Philadelphia Criminal Defense Blog
PA Supreme Court: Defendant Seized Under Fourth Amendment When Police Officer Has His ID
Philadelphia Criminal Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Cost, holding that the defendant was seized without reasonable suspicion or probable cause when a police officer asked for the defendant’s identification and then retained possession of it while continuing to question the defendant. Because no person would feel free to terminate the police encounter and leave while the police officer still has that person’s identification, the police were required to have reasonable suspicion of ongoing criminal activity in order to support the seizure. This case recognizes the basic fact that when police ask for a defendant’s identification and then hold onto it while continuing the conversation, they have usually seized a defendant for Fourth Amendment purposes.
The Facts of Cost
In Cost, the defendant was arrested for various violations of the uniform firearms act in Philadelphia and filed a motion to suppress the gun which police had recovered. At the hearing on the motion to suppress, a Philadelphia Police Officer testified that he had been patrolling a high crime area in Philadelphia in an unmarked vehicle at approximately 9 pm. His partner saw the defendant and three other men in an alley. They suspected, without seeing anything actually illegal, that something could be going on back there. Therefore, they circled the block, stopped in front of the alleyway, and began to conduct an investigation. They did not activate the emergency lights or sirens on the police vehicle.
The officers got out of the car and walked over to the individuals. They asked the individuals if any of them lived back there and then asked if they had any ID. They all handed ID cards of some kind to the officers. The officer then continued to question them while holding onto the ID about whether they had anything on them that he needed to know about. At that point, the defendant began to take off a backpack. The officer asked him if there was anything in the backpack that he needed to know about, and the defendant responded that there was a gun in the backpack. This promptly led to the recovery of the gun and the arrest of the defendant for firearms charges. The officer testified that the defendant’s path was unrestricted and he could have walked away at any time and that the whole encounter took less than a minute. He never told the four men that they were free to leave. At some point, he ran their names through NCIC, but nothing came back. He also wrote down some information from the IDs on a notepad.
The trial court granted the motion to suppress. The court found that the officer had not seen anything illegal prior to asking for ID, and once the officer asked for the ID and then held onto it while continuing to question the men, the men were not free to leave. Accordingly, the officer conducted an illegal seizure because he did not have reasonable suspicion to detain them. This required the suppression of the gun. The Commonwealth appealed to the Superior Court, and the Superior Court reversed the decision suppressing the gun. The defendant then appealed to the Supreme Court, and the Supreme Court accepted the appeal.
The Supreme Court’s Ruling on the Motion to Suppress the Gun
The Supreme Court reversed the Superior Court and reinstated the trial court’s ruling. The Supreme Court found that merely asking a person for their identification does not automatically turn a mere encounter into a Terry stop that requires reasonable suspicion or probable cause. However, the Court recognized that once the person has produced the ID, the person would never feel free to leave without their ID while the officer is holding onto it. Thus, if the officer does not return the identification and instead continues to ask questions or conduct an investigation while holding a suspect’s property, the officer has usually effected a seizure which requires some level of suspicion such as reasonable suspicion or probable cause. Here, the officer had no seen the defendant do anything illegal whatsoever, and the officer seized him by holding onto his identification while continuing to question him. Therefore, the trial court properly suppressed the gun. This is a good case for privacy rights as it recognizes that a person who has been asked for their identification and has turned over that identification is not going to simply feel free to walk away without their own ID. This continues a trend of relatively progressive Fourth Amendment decisions from the Pennsylvania Supreme Court which have started to reintroduce a respect for privacy rights into the criminal justice system.
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Criminal Defense Lawyers
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, Rape, and 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.
Third Circuit Court of Appeals: Mistake of Age is Not a Defense to Charges of Transporting a Minor to Engage in Prostitution
Criminal Defense Lawyer Zak Goldstein
The United States Third Circuit Court of Appeals has decided the case of United States v. Tyson, holding that a mistake-of-age defense is not applicable to the charges of transporting a minor to engage in prostitution or producing child pornography. The decision also holds that knowledge of the victim’s age is not required to secure convictions under either of these statutes. This decision is not surprising given that the majority of circuit courts have held that mistake of age or knowledge that a victim is underage is a defense to the aforementioned charges.
United States v. Tyson
In August 2017, the defendant contacted a seventeen-year-old female on Facebook to engage her in prostitution. After communicating for several days via Facebook and text messages, the defendant traveled from Pennsylvania to New York City. The defendant picked up the complainant and her friend and brought them to Harrisburg, Pennsylvania. He then rented several rooms at a hotel in New Cumberland, Pennsylvania between August 15 and August 20, 2017. Phone records reveal that several individuals from Harrisburg contacted the complainant to engage in commercial sexual activity. On August 22, 2017, after a relative of the defendant brought the victim to a Quality Inn in New Cumberland, FBI agents and local law enforcement recovered her during a sting operation. Investigators then interviewed her and reviewed her phone. After they reviewed her phone, they found a video of her performing oral sex on the defendant.
On October 18, 2017, the defendant was indicted for knowingly transporting a minor to engage in prostitution and producing child pornography. Before trial, the Government filed a motion in limine to prohibit the defendant from eliciting evidence to establish mistake of age and from asserting mistake of age as an affirmative defense. The District Court granted the motion. The Court reasoned that evidence of mistake of age is irrelevant because the statutes that the defendant was charged under do not require proof of a defendant’s knowledge that the victim was a minor.
After this ruling, the defendant entered into a conditional plea agreement. According to the terms of the plea agreement, Government agreed to recommend to the District Court that the sentences be served concurrently for a total of 180 months’ imprisonment. The agreement also preserved the defendant’s right to appeal the District Court’s order granting the Government’s motion in limine. On December 19, 2018, the District Court sentenced the defendant to 180 months’ imprisonment for each count, to be served concurrently. The defendant then filed a notice of appeal with this court challenging the District Court’s order.
What is a Motion in Limine?
A motion in limine is a motion that can be filed by either the prosecution or the defense. The purpose of this motion is to have the judge make a ruling on a particular piece of evidence or argument that the party intends to make outside the presence of the jury. In criminal trials, it is common for defendants to file these motions to keep out particular pieces of evidence. There are strategic reasons for filing these motions. In jury trials, a defense attorney may not want to be seen objecting to particular pieces of evidence because it can be interpreted by the jury that they are attempting to hide something. As such, motions in limine are useful because a defense attorney is able to pre-emptively “object” to this evidence and keep it out before it is heard by the jury. It also allows both sides to know what evidence will be admissible at trial before the trial starts.
Motions in limine can also be used to preclude a particular party from arguing certain defenses. In the instant case, the Government filed a motion in limine to prevent the defense from arguing mistake of age defense. However, defendants can use motions in limines to prevent the prosecutor from making certain arguments. For example, prosecutors frequently like to argue witness intimidation even when there is no evidence to support this. As such, a defense attorney can file a motion in limine to preclude the prosecutor from making this argument when there is no such evidence to support this claim. This is just one example. Therefore, defense attorneys should anticipate what evidence the prosecutor intends to introduce at trial so they can file motions in limine to keep out harmful evidence and arguments against their clients. In state court, it is relatively uncommon for the prosecution to make motions in limine prior to trial. In federal court, however, prosecutors routinely file motions in limine in an attempt to undercut potential defense arguments. Therefore, it is important if you are facing federal charges to retain an attorney who has the experience to fight these motions.
The Third Circuit’s Ruling
The Third Circuit denied the defendant’s appeal. The Court analyzed the relevant statutes and other appellate decisions that have addressed this issue, including United States Supreme Court decisions. In its analysis, the Third Circuit found that the majority of other circuit court decisions have held that that it is not necessary for a defendant to know that the age of a victim to convict him of either transportation of a minor to engage in prostitution or production of child pornography. The Third Circuit found that by not specifically requiring knowledge of the victim’s age in the statutory language, Congress eliminated an offender’s opportunity to prey on children without consequence by claiming ignorance of the victim’s age. Further, the Third Circuit found that any potential prejudice to defendants was outweighed by the Government’s compelling interest in protecting children. Because knowing a victim’s age is not relevant to convicting a defendant under these statutes, a defendant cannot use the mistake of age defense. Consequently, the defendant will not get a new trial, and he will be forced to serve his sentence.
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Federal Criminal Defense Lawyers
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, Rape, and 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.
What are the penalties for possessing a gun as part of a federal drug trafficking offense?
Federal Gun Charges Lawyer Zak Goldstein
Guns and Drugs in Pennsylvania and New Jersey Federal Courts
Federal law imposes severe penalties on the possession of a firearm during a federal drug trafficking offense. Specifically, Section 924(c) requires a federal judge to impose certain consecutive mandatory minimum sentences where a defendant:
A) uses or carries a firearm;
I) during and in relation to any crime of violence which may be prosecuted in a court of the United States; or
ii) during a drug trafficking offense which may be prosecuted in a court of the United States; or
B) possesses a firearm in furtherance of such offense.
This means that there are three ways that a defendant can be prosecuted for having a gun while selling drugs. The defendant can be prosecuted for 1) the use of the weapon during the crime, 2) carrying the weapon while committing the crime, or 3) possessing a firearm in furtherance of the underlying crime.
In order to show that a defendant used a gun during a drug trafficking offense, prosecutors must show the active employment of the firearm. This generally means actually using the gun in the common sense of the word - firing it, attempting to fire it, displaying it, brandishing it, or striking someone with it. Simply having a gun nearby for protection is unlikely to qualify as the use of the firearm.
It is often easier for the prosecution to prove that someone “carried” a firearm during a federal drug trafficking offense than that the person used it. For example, carry has often been interpreted as being synonymous with possessed, and there are two types of possession. First, there is actual possession in which a defendant physically has a gun on his person such as in a pocket. Second, there is a constructive possession. Constructive possession is a doctrine which means simply that the person has dominion and control over the gun. This allows for a prosecution even where the defendant does not physically have the gun on them such as where a gun is hidden somewhere in a car. Constructive possession is harder to prove because prosecutors are not always able to show that the defendant actually knew about or controlled the gun.
Finally, prosecutors can show that a gun was used in furtherance of a specified crime by showing that the gun was possessed, either actually or constructively, during and in relation to a gun crime. This generally means that “the defendant intended the weapon to be available for use during the drug transaction, that the defendant availed himself of the weapon and that the weapon played an integral role in the drug offense.” Thus, this is a higher bar to prove than possession or simply use.
What is a drug trafficking crime that would trigger the mandatory minimum?
Federal law also provides the definition for a drug trafficking crime. Under 18 U.S.C. Section 924(c), a drug trafficking crime is:
[A]ny felony punishable under the Controlled Substances Act (21 U.S.C. § 801, et seq. ), the Controlled Substances Import and Export Act (21 U.S.C. § 951, et seq. (importation, transshipment of controlled substances), or chapter 705 of titl e 46. [46 U.S.C. App. §1901, et seq. (manufacture, distribution or possession with intent of controlled substances on board vessels)].”
Whether a specific offense qualifies as drug trafficking crime is sometimes the subject of litigation, but this mandatory minimum generally applies to the sale of drugs while possessing a firearm.
It is important to note that a defendant could also face vicarious liability, meaning that if a co-defendant or co-conspirator used a gun as part of a drug trafficking offense, the defendant could be on the hook for the co-defendant’s mandatory minimum if the defendant knew or it was reasonably foreseeable that the co-conspirator would have a gun.
What is the federal mandatory minimum for possessing a gun while selling drugs?
The mandatory minimums for possessing a gun while selling drugs can be staggering in federal court. For example, a first offense carries a mandatory minimum of five years consecutive to any other sentence. If the firearm was brandished, then the mandatory minimum increases to seven years. If the firearm was fired or was an illegal shotgun or rifle, then the mandatory minimum becomes ten years. Finally, if the gun was a machine gun or a destructive device like a bomb, then the mandatory minimum is thirty years.
The penalties become even more severe for a second or subsequent offense. For a second offense, the mandatory minimum becomes 25-years or life for a machine gun or bomb. If a death results from the use of the gun, then the penalties can be even worse.
It is important to note that these mandatory minimums are only the minimum sentence that a federal just must impose following a conviction and that the judge can actually impose more time than the mandatory minimum. The Third Circuit Court of Appeals, which handles appeals arising from federal cases in Philadelphia and New Jersey, has ruled that although the statute does not explicitly reference a maximum potential sentence, a violation of 924(c) can actually be punished by a maximum sentence of life in prison.
What are the defenses to charges of possessing a gun while committing a drug trafficking offense?
Fortunately, there are defenses to these serious charges. As with many possessory offenses, the defenses could include:
Motions to Suppress. If the police or federal agents did something illegal during the investigation of the case, it may be possible to have the drugs or guns and the charges dismissed. For example, if agents raided a home without a search warrant and found the gun which was allegedly used as part of the offense, it could be possible to have the gun suppressed, which would eliminate the prosecutor’s ability to bring the gun charges. Likewise, if police conducted an illegal interrogation by failing to provide Miranda warnings, it could be possible to have a defendant’s inculpatory statement suppressed.
Challenging Possession. In many gun cases, it may be possible to challenge whether the defendant actually possessed the gun. This could be through challenging the credibility of the agents or officers on cross-examination where they claim that the gun was actually on the defendant or by showing that the defendant did not actually know about or have control of a firearm in a case involving constructive possession allegations.
Challenging Drug Trafficking. As the statute makes clear, the mandatory minimum only applies where there is some relationship between the firearm and gun trafficking. Even if prosecutors in the Eastern District of Pennsylvania can prove that the defendant possessed the gun, it may be possible to challenge the allegations that the defendant was engaged in drug trafficking. This would be a defense to the gun charges as well because the gun charges are dependent on the drug trafficking charges.
These are just a sample of potential defenses for a gun and drug case, and there may be other defenses which apply in your case. Further, in some cases, prosecutors may have strong evidence, and it may be possible to negotiate a better deal for the client so that the client can avoid these extreme mandatory minimum sentences. Our experienced federal gun charges lawyers have the experience and expertise to fight your case and help you obtain the best possible result.
Facing criminal charges? We can help.
Gun Charges Defense Attorneys in Philadelphia, PA
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, Rape, and 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 Issues New Sentencing Guidelines for Probation Violations
The Pennsylvania Sentencing Commission recently issued new guidelines concerning violation of probation hearings (“VOP hearings”). The Sentencing Commission’s decision could dramatically change the way in which probation violations in Philadelphia and throughout the state are handled because the court no longer has unlimited discretion in fashioning a sentence.
Further, the Sentencing Commission has created the guidelines in such a way that they recommend significant prison sentences for most probation violations no matter how minor. It will take some time to see how seriously judges take the guidelines, and there has also been a recent push in the legislature to limit the unlimited discretion of judges to impose extreme prison sentences for probation violations which could lead to future changes. For now, however, the creation of these guidelines, which typically recommend jail time, appear to be a step in the wrong direction.
What is a Violation of Probation Hearing in Philadelphia?
A VOP hearing occurs when a defendant violates a judge’s probation. There are two types of potential violations: technical violations and direct violations. Technical violations occur when the defendant does not comply with some condition of his or her probation. For example, let’s assume that a condition of a defendant’s probation is that the defendant attend anger management classes. If the defendant does not go to the anger management classes, then the probation officer could recommend that the judge find the defendant in violation of his or her sentence. The judge, after holding a hearing, could then decide to revoke the defendant’s probation, impose a new period of probation, or even impose a period of incarceration on the defendant. This is just one example. Judges are given broad discretion in fashioning their sentences and thus can impose a variety of conditions on a defendant. This means that a defendant can be found in violation of probation and sentenced to prison without committing any new crimes.
Direct violations are usually more serious than technical violations. A direct violation occurs when a defendant is convicted of a new crime while on probation for another crime. Judges will often impose harsher sentences on defendants who have committed direct violations than on defendants who have committed technical violations, and potential direct violations often lead to probation detainers which prevent the defendant from being released until the new case has been resolved. Additionally, a defendant’s back judge can impose a sentence that is consecutive to the sentence the defendant received on his new case. Therefore, direct violations can cause great harm to a defendant.
What are the New Sentencing Guidelines?
The new sentencing guidelines affect both technical and direct violation hearings. If a defendant is found to be in technical violation, then the court is to consider the defendant’s original guidelines from the time of sentencing on the offense when deciding on a new sentence. For example, let’s assume that a defendant was serving a sentence on an Aggravated Assault that is graded as a felony of the first degree. Let’s also assume that when he was sentenced, he had a prior record score (“PRS”) of 1. As such, his guidelines were 42-60 months of incarceration, with the judge given the discretion to add or subtract 12 months to or from the sentence. Now let’s assume that this defendant was ordered to attend anger management classes, but he did not do so. At his VOP hearing, per the new sentencing guidelines, the court could sentence him to anywhere from 30-72 months for this technical violation. As such, a defendant can receive a worse sentence than what he originally received based on these new guidelines.
Things get worse if you are in direct violation on your probation based on the new sentencing guidelines. If you receive a direct violation, your new guidelines are most likely higher than they would be if you only had a technical violation. Instead of being sentenced to the original guidelines, if a defendant is found to be in direct violation, then the defendant will be resentenced on an increased PRS (the courts add one point for defendants with a prior PRS of 0-4, if a defendant is a 5, REVOC, or RFEL then no points are added).
To help explain this, let’s use our defendant from the previous example. Instead of not attending his anger management classes, he picks up a simple assault case which results in a conviction. At his Gagnon II hearing at which he is re-sentenced, the judge must now add a point to his PRS. So instead of being a 1, he is now a 2. Now his guidelines for resentencing are 48-66 months of incarceration plus or minus twelve months for aggravating or mitigating circumstances. Therefore, because of his new direct violation, his guidelines on his VOP range from 36-78 months. As one can see, these new guidelines are significant and can result in defendants spending more time incarcerated than they previously would have been. In many ways, this is actually worse than simply leaving it to the discretion of the judge as the rules require that the judge consider these guidelines when imposing a sentence and place any reasons for departing from them on the record.
The problem with these guidelines is that the sentencing guidelines call for jail in almost all cases. It can be almost draconian to impose a significant jail sentence on someone for not complying with a condition of their probation or even being convicted of a minor crime such as a misdemeanor. If fully implemented, these guidelines have the potential to worsen the mass incarceration problem instead of alleviating it.
Are The New Sentencing Guidelines Mandatory at a Probation Violation Hearing?
No. Just like the sentencing guidelines for the original conviction, courts are not required to impose guideline sentences. If a court imposes a sentence outside of the guidelines, then the judge must state in open court the reasons for the revocation and the sentence imposed. If a court imposes a sentence outside the guidelines, then the court must document the reasons why on the “Guideline Sentence Form” which then will be electronically submitted to the Pennsylvania Commission on Sentencing. This means that the guidelines are not binding on the court. But judges do tend to consider the guidelines and take them seriously when imposing sentence.
Facing Criminal Charges? We Can Help.
Philadelphia Criminal Defense Lawyers
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, Rape, and 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.