Philadelphia Criminal Defense Blog

Zak Goldstein 2/29/20 Zak Goldstein 2/29/20

Philadelphia Criminal Defense Lawyer Zak Goldstein Wins Motion to Suppress in Gun and Drug Case

Gun Charges Defense Lawyer Zak Goldstein

Criminal defense attorney Zak T. Goldstein, Esquire recently won an important motion to suppress the physical evidence in the case of Commonwealth v. A.W. In A.W., the Philadelphia Police Department narcotics unit had recently received a complaint from a local city councilwoman’s office with information that drugs were being sold outside on a certain block. Officers from the Narcotics Field Unit quickly went to that block and set up a surveillance operation. They claimed that as they were watching the block, the defendant drove up and parked across the street from them. They were then able to see into his car and see that he had taken money out of his pocket and begun counting it. He put the money away, got out of the car, and started walking up the block. The defendant then made a phone call, turned and jogged in the opposite direction, and met up with another black male in the middle of the block. They shook hands and then walked into an unknown house out of view on that street.

After about ten minutes, the officers saw A.W. return to his car, but he was now carrying a plastic shopping bag into which they could not see. He got back in the car and drove away. Believing that a drug transaction had occurred, the surveillance officers radioed for backup officers to stop A.W. and search him and his vehicle. When backup officers pulled A.W. over, they found a gun in his waistband and a significant amount of marijuana and other drugs in the car. The Philadelphia police arrested A.W. and charged him with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, and numerous Violations of the Uniform Firearms Act including Section 6105 (felon in possession), Section 6106 (carrying a concealed firearm without a permit), and Section 6108 (carrying a firearm on the streets of Philadelphia). Given all of these charges, A.W. was potentially facing decades in prison.

Fortunately, A.W.’s family quickly retained Philadelphia Criminal Defense Attorney Zak Goldstein. Attorney Goldstein reviewed the police reports, defended A.W. at the preliminary hearing, and filed a motion to suppress the evidence, arguing that police had not actually seen any evidence of criminal activity which would justify the stop of A.W.’s vehicle and the search of his person and the car.

The Philadelphia Court of Common Pleas – Criminal Division held an evidentiary hearing on the motion to suppress. During the hearing, the officer testified to the above observations as well as his conclusion that he had witnessed a drug transaction due to the fact that A.W. was in a high crime area, was counting money, did not seem to know exactly where he was going prior to making the phone call, and went into a house and then came back with an opaque shopping bag that could contain drugs.

Attorney Goldstein successfully convinced the Court that all of these observations were equally consistent with totally legal behavior. There was simply nothing illegal about being in that area, counting some money, and then going into a house. The trial court agreed and granted the motion to suppress. Without the ability to introduce the drugs or gun into evidence, the Commonwealth was forced to move to dismiss the charges, and A.W. was quickly freed from custody with no conviction.

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Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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.

Zak Goldstein 2/28/20 Zak Goldstein 2/28/20

Philadelphia Criminal Defense Attorney Zak Goldstein Appears on Ask the Expert Radio Show

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire answers questions regarding Pennsylvania criminal procedure and what to do during a police encounter. The show will broadcast on Tuesday, March 3 at 10:30 am on Talk 860 AM.

Zak Goldstein 2/27/20 Zak Goldstein 2/27/20

Can a judge give a worse sentence if you file a motion to reconsider the sentence?

The Pennsylvania Superior Court has decided the case of Commonwealth v. Coleman, holding that a trial court may not sua sponte increase a defendant’s sentence after he or she files a post-sentence motion. This decision is significant because there is an all-too-common misconception among defense attorneys that if they file a post-sentence motion for a new trial or a reduced sentence, there is the possibility that the judge could retaliate by increasing the defendant’s sentence. As such, some attorneys are hesitant to file these motions for that incorrect reason. Hopefully, as a result of Coleman, this misconception will be put to rest.

Commonwealth v. Coleman

On August 7, 2017, the complainant was granted a temporary protection from abuse (“PFA”) order against her boyfriend, the defendant. When the PFA was issued, the defendant and the complainant were living together. Notably, the defendant was not on the lease of their shared residence nor did he ever possess a key.

Despite the PFA being issued, the defendant evaded attempts at being officially served with the PFA. Additionally, the defendant continued to go to their shared residence which resulted in the complainant staying at her grandmother’s home until the defendant could be officially served. On August 21, 2017, the defendant was finally served with the PFA order and an eviction notice. When he was served, he was hiding in the complainant’s daughter’s bedroom closet. The complainant was present when an officer offered to have him remove all of his property from the residence which the defendant declined. Because of the defendant’s actions, the complainant made a point to keep all of her windows and doors locked.

On August 25, 2017 at around 9:30 AM, the complainant was returning home when she noticed the defendant coming out of her house holding a bag. She would later testify that she did not observe any exterior sign of forced entry. However, she did testify that a few months prior to this she observed the defendant attempting to climb through her window. The complainant assumed that this is how the defendant entered her residence. She also would testify that she observed the internet box, which was in the defendant’s name, was missing from the house. At the time of this incident, the PFA was still active and thus the defendant did not have permission to be inside the home. The defendant would later testify that he and the complainant had a conversation where she gave him permission to enter the residence.

On August 30, 2017, the complainant went to the defendant’s new residence at his request. When she arrived, she noticed that the defendant’s new girlfriend was living at this residence. The complainant was not let in, but for unknown reasons the police were subsequently called. As a result, the defendant was subsequently arrested and charged with burglary, criminal trespass, criminal mischief, and contempt for violating the PFA order for his actions on August 25, 2017. The defendant elected to have a bench trial where the above testimony was presented and he was found guilty of burglary, criminal trespass, and contempt.

The trial court then conducted a subsequent sentencing hearing on August 23, 2018. At that hearing, it was determined that the defendant had a prior record score of zero and an offense gravity score of seven, which set the sentencing guidelines to 6 to 14 months’ incarceration, plus or minus 6 months. The trial court stated that it had reviewed the pre-sentence investigation report and the text messages that were provided to the court. The defendant’s attorney informed the trial court that the defendant was employed and no longer involved with the complainant. The defendant’s new girlfriend also testified on the defendant’s behalf.

The Commonwealth requested that the defendant receive a sentence of 6 ½ to 23 months’ incarceration for his actions. After arguments, the trial court elected to sentence the defendant to 12 to 24 months of incarceration which was to be followed by two years of probation. In its rationale, the trial court stated that the defendant “tortured” the complainant based on its review of the text messages.

The defendant then filed a post-sentence motion arguing that the court should not have sentenced him to a sentence greater than what was requested by the Commonwealth. In his motion, the defendant specifically referenced the trial court’s comment that the defendant “tortured” the complainant. A hearing was held on August 30, 2018. At that hearing, the defendant rested on his motion and requested that the trial court impose a county sentence.

The trial court then stated that it had reviewed the defendant’s motion and that even though it mentioned the word “torture” during the defendant’s sentencing, it was not a factor in the defendant’s sentence. Also during this hearing, it became known that the defendant had re-violated the PFA. In response to questioning by the trial court, the defendant stated that “[he] didn’t mean to violate the PFA.” It is worth noting that at this hearing, the Commonwealth did not request a modification of the defendant’s sentence nor did it file its own post-sentence motion. Nonetheless, the trial court re-sentenced the defendant to an increased sentence of 14 to 18 months of incarceration, followed by four years of probation. The defendant then filed another post-sentence motion which was denied and then he subsequently filed a timely appeal.

What is a Post-Sentence Motion?

Post-Sentence motions are an incredibly important, and often forgotten, part of criminal defense practice. A post-sentence motion is a request to do any of the following: modify one’s sentence, request a new trial (for a variety of reasons including: the acquisition of newly discovered evidence, prosecutor’s comments during closing argument, challenging the weight of the evidence, etc.), request a motion for judgment of acquittal, and challenge one’s guilty plea. As one can see, post-sentence motions gives the trial court an opportunity to correct a past wrong by either the jury or the trial court itself.

It is worth noting that these motions are frequently denied. However, that does not take away from their importance. They are incredibly important because if you do not file them on time, you can inadvertently waive certain issues for appeal. For example, if you do not file a post-sentence motion, you are not able to challenge the weight of the evidence or the discretionary aspects of an appeal. Therefore, it is imperative that your attorney files a post-sentence motion after your sentencing if you believe that you received an unduly harsh sentence or if you believe that there were serious issues with the evidence that was presented at your trial.

The Superior Court’s Decision

The Superior Court granted the defendant’s appeal. In its decision, the Superior Court relied on prior case law that stated that in order for a defendant’s sentence to be increased after a post-sentence motion is filed, the Commonwealth must also have filed a post-sentence motion. In other words, a trial court is not permitted to increase a defendant’s sentence unless the Commonwealth has filed a post-sentence motion specifically requesting a harsher sentence. Therefore, a defendant cannot be punished simply because he files a post-sentence motion requesting a more lenient sentence. Because the Commonwealth did not file a post-sentence motion in this case, the defendant’s current sentence will be vacated and he will receive his original sentence.

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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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