Philadelphia Criminal Defense Blog

Zak Goldstein 11/28/20 Zak Goldstein 11/28/20

How do I get my stuff back from the police in PA?

Petitions for Return of Property in Pennsylvania Criminal Cases

Philadelphia Criminal Defense Lawyer Zak Goldstein

A common question that we receive from clients who have been charged with crimes or had their belongings seized by the police is how to get those items back. In some cases, it is possible to get your things back from the government by filing a Petition for Return of Property pursuant to Pennsylvania Rule of Criminal Procedure 588. Whether or not and when you can get your things back depends on the nature of the item and the status of the criminal case, but in most cases where the item itself is not contraband or stolen, you may be able to seek its return either while the case is pending or within thirty days from the end of the case.

Pennsylvania Rule of Criminal Procedure 588

Pa.R.Crim.P. 588 governs the return of property in criminal court. The rule provides:

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

This means that a petition may be filed in the Court of Common Pleas where the case is or was being heard seeking the return of property. For example, if the police took your things while investigating the case and refuse to give them back despite them having no evidentiary value, you may be able to file a petition seeking an order from the court directing the police to return the items. If the items were seized during an illegal search or seizure, you may also be able to combine the motion for the return of your items with a motion to suppress.

How long do I have to file a petition for return of property?

The Pennsylvania Superior Court recently decided the case of Commonwealth v. Caviness, holding that a petition for return of property associated with a criminal case must be filed within thirty days of the conclusion of the case.

In Caviness, the defendant’s wife filed a motion for the return of some family photos which were on electronic devices that had been seized from the defendant. The petition was filed more than thirty days after the case had concluded, and the defendant had been convicted in the case. The Commonwealth opposed the petition, arguing that the family photos were on electronic devices which contained other contraband and that it did not have the resources to sort through the device to ensure that no contraband would be returned with the family photos. The trial court accepted the Commonwealth’s position and denied the motion.

The defendant’s wife appealed, arguing that the Commonwealth should be required to return all of the photos. The Superior Court rejected the wife’s argument on appeal, finding that the trial court lacked jurisdiction to entertain the motion under Rule 588 because more than thirty days had passed from the defendant’s sentencing. Therefore, the trial court no longer had jurisdiction over the case.

Thus, in order to file a motion with the criminal court, the motion must be filed either while the case is pending or within thirty days from the conclusion of the case. It is important to note that it may also be possible to seek the return of property in Commonwealth Court and that you may have longer to do so, but that process can be more complicated than filing the petition for return of property in criminal court.

The Commonwealth will also sometimes agree to allow the late filing of a petition (a nunc pro tunc petition) if there is a good reason for the delay.

What types of property can I get back?

Generally, you can seek the return of anything that is not contraband. Obviously, the law does not require the police to return drugs, illegal guns, or other items that were used to commit a crime even if the case is over or the search was conducted illegally. However, if the items no longer have evidentiary value or it can be shown that the police seized the items in an unconstitutional manner, then it may be possible to seek the return of property like cars, cash, and other valuable items.

The timing of such a petition depends on the nature of the case and status of a case. For example, it may not be possible to get property back right away because the police may need to process the items as evidence. But once that process has finished, it may be possible to seek the return of the property even if the charges are still pending. This frequently happens in cases involving cars - the police may want to dust the car for fingerprints or swab it for DNA, and that process may take a few days or even weeks. Once it is over, however, the police should return the car as they are unlikely to introduce the car itself at trial. If they refuse, it may be possible to obtain a court order directing them to do so.

How do I file the Petition?

In Philadelphia, a Petition for Return of Property must be filed in person on the second floor of the Criminal Justice center. It generally must describe the property, the circumstances under which it was seized, and it must also establish proof of ownership. In general, it is important to discuss the situation with your criminal defense lawyer prior to filing anything in court as there may be reasons why it may make sense to wait to file the petition until the case is over. Either way, the police cannot simply keep your things just because they want to, and a Philadelphia criminal defense lawyer may be able to help you get your property back.

Is a return of property different from a forfeiture?

Petitions for return of property are often closely related to forfeiture proceedings. In many cases, the Commonwealth initiates the litigation regarding whether property should be returned by filing a forfeiture petition. For example, if the police seize a large amount of cash while making an arrest for possession with the intent to deliver, the police will typically keep the cash. The prosecution will then file a forfeiture petition asking a judge to order that the Commonwealth should keep the money. In this situation, it often makes sense to move to stay the forfeiture proceedings until the criminal case is resolved. If the defendant wins the case or wins a motion to suppress, the government may be required to return the money. The main difference in this situation is that the Commonwealth files the petition instead of the defendant, and it usually makes sense to wait to resolve the forfeiture issue until the criminal case is over.

Criminal Defense Lawyers in Philadelphia

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Zak Goldstein 11/12/20 Zak Goldstein 11/12/20

PA Superior Court Allows Individual Challenges to PA's Sex Offender Registration Statute

The Pennsylvania Superior Court has decided the case of Commonwealth v. Commonwealth v. Muhammad, holding that, in some cases, SORNA creates an unconstitutional presumption that a defendant will commit future sex offenses. This is a huge decision because it may provide individual defendants with an opportunity to challenge their registration requirements even if they are convicted of a sex crime. This is particularly important because some crimes require that, if convicted, a defendant register under Pennsylvania’s Megan’s Law even when the crime was not sexual in nature. In Muhammad, the Court found that the individual defendant should not have been required to register a a sex offender despite her SORNA conviction because she had no prior record, was unlikely to re-offend, and was convicted of interfering with the custody of a minor, which is not actually a sex crime.

Commonwealth v. Muhammad

The defendant’s sister and her former partner shared custody of their three-year-old child. In 2014, pursuant to a valid custody order, the former partner was to have primary physical custody of the child and the defendant’s sister was to have custody of her on the weekends. Both parties had written notice that if any party felt that another party had violated the order, they were to file a motion in court.

The former partner was incarcerated between April 2015 and June 2016. During this time, the child was in the care of the defendant’s sister. After she was released from prison, the former partner contacted the defendant’s sister so that she could see the child and spend time with him. Upon agreement, the former partner picked up the child in Philadelphia. There was also an agreement that she would return him that following Sunday. While the child was in her care, the former partner noticed that the child had bruises. As such, she decided that she would not return the child to the defendant’s sister.

On that Monday, the defendant’s sister arrived at the former partner’s house in Reading, Pennsylvania. She was accompanied by the defendant and her friend. The defendant’s sister grabbed the child and tried to put him in the vehicle. A struggle ensued with other members of the former partner’s family. Eventually the defendant drove away with her sister, the child, and the former partner’s 17-year-old daughter. While driving, the 17-year-old daughter began yelling for help. The defendant told the 17-year-old daughter that she was not going home.

The Reading Police were called and they attempted to call the defendant as she was driving away. Eventually, an officer was able to speak with the defendant and he told her to bring the children back home. The defendant told the officer that she was not going to do that. She would also not let the 17-year-old daughter speak to the police either. Eventually, the defendant drove to the Chestnut Hill train station where they gave the three-year-old child to the defendant’s mother and sister. The defendant then drove to the bus station in Philadelphia. The defendant bought the 17-year-old a bus ticket back to Reading. The 17-year-old then borrowed a stranger’s phone and called the former partner and told her what happened. The Reading police arrived in Philadelphia and drove the 17-year-old home. The next day, the three-year-old child was returned to the former partner.

The defendant was subsequently arrested and charged with interference with custody of children, false imprisonment, unlawful restraint, and conspiracy to commit these offenses. The defendant elected to proceed by bench trial where she was subsequently found guilty of all charges. Unfortunately, because of her conviction for interference with the custody of children, she was required to register under SORNA despite the fact that she had not even committed a sex crime.

Prior to sentencing, the defendant filed a motion raising a series of constitutional challenges to SORNA. The trial court denied the defendant’s motion. She was subsequently sentenced to three to twenty-three months’ imprisonment and was forced to register under SORNA. Notably, at her sentencing, the trial court found that this was the defendant’s first contact with the criminal justice system and this incident was “totally out of character for her.”

The defendant then filed a timely post-sentence motions which were denied. She then filed a timely appeal. On appeal, she argued that SORNA was unconstitutional as it created an irrebuttable presumption that those who are convicted of the enumerated offenses “pose a high risk of committing additional sexual offenses.” The defendant further argued that this deprives individuals like her of the fundamental right to reputation.

The Superior Court’s Decision

The Superior Court reversed the lower court and held that the defendant did not have to register under SORNA. The Court found that the defendant’s appeal amounted to an “irrebuttable presumption” challenge. An irrebuttable presumption is unconstitutional when it 1) encroaches on an interested protected by the due process clause, 2) the presumption is not universally true, and 3) reasonable alternative means exist for ascertaining the presumed fact. The Superior Court then applied this test to the specific facts of the defendant’s case.

In doing so, the Superior Court found that “SORNA encroaches on a due process right of [the defendant].” According to the Superior Court, registering as a sex offender creates a presumption that the defendant is a dangerous adult who is likely to commit further sexual offenses. This designation would affect her future employment prospects and limit her ability to obtain education and housing. Consequently, she would have a difficult time functioning as a productive member of society. Further, the Superior Court also stated that the current SORNA statute fails to provide the defendant with a meaningful opportunity to rebut the claim that she is a danger to reoffend.

The Superior Court then reviewed the record to see if whether SORNA’s presumption that sexual offenders present a high risk of recidivating was applicable for the defendant. In this case, there was no evidence that the defendant intended to commit any sexual acts towards anyone. Further, this was her first conviction for any crime. As the trial court stated during her sentencing hearing, this was “out of character” for the defendant. Therefore, there was no evidence to suggest that she was at a high risk to commit any sexual offenses.

Finally, the Superior Court found that there are other reasonable alternatives exist to determine whether someone is at risk of being a sex offender. According to the Superior Court, the Commonwealth could have utilized the Sexual Offenders Assessment Board to determine whether the defendant was at risk for engaging in sexual misconduct. They did not do that in this case. Therefore, the Superior Court found that the facts of the defendant’s case satisfy all the requirements that she was unconstitutionally presumed to be a sex offender. Therefore, the order that she must comply with SORNA is vacated and she will no longer have to register as a sex offender.

It is not totally clear yet what the long term effects of this ruling will be or if it will be appealed to the Pennsylvania Supreme Court. However, based on this ruling, it may be possible to challenge the registration requirements at sentencing for a defendant who has been convicted of a SORNA offense.

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Zak Goldstein 11/10/20 Zak Goldstein 11/10/20

Challenging a State Court Conviction in Federal Court in Pennsylvania

28 U.S. Code § 2254 provides one last chance for appealing a wrongful state court conviction by filing a petition in federal court. This type of petition would typically be filed once all other appeals have been exhausted. This means we may be able to help you even if the appeals courts have upheld a conviction on direct appeal and a post-conviction relief act petition filed in state court has been denied.

A criminal defendant who received the ineffective assistance of counsel in their state court trial, on direct appeal, or in the first round of state court PCRA proceedings may be eligible for relief in federal court. It is important to note that federal habeas petitions are extremely complicated and that the deadlines for filing them are very strict, so it is important to consult with an experienced defense attorney as soon as possible if you are considering filing one for your case. This article does not discuss all of the potential issues that a defendant may face in filing a successful federal habeas petition.

Learn more

Zak Goldstein 10/29/20 Zak Goldstein 10/29/20

PA Supreme Court: Police Can't Search Your Phone Just Because You're Near Drugs and Guns

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s proximity to drugs and guns is not sufficient probable cause to obtain a search warrant for a defendant’s cell phone. This decision is significant because cell phones often contain very private and intimate details about our lives. Additionally, they can also obtain very incriminating details that prosecutors will use against defendants at trial. Thankfully, Johnson places a higher burden on the government to access these details, and so this is a big win for both privacy advocates and criminal defendants.

Commonwealth v. Johnson

In 2014, Pittsburgh police officers received a 911 call from an anonymous caller. The call stated that shots were fired inside an apartment. The officers subsequently went to this apartment and as they approached the apartment, they smelled a strong odor of burning marijuana coming from inside of the apartment and could hear people talking, too. The officers then knocked on the door and announced their presence. They continued knocking for several minutes with no response.

Eventually, a woman opened the door and the officers entered the apartment and conducted a protective sweep and detained five individuals, one of them being the defendant. During their sweep, the officers observed in plain view two bricks of heroin on a shelf. They also recovered three stolen firearms hidden together above the apartment’s hot water tank. The five detained individuals were placed under arrest. Officers then secured the apartment and obtained a search warrant. When they searched the defendant, they found two cell phones on his person. During their search of the apartment, the officers recovered an additional 717 bags of heroin and three cell phones. Four months after they recovered the cell phones, the officers requested and obtained an additional search warrant for the cell phones that they recovered, including the phones found on the defendant.

The defendant was charged with Possession with the Intent to Deliver (“PWID”), VUFA § 6105, Knowing and Intentional Possession of a Controlled Substance (“K/I”), and Small Amount of Marijuana (“SAM”). The defendant then filed a motion to suppress the drugs, cell phones, and firearms that were recovered in the apartment because he argued they were illegally obtained. This motion was denied. After this motion was litigated, the Commonwealth turned over additional discovery to the defendant. Specifically, they provided him with text messages that were recovered from his phone that “referenced stamp bags of heroin which had the same stamp as [the] bags recovered from the apartment.”

The defendant filed a subsequent motion to suppress these text messages, arguing that the search warrant should never have been granted given that the officers lacked probable cause to search his phone. The defendant argued that the police were going through his phone to figure out who the guns and drugs belonged to and that this was an improper attempt to ascertain that information. Unfortunately for the defendant, the suppression court did not agree with him and denied this motion to suppress too.

The defendant then elected to proceed by a bench trial. He was found guilty of PWID and K/I, but was found not guilty of VUFA 6105, and SAM. He then filed an appeal with the Pennsylvania Superior Court which was denied. According to the Superior Court, the fact that the defendant “was found ‘in close proximity to firearms and evidence of the distribution of heroin’ established a probable cause to believe more evidence relating to narcotics distribution would be found on his cell phone.” The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court who agreed to hear his case. For purposes of this blog, only the search warrant pertaining to the defendant’s cell phones will be addressed.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and remanded the defendant’s case for a new trial. In its decision, the Pennsylvania Supreme Court rejected the notion that because there was probable cause to arrest the defendant for constructively possessing the drugs and guns that that there was also probable cause to search his cell phone for evidence of those same offenses. The Court stated that there must be a link or some facts to show that the cell phone contains evidence of criminality.

In the instant case, the Court found that there was no such link. There was nothing in the affidavit to suggest that the defendant was personally in possession of the drugs or that he was even aware they were in the apartment. Additionally, because the police originally went to the apartment on the basis of an alleged emergency, the police did not have the support of a long-term drug trafficking investigation to bolster their affidavit. The only thing that the affidavit of probable cause established was that the defendant was present in a place where illegal contraband happened to be found. This was not sufficient to get a search warrant for a cell phone. Therefore, the defendant should receive a new trial without the illegally seized evidence.

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