Philadelphia Criminal Defense Blog

Zak Goldstein 2/21/20 Zak Goldstein 2/21/20

PA Superior Court: No Search Warrant Required to Access Data on Public WiFi Network

The Superior Court has decided the case of Commonwealth v. Dunkins, holding that the police do not need a search warrant to obtain data that is transmitted over a public WiFi network. This decision is significant because people access public WiFi networks on a daily basis and now may have a reduced privacy interest in that activity. If you are a suspect in a crime, the police then can use this information as substantive evidence to arrest you. Despite this information being very personal, Dunkins holds that the police do not need to obtain a search warrant to obtain this information.

Commonwealth v. Dunkins

The incident in question took place on February 2, 2017 at approximately 2:00 AM at Moravian College in Bethlehem, PA. Two men wearing ski masks pretended to be campus police officers and gained access to the dorm room shared by the complainants. The complainants were apparently known drug dealers at Moravian College. When one of the complainants opened the dorm door, one of the masked men punched him and caused him to fall. The masked men then held the students at gunpoint and demanded marijuana and the key to one of the complainant’s footlockers. The masked men accessed the footlocker and stole approximately $1,000 in cash as well as a jar of marijuana.

Several hours later, around 11:00 AM, one of the complainants reported the robbery to the campus officials. A Moravian Campus Police Officer requested that Moravian’s Director of Systems Engineering analyze its wireless network data to compile a list of the students who logged onto the network near the wireless access point in the dormitory where the complainants resided. The campus officials discovered, at the time of the robbery, that there were only three individuals logged onto the campus WiFi at that location who did not reside in that building. Two of the three WiFi users were female. The male user was the defendant, who was also a Moravian student.

The Moravian Campus Police provided this WiFi data to a detective with the Bethlehem Police Department which subsequently took over the investigation. One of the complainants told the detective that the defendant previously “robbed” him by taking marijuana from him without payment in return. The defendant was subsequently interviewed by the police. He denied the accusations and stated he has not been in the complainant’s dormitory since October 2016. This was obviously contradicted by the WiFi records.

Another student who lived in the dorm room next to the defendant told police that the defendant came to his room after midnight on February 3, 2017 and showed off a large display of cash and bragged that he obtained this money in a recent robbery. According to this student, the defendant boasted that he and another individual posed as campus police officers to gain access to the victim’s room and subsequently stole drugs and money from the complainant’s footlocker.

The Motion to Suppress

The defendant was subsequently arrested and charged with robbery, conspiracy, receiving stolen property, and simple assault. The defendant then filed a motion to suppress, arguing that the campus police conducted an illegal search in obtaining the campus WiFi log-on data without first obtaining a warrant. At his suppression hearing, the Moravian Systems Engineering Director explained that in order to utilize Moravian’s WiFi each student must log on to the network with their individual username and password. However, at their initial log-on, students may choose to have their devices automatically long on to the campus WiFi without entering their credentials again. The parties also noted that the defendant had signed the Moravian Student Handbook which indicated that he accepted and understood Moravian’s policies, including its technology rules. These rules specifically state that “users cannot and should not have any expectation of privacy with regard to any data, documents…or other computer files created or stored on computers within or connected to the institution’s network.” After the evidence was presented, the trial court denied the defendant’s motion to suppress.

The defendant then proceeded to a jury trial where he was found guilty of the aforementioned crimes. On January 4, 2019, the trial court imposed an aggregate sentence of five to ten years’ imprisonment. The defendant then filed a post-sentence motion which was denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue as to whether the trial court improperly denied the defendant’s motion to suppress will be addressed.

Does the Fourth Amendment Protect Data that is Generated from Electronic Devices?

Yes. Fourth Amendment protection is not constrained by the type of property in question, but instead whether the person who claims the protection has a legitimate expectation of privacy in the property. Recently, the United States Supreme Court decided the case of Carpenter v. United States in which the Court held that law enforcement officials improperly acquired the defendant’s cell site location information (hereinafter “CSLI”) without a warrant. In that case, the law enforcement officers compelled the defendant’s wireless carriers to provide a record of his CSLI for a four-month period. This allowed the officers to track his movements during the time when robberies had occurred. In that case, the United States Supreme Court found that collecting this CLSI data without a warrant violated the Fourth Amendment.

However, the United States Supreme Court emphasized that this was a narrow opinion. Specifically, the Court said that its decision does not apply to “tower dumps” which is a download of information on all of the devices that were connected to a particular cell site during a particular interval. Additionally, other federal circuit courts have held that a person can lose their privacy interests in their data when they sign employer policies that state their electronic activity can and will be disclosed to third parties. As such, when an individual signs these “contracts,” they can lose their right to challenge the disclosure of their electronic data being transmitted to third parties.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s order denying the defendant’s motion to suppress. In its opinion, the Superior Court declined to overturn the trial court’s decision for several reasons. First, the Superior Court analogized the acquisition of the data from Moravian’s wireless campus to a “tower dump,” which as previously discussed, is permissible under Fourth Amendment law. Additionally, the Superior Court found that the defendant’s specific CSLI was not obtained in this case and therefore the police’s actions were not specifically intrusive to the defendant. Finally, the Superior Court found it persuasive that the defendant voluntarily consented to third parties accessing the data that was transmitted over Moravian’s WiFi systems. Therefore, the Superior Court found that the trial court properly denied his motion to suppress. Additionally, his other issues on appeal were denied, and therefore the defendant will not get a new trial and he will be forced to serve his sentence.

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Zak Goldstein 2/13/20 Zak Goldstein 2/13/20

Third Circuit Court of Appeals: Suspect Who Refuses to Provide Password Can Only Be Held in Contempt For 18 Months

The Third Circuit Court of Appeals has decided the case of United States v. Apple Mac Pro Computer, holding that the suspect in a Philadelphia federal child pornography case could only be held for eighteen months for refusing to provide the password to his laptop in response to a court order.

In Pennsylvania and the federal system, prosecutors have increasingly sought court orders in an attempt to compel suspects to unlock their electronic devices in investigations involving internet crimes and illegal pornography. Pennsylvania state courts have found that these types of orders are likely to violate a defendant’s Fifth Amendment rights, but the Third Circuit Court of Appeals has adopted the foregone conclusion doctrine which holds that a suspect can be compelled to produce a password when the Government can prove that the suspect owns the device in question and knows the password. The penalty for refusing to comply can be civil contempt in which the person is jailed until they eventually give up the password. This decision holds that a suspect who refuses to comply with this type of order can only be incarcerated for at most eighteen months, meaning they can no longer be held indefinitely.

United States v. Apple Mac Pro Computer

The defendant was a former Philadelphia Police Sergeant who was under federal investigation for possessing child pornography. As part of that investigation, the Delaware County Criminal Investigations Unit executed a search warrant on the suspect’s residence. As a result of that search warrant, government agents obtained the suspect’s Apple iPhone 5S, an Apple iPhone 6 Plus, and an Apple Mac Pro Computer with two attached Western Digital External Hard Drives, all of which were protected with encryption software.

Agents from the Department of Homeland Security then obtained a federal search warrant to examine the seized devices. The suspect voluntarily provided the password for the Apple iPhone 5S, but he did not provide the passwords to decrypt the Mac Pro or the external hard drives. Ultimately, forensic analysts discovered the password to decrypt the Mac Pro, they but could not determine the passwords to decrypt the external hard drives. Forensic examination of the Mac Pro revealed (1) an image of a pubescent girl in a sexually provocative position, (2) logs showing that the Mac Pro had been used to visit websites with titles common in child exploitation, and 3) that the suspect had downloaded thousands of files known to be child pornography. Those files were not on the Mac Pro. Instead, they were stored on the encrypted external hard drives. In the course of their investigation, officers interviewed the man’s sister who stated that the suspect had shown her hundreds of images of child pornography on the encrypted external hard drives, which included videos of children who were nude and engaged in sex acts with other children. However, without a password to decrypt the hard drives, the agents could not access the files themselves, making a criminal prosecution difficult.

In August 2015, a Federal Magistrate Judge ordered the former Philadelphia Officer to produce all encrypted devices, including his external hard drives, in a fully unencrypted state. The suspect did not appeal the order, but instead filed a motion to quash the Government’s application to compel decryption, arguing that the act of decrypting the devices would violate his Fifth Amendment privilege against self-incrimination. Eventually, his motion was denied, and he was directed to fully comply with the decryption order. The Magistrate Judge acknowledged the suspect’s Fifth Amendment objection but held that because the Government possessed his devices and knew that their contents included child pornography, the act of decrypting them would not be testimonial for purposes of the Fifth Amendment privilege against self-incrimination.

Approximately one week after the denial of the motion to quash, the suspect and his attorney appeared at the Delaware County Police Department for the forensic examination of his devices. He produced the Apple iPhone 6 Plus in a fully unencrypted state by entering three separate passwords on the device. The phone contained adult pornography, a video of the defendant’s niece in which she was wearing only her underwear, and approximately twenty photographs which focused on the genitals of his niece. The man stated that he could not remember the passwords necessary to decrypt the hard drives and entered several incorrect passwords during the forensic examination.

Following the forensic examination, the Government moved for an order to show cause why the suspect should not be held in contempt for his failure to abide by the decryption order. Following the hearings on this issue, the District Court found that the suspect remembered the passwords but chose not to provide them to the government agents. On September 30, 2015, the suspect was held in contempt. The court ordered that he would be held indefinitely until he agreed to comply with the order. He immediately appealed this decision, and the Third Circuit upheld his contempt order. The suspect eventually filed a motion to vacate the contempt order and order his release because, at the time of this subsequent appeal, he had been in custody for more than 18 months.

What is Civil Contempt in Federal Court?

28 U.S.C. § 1826 (a) governs civil contempt. The statute states:

Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.

In other words, this statute gives judges authority to incarcerate or fine individuals who refuse to comply with an order to provide requested information. This order could involve testimony in a court proceeding (i.e. a grand jury proceeding), but it could also involve specific documents, passwords, emails or almost anything that could be of some evidentiary value.

What is the Difference Between Civil Contempt and Criminal Contempt?

Civil contempt is frequently used in Federal litigation. The main difference between civil and criminal contempt is that civil contempt is designed to compel compliance with a particular order, whereas criminal contempt is designed to punish. Although in the instant case involves a potential criminal proceeding, civil contempt is very common in cases where a witness is compelled to testify in a grand jury hearing but refuses to do so even after being granted immunity.

It is also important to note that the burden of proof is different in each type of hearing. In a criminal contempt case, the Government must prove its case beyond a reasonable doubt, whereas in a civil contempt hearing, the burden is clear and convincing evidence and thus not as difficult to prove as criminal contempt.

The Third Circuit’s Decision

The Third Circuit ordered the suspect be released. In its ruling, the Third Circuit specifically stated that § 1826(a) specifically states that “no period of such confinement shall exceed the life of 1) the court proceeding, or 2) the term of the grand jury including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.” The Third Circuit specifically found that the suspect qualified as a witness for purposes of § 1826(a) and it was of no consequence that the suspect was also a suspect in connection with other offenses. Therefore, because his detention exceeded eighteen months, the Third Circuit ordered his immediate release from custody. This is an important decision because it imposes a finite limit on the ability of the Government to hold someone for failing to comply with an order to decrypt an electronic device. Given the possibility of decades in prison for federal child pornography offenses, it may make sense to risk civil contempt rather than unlock a device that could support a federal prosecution.

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Zak Goldstein 2/8/20 Zak Goldstein 2/8/20

PA Superior Court: Ordinary Careless Driving Does Not Support Conviction for Homicide by Vehicle

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Superior Court has decided the case of Commonwealth v. Sanders, holding that careless driving is not sufficient to convict a defendant of Homicide by Vehicle. This decision is significant because it recognizes the fact that accidents, even fatal ones, happen and are not necessarily criminal. Thankfully, this decision acts as a check on a prosecutor’s ability to charge a defendant for Homicide by Vehicle when the facts show that the defendant was driving carelessly rather than with gross negligence or recklessness.

Commonwealth v. Sanders

On April 2, 2016, an officer with the Cheltenham Police Department responded to a report of a fatal accident at the intersection of Glenside Avenue and Limeklin Pike in Cheltenham, Montgomery County. Upon arriving at the scene, the officer observed the ninety-three year old victim underneath a SEPTA bus. The driver of the bus, the defendant, was subsequently arrested and charged with homicide by vehicle, careless driving, careless driving causing unintentional death, failure to yield the right of way, and improper turning movement.

At her trial, the Commonwealth called several witnesses in addition to the aforementioned officer. First was another motorist, who was behind the SEPTA bus in the westbound lane of Glenside Avenue at the time of the accident. She testified that as the bus began to make a left-hand turn onto Limeklin Pike, she observed an elderly man begin to cross Limeklin Pike from west to east. The man put his hand up, and then vanished from her sight. She testified that the bus was making a slow, methodical turn. While she was stopped at the light, prior to the bus moving, she did not see the man standing on the corner.

The Commonwealth also called an expert in accident reconstruction. He testified that on the day of the accident, he observed the victim under the SEPTA bus. He also testified that the intersection of where the crash occurred is controlled by a traffic signal and that there are four designated, marked crosswalks. He also testified that he was present for the autopsy of the victim, which indicated that he died of multiple injuries to the trunk and related fractures.

The Commonwealth’s expert also testified that the speed, roadway conditions, weather, and obstructed vision were not contributing factors in this crash. He also reviewed the rules manual for the Surface Transportation and Bus Division from SEPTA, as well as surveillance video taken from inside of the bus. The video shows the defendant picking up and looking at papers as she was stopped at the light. As a result of this distraction, she stopped over the white stop line, in the crosswalk. The expert opined that she may not have been able to see the victim on the diagonal corner waiting to cross.

The video also showed that the defendant was preoccupied with the papers in her hand. At the time she began the turn, there were no other vehicles or pedestrians in the intersection. Before beginning her turn, she only waited 2.33 seconds (which is contrary to SEPTA policy of waiting 4 seconds prior to entering an intersection). The video also showed that the victim was in the crosswalk for approximately 6.75 seconds before being struck by the bus. The expert was also able to determine that the defendant attempted to brake before striking the complainant. The expert finally gave his opinion that the defendant operated her bus in a reckless, careless and negligent manner, which caused the crash.

The defendant also testified at her trial. She testified that she had been driving for SEPTA for approximately 18 years. She testified on the day of the incident, this was the first time that she had driven this route and that she was looking at the map so she could follow the directions. She also testified that she did not see any pedestrians at the intersection. Finally, she testified that as a professional driver, especially of a tandem bus, there is a significant risk of hitting another vehicle or a pedestrian, causing damage or injury.

Following a bench trial, the defendant was convicted of the aforementioned charges. The defendant was then subsequently sentenced to five years’ probation. Following sentencing, the defendant filed timely post-sentence motions, which the trial court denied. She then filed a timely notice of appeal. The defendant filed three issues of appeal, but the Superior Court only addressed her sufficiency of the evidence claim.

What is Homicide by Vehicle?

The crime of Homicide by Vehicle is codified under 75 Pa C.S.A. § 3732. The statute provides:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except relating to [DUI] is guilty of homicide by vehicle.

To convict a defendant under § 3732, the Commonwealth must prove that that the defendant violated a provision of the Motor Vehicles Code and that this violation was a cause of the victim’s death. The violation of the Motor Vehicles Code must be a direct and substantial factor in the victim’s death. Further, the defendant’s conduct must be either reckless or grossly negligent. If the court finds that the defendant’s actions are careless, then it is not sufficient to convict the defendant of § 3732. Finally, to be guilty of § 3732, a person must be aware that there exists a substantial risk that injury will result from their driving and yet continue to drive in such a manager callously disregarding the risk created by their own reckless driving.

The Superior Court’s Decision

The Superior Court reversed the trial court and vacated the defendant’s conviction for § 3732. In the instant case, the trial court agreed that there was sufficient evidence to find that the defendant violated various provisions of the Motor Vehicle Code. However, the Superior Court found that the evidence did not support a finding that she was conscious that her driving created a substantial and unjustifiable risk that would cause injury, but that she nonetheless proceeded to drive in a reckless manner causing the victim’s death. Specifically, the court found persuasive of the facts that this was the first time she drove this route; that the Commonwealth’s expert testified that she may not have been able to see the victim; and that she was looked left, forward, and right before moving to make sure there was no oncoming traffic. As such, the Superior Court found that this was careless driving and this just not enough to convict her of § 3732. Therefore, her conviction for § 3732 is vacated and her case will be remanded for a new sentencing hearing for the remaining charges.

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Zak Goldstein 2/6/20 Zak Goldstein 2/6/20

PA Superior Court: Ordering Driver to Roll Window Down Is A Stop

Philadelphia Criminal Lawyer Zak Goldstein

Can the police make you roll down your car windows?

For years, Pennsylvania appellate courts have had some difficulty in defining the point at which a person is seized by police for Fourth Amendment purposes, finding in some cases that even where police clearly restrict a person’s movement, they may not be stopped. More recently, however, the Supreme and Superior Courts of Pennsylvania have issued a number of important cases which reflect the obvious fact that when the police tell you what to do, you are not free to leave. The Superior Court has now decided the case of Commonwealth v. Powell, holding that when police officers surround a legally parked vehicle and order the driver to roll down his window, the interaction is an investigatory detention (a stop) and not a mere encounter. This is important because in order to win a motion to suppress, a defendant has to show not only that the police acted without reasonable suspicion or probable cause, but also that they actually seized the defendant in some way. Police are free to walk up to any person and initiate a conversation without any level of suspicion. But once they start issuing commands, the situation changes dramatically and police are required to have reasonable suspicion or probable cause.

Commonwealth v. Powell

On April 27, 2018, an Edinboro, PA Police Officer was on duty in an unmarked police car along with a sheriff’s deputy. Both men were in uniform. At approximately 11:37 PM, the officer noticed a truck parked in the small public parking lot of the Lakeside Commons shopping mall. There were no stores open at the time. The truck’s engine was running, and the truck was legally parked. The officer testified that he normally patrols the lot, and in the past he has observed criminal activity in the lot such as drinking, drugs, and lewdness.

The officer testified that he pulled his vehicle directly behind the passenger side of the truck and he did not activate his lights. The officer and the deputy exited their vehicle and approached the defendant’s driver side and passenger side windows respectively. Prior to approaching the vehicle, the officer had not received any complaints about the defendant’s vehicle, nor had he observed any bad driving or suspicious behavior. When the officer and the deputy walked up to the defendant’s windows, the windows were closed. The officer observed the defendant in the truck eating food from Taco Bell, and the officer knew that there was a taco bell nearby.

The officer then ordered the defendant to roll his window down and observed the defendant with glassy eyes and a strong smell of alcohol coming from his person. The officer then asked the defendant for identification. Shortly after this request, the officer asked that the defendant perform sobriety tests. The defendant failed these tests and he was subsequently arrested for DUI.

The defendant then filed a motion to suppress all evidence that was obtained after his illegal detention. At his motion to suppress, the above stated facts were presented, and the trial court agreed that the defendant was illegally detained and consequently granted his motion. Specifically, the court found that no reasonable person would have believed that he was free to leave the encounter with the police. The Commonwealth then filed a timely interlocutory appeal. On appeal, the Commonwealth argued that the interaction between the defendant and the officers was just a mere encounter and thus he was not illegally seized.

What is a Mere Encounter?

When a defendant argues a motion to suppress, the Commonwealth will frequently suggest that the motion should be denied because the interaction between the defendant and the police was just a “mere encounter.” Mere encounters are considered to be routine interactions between citizens and police. They do not require any level of suspicion and do not involve any official compulsion by the police. Additionally, a mere encounter is considered consensual, and thus a citizen is allowed to terminate this interaction whenever he or she so chooses. It is important to note that just because an officer asks for identification, it does not necessarily escalate a mere encounter into an investigatory detention. The crucial factor in determining whether the mere encounter has evolved into an investigatory stop (or an arrest) is whether the individual would have reasonably felt free to terminate the interaction between himself and the police. In other words, if a reasonable person would not have felt free to end the encounter, then it is not a mere encounter. The reason this significant is because the police need reasonable articulable suspicion that a defendant is engaged in criminal activity before they can stop them for an investigatory detention.

As such, when a defense attorney litigates a motion to suppress, they are often trying to elicit facts to suggest that a reasonable person would not have felt free to leave. Often times this involves soliciting facts such as: the placement of the officers, what they were wearing, whether their weapons were visible, how many officers were involved, the tone of questioning, whether they touched the defendant, whether he was in handcuffs, etc. At the conclusion of the hearing, the defense attorney will then argue that based on the facts of the particular case this was not a mere encounter, bur rather an investigatory detention and therefore the police needed reasonable suspicion to stop him in the first place.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. In its opinion, the trial court found several factors that escalated the interaction from a mere encounter to an investigatory detention. Specifically, the Superior Court found that the officers positioning themselves on both sides of the defendant’s vehicle and ordering him to roll his window down showed that this was not a mere encounter. Because the defendant was legally parked and not doing anything illegal, the officers lacked reasonable suspicion to stop him. Therefore, the Commonwealth will not able to use any of the evidence it obtained after illegally stopping the defendant in his trial, and the DUI charges should be dismissed.

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Read the Superior Court’s Opinion