact is allowed to rely on circumstantial evidence in making its decision too.

How Can a Prosecutor Prove that I Knew an Object Was Stolen?

Mere possession of a stolen good is not sufficient to convict a defendant of RSP. A prosecutor must prove beyond a reasonable doubt that the defendant knew the object was stolen or should have known that it was. To prove this, a prosecutor, like he can to prove possession, can use circumstantial evidence to show that a defendant knew or should have known an item was stolen. Prosecutors will often use the timing of a stolen good to show that a defendant had knowledge that it was stolen. For example, let’s assume that someone reports their car stolen at 12:00 PM. If a defendant was seen with the vehicle at 12:30 PM, a prosecutor can argue that he stole the car (or at the very least knew it was stolen) given the length of time between when the car was reported stolen and when the defendant was seen with it. This is just one example. Prosecutors can also argue that a defendant’s statement, how he was acting when he was arrested, alterations to the object, etc. can be sufficient proof to show that the defendant knew or should have known the object in question was stolen.

The Superior Court’s Decision

The Superior Court upheld the defendant’s conviction for illegally possessing the firearm in the safe. Regarding whether the evidence was sufficient to find that the defendant possessed the firearm, the court analyzed the facts of the case. The Superior Court found that even though that the gun was in the safe, and not immediately accessible to him, there was sufficient evidence to show that it was his firearm. Specifically, the defendant’s DNA was on the gun; he was in possession of the key to the safe where the gun was found; and the gun was found in his vehicle. As such, the Superior Court held that there was sufficient evidence to convict the defendant of illegally possessing the gun in the safe.

Additionally, the defendant’s other issues that he raised on appeal were also rejected. The Superior Court found that there was sufficient evidence to establish that he knew or should have known that the firearms were stolen. The Superior Court agreed with the defendant’s argument that there was not any direct evidence presented at trial that he knew the guns were stolen. However, the Superior Court found that there was sufficient evidence to establish that he knew or should have known they were stolen. In support of this, the Superior Court referenced the defendant’s prior convictions showing that he was not eligible to possess the firearms and his actions during the traffic stop. The Superior Court conceded “that this is not evidence that he knew the firearms in his possession were stolen…Nevertheless, these circumstances are sufficient to enable a fact-finder to infer that [the] defendant believed that the firearms were probably stolen.” Accordingly, he will be forced to serve his sentence and will not get a new sentencing hearing or a new trial.

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Zak Goldstein 12/22/19 Zak Goldstein 12/22/19

PA Superior Court Reverses Theft Conviction Due to Insufficient Proof of Jurisdiction

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Maldonado-Vallespil, holding that a defendant cannot be convicted of a crime unless the Commonwealth proves that the offense took place in Pennsylvania. In this case, the prosecution simply failed to introduce any evidence whatsoever as to where the theft crime took place.

Commonwealth v. Maldonado-Vallespil

On October 31, 2017, the defendant contacted the complainant. The defendant had been working for the complainant, but on this day, he told the complainant that he would not be working for him anymore. On that same day, the complainant arrived at work and noticed that some of his tools were missing. The complainant then contacted the police. Shortly after the police arrived, the complainant called the defendant with the police present and asked that he return the tools. The defendant admitted to previously having the tools, but he said that he had sold them. The defendant stated he would need to speak with the buyer of the tools to get them back. The Commonwealth never introduced any evidence as to where the defendant was at the time of the call or where the complainant had last seen the tools.

The police told the defendant that he needed to return the tools the following day. No charges were filed that evening so that the defendant would have time to get the tools back. The defendant then reached out to the complainant requesting more time, but his request was denied. The defendant subsequently failed to return the tools. The defendant was then arrested and charged with theft from a motor vehicle, receiving stolen property, and theft by unlawful taking. The defendant elected to have a jury trial.

At the conclusion of the prosecutor’s case, the defendant moved for a judgment of acquittal, arguing that the Commonwealth failed to establish jurisdiction. Following argument, the trial court denied that motion. At the conclusion of the defense’s case, defense counsel again moved for a judgment of acquittal, but again his motion was denied. After deliberations, the jury acquitted the defendant of all charges except receiving stolen property. On that charge, the defendant was then subsequently sentenced to one to five years in a state correctional facility. The defendant filed a timely appeal. On appeal, he argued that the trial court erroneously denied his motion for judgment of acquittal because the Commonwealth failed to establish the location of the criminal act.

Why does the location of the crime matter?

The reason it matters is because in Pennsylvania (and everywhere else in the United States), a person can only be convicted for a crime in the state in which they committed said crime. In Pennsylvania, jurisdiction is governed by 18 Pa. C.S.A. § 102. Specifically, §102(a)(1) states that an individual can only be convicted if “the conduct of which is an element of the offense or the result which is such an element that occurs within this Commonwealth.” Further, in Pennsylvania, it is not enough that the crime took place in Pennsylvania. The Commonwealth must also establish the particular county in which the crime occurred because district attorneys only have jurisdiction to prosecute cases that occurred in their particular county. In other words, if a defendant commits a crime in Philadelphia, the District Attorney for Bucks County ordinarily cannot prosecute the case unless certain exceptions apply. This is why, if you have ever watched a preliminary hearing in Philadelphia, one of the first questions a prosecutor will ask is whether a particular location is in the city and county of Philadelphia. The reason they do that is so they can establish jurisdiction.

The Superior Court’s Decision

In a divided opinion, the Superior Court held that the Commonwealth failed to establish jurisdiction and thus the defendant’s conviction must be vacated. In its opinion, the Superior Court carefully analyzed the trial record. After doing so, the Superior Court found that “nowhere in the testimony presented at trial is there any indication that [the defendant] or the tools were within the Commonwealth when [he] ‘received, retained, or disposed’ the tools.” More specifically, the Superior Court stated “the Commonwealth never established the defendant’s location, at the time he received, retained or disposed of the tools.” As such, the defendant’s conviction will be vacated, and he will not be subjected to another trial.

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Goldstein Mehta LLC Theft Defense Lawyers

Zak Goldstein 12/11/19 Zak Goldstein 12/11/19

Can My Probation Officer Search My House Without a Warrant?

Can A Probation Officer Search My House While I Am On Probation or Parole?

An issue that frequently comes up when litigating motions to suppress in drug and weapons cases is whether the police or probation department need a search warrant to search the house of a someone who is on probation or parole. In general, both the United States and Pennsylvania Constitutions require law enforcement officers to get a search warrant before conducting a search of a private residence. However, there are a few limited exceptions to this rule, and two of those exceptions apply to people who are on probation or parole.

Probation Officers May Conduct Limited Home Visits

First, a probation or parole officer may conduct a limited home visit of a probationer’s home without a warrant as part of the conditions of probation or parole. The probationer may be lawfully compelled to show the probation officer around the house, and if the officer sees anything incriminating in plain view, these items can be used against the probationer. Evidence such as drugs, guns, or other contraband may be used to establish violations of the terms of the supervision or to bring new criminal charges.

Probation Officers Do Not Need A Search Warrant - But They Do Need Reasonable Suspicion

Second, the probation officer may conduct a full search of a probationer’s house where the officer has reasonable suspicion to believe that there may be contraband in the house. Reasonable suspicion is a lower standard than probable cause, and the officer is not first required to obtain a warrant before conducting the search. Instead, the officer must simply get authorization from a supervisor. Although probation officers may use these exceptions either to conduct a home visit or search based on reasonable suspicion, they are not allowed to act as a “stalking horse” for or at the direction of the police department or other law enforcement agencies who wish to use the probation as a pretext to conduct a warrantless search.

For both types of searches, probation officers may typically search the entire house. The search is not limited to the room in which the probationer stays. This is because the owner of the house will generally sign a release prior to the probationer or parolee being allowed to stay in the house. In some cases, however, it may be possible to challenge the scope of an overly broad search with respect to a defendant other than the probationer.

Recent Caselaw on Probation and Parole Searches in Pennsylvania

The Pennsylvania Superior Court recently considered these exceptions in the case of Commonwealth v. Parker, 2016 Pa Super 280 (Pa. Super. Ct. 2016). In Parker, the Superior Court upheld the ability for probation officers to search a probationer’s home without any prior allegation of wrongdoing by the probationer, reversing the trial court’s order granting a motion to suppress crack cocaine which was allegedly found in Mr. Parker’s home.

When Parker was released from custody on a prior case, he agreed to the standard terms and conditions of probation to which many defendants must agree in counties through Pennsylvania. Specifically, he agreed to allow his probation officer to visit his home at any time to confirm compliance with the conditions of supervision. He also agreed that he would not possess any contraband and that he would permit the officer to search his home and vehicle based upon reasonable suspicion that contraband could be found.

The case began when probation officers arrived at Parker’s home to conduct a home visit. Upon entering the house, they noticed, “apparently in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and small rubber bands.” The officers believed from past experiences that such items are commonly used for drug distribution, and they also observed a shotgun in an open closet in the kitchen. The officers then went up to Parker’s room, where they found bullets, knives, and a bong all in plain view. The probation officers contacted police officers. The police officers came to the scene, but they opted not to obtain a warrant and left. The probation officers then contacted a supervisor, who authorized a search of the home, and the probation officers proceeded to find cocaine in the refrigerator. At that point, the officers called the police back to Parker’s home, and the police arrested Parker.

Grounds for the Motion to Suppress the Results of the Probation Search

Parker moved to suppress all the items, arguing that the probation officers conducted an illegal search by entering his home without reasonable suspicion and that they should have obtained a warrant before searching the refrigerator. Parker also alleged that the probation officers had used their authority to evade the warrant requirement and act as a “stalking horse” for the local police department. Parker’s attorneys suggested that the police wanted to conduct a search but did not have the probable cause necessary for a warrant.

The trial court rejected the argument that the probation officers could not enter the home to conduct a basic tour and observe any contraband in plain view, but the trial court ruled that the officers should have obtained a search warrant before searching the refrigerator. Because the officers had already called the police to the scene, they did, in effect, act as agents of the police department, and therefore, they should have obtained a warrant before finding the cocaine in the refrigerator.

Standards for Probation Searches

The Superior Court reversed the suppression of the cocaine and reaffirmed the prior decisions which set these standards. The Superior Court concluded that first, under existing caselaw, probation officers may lawfully conduct a home visit, tour the house, and seize any evidence of contraband which is in plain view. Second, once the probation officers find drug packaging, weapons, and bullets which have been left out in the open, the officers do not have to obtain a warrant to search the rest of the house because they have reasonable suspicion that other contraband might be found. Third, the court rejected the trial court’s conclusion that the probation department had acted as a stalking horse for the police department because there was no evidence at the motion to suppress that the police had in any way directed the search. Accordingly, the court ruled that the full search of the house was permitted despite the absence of a warrant.

There Are Limits on Probation and Parole Officers

Although the Superior Court ultimately ruled against Mr. Parker, the decision does show that even though defendants who are on probation at the time of a search have fewer rights than people who are not on probation, there are still real limits on the ability of a probation officer to search a house. First, the probation officer is limited to walking through the house and viewing only items which are in plain view. The officer cannot show up for a home visit and begin tearing the house apart. Second, the officer must have reasonable suspicion in order to conduct a full search without a warrant. This standard requires the officer to point to specific and articulable facts for why the officer believed contraband might be found. The officer cannot conduct a search for drugs simply because the defendant was under supervision for drugs.

Can the Police Search My House If I Am On Probation?

Although probation officers do not need a warrant to search the house of a probationer or parolee, the police cannot use the probation department to evade the warrant requirement and engage in a warrantless search. Unless the evidence is first uncovered by probation officers because it was in plain view during a home visit or because the officers had legitimate reasonable suspicion, police officers must still obtain a search warrant prior to searching the home of someone who is on probation. When the police or probation department violate these rules, the evidence could be excluded following a successful motion to suppress. This rule is called the “stalking horse doctrine.”

Our Philadelphia Probation Lawyers Can Help With Probation Violation Hearings

Zak T. Goldstein, Esq. - Philadelphia Probation Violation Lawyer

Different standards apply to probationers, but law enforcement must still follow the law. If you or someone you know are facing narcotics or weapons charges for drugs or other contraband found in your house, car, or on or near your person, you need the advice of a skilled criminal defense lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. We have even won motions to suppress significant quantities of drugs and guns due to illegal parole searches. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC at 267-225-2545 for a free, confidential, and honest case evaluation.