Philadelphia Criminal Defense Blog

Zak Goldstein 3/10/23 Zak Goldstein 3/10/23

PA Superior Court: Bad Info From Third Party in Search Warrant Does Not Invalidate Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Adorno, holding that a search warrant is still valid even where the warrant contains incorrect information that has been provided by a third party. In this case, the Court found that the police relied on the information provided by a third party in good faith, so they had probable cause for the warrant. The fact that the information turned out to be wrong did not require suppression of the evidence that they later found.

Commonwealth v. Adorno

In this case, police officers discovered a Facebook Live video that showed a user named “Zay-Yaho” dancing while holding a gun and drugs. They identified the user as the defendant and determined that he had a criminal record which prohibited him from possessing a firearm. The officers learned that he lived at a certain address in Lackawanna County, Pennsylvania. They interviewed the landlord of the apartment building, and the landlord confirmed that the defendant lived there. The landlord also told them that the location in the video looked like the suspected address. The police then obtained a search warrant for that address. They executed the warrant, and they found three guns and prescription medication.

The Motion to Suppress

After finding the contraband, the police arrested the defendant. The defense filed a motion to suppress the evidence, and the trial court held a hearing on the motion to suppress. In the motion, the defense alleged that the police conducted a search without probable cause, that the search was based on incorrect information, and that the search exceeded the scope of the search warrant. Essentially, the defendant argued that the evidence should be suppressed because the video did not actually show the location that the police searched. At the hearing on the motion, the officers agreed that there were noticeable differences between the walls and layout of the home that they searched and the home in the Facebook video. Similarly, a friend of the defendant’s testified that the location in the video was her house, not the defendant’s apartment. She had not been aware of the video.

The trial court granted the motion to suppress, finding that police had searched the wrong location because the defendant’s apartment, which was the subject of the warrant, was not the location in the video. The Commonwealth appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the Commonwealth argued that the police properly relied on a validly issued search warrant and that the fact that the warrant turned out to contain incorrect information did not render it invalid. The Superior Court agreed. First, the Court found that there was a nexus between the crime and a home that would justify the search of a home because the video showed the gun in a home. Where a defendant commits a crime on the street, police may not have probable cause to search a come because the police cannot just assume a defendant will store evidence of the crime there. But where the crime is committed in a home, the case for searching a home is stronger.

Second, the Court found the warrant to be valid despite the factual error regarding the location depicted in the video. In order for a court to find a search warrant invalid due to a factual error, the defense must show that the police intentionally included false information or included false information with a reckless disregard for the truth. Here, the defense did not even allege that the police had acted in bad faith by either lying or including the information with a reckless disregard for the truth. Accordingly, the defense failed to meet its burden. This type of motion is often called a Franks motion. Here, the defense had argued only that the information was wrong, but showing that a warrant contains incorrect information is not enough to invalidate a warrant.

Therefore, the Superior Court reversed the order granting the motion to suppress. The defendant will have to face trial in the Court of Common Pleas.

Facing criminal charges? We can help.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

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. We have also won criminal appeals and PCRAs in state and federal court. 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 2/17/23 Zak Goldstein 2/17/23

PA Superior Court: Police May Conduct Warrantless Inventory Search of Car if Necessary

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thompson. The Court held that the recent decision in Commonwealth v. Alexander, in which the Pennsylvania Supreme Court reinstated the requirement that police get a search warrant before searching a car, did not eliminate the inventory search exception to the warrant requirement. Under Thompson, when the requirements of the inventory search exception are met, the police may search a car without a warrant. The Court left open the issue of whether the exception may apply when the owner of the vehicle could potentially make other arrangements for the safekeeping of their property.

The Facts of Commonwealth v. Thompson

On July 1, 2020, police and medical personnel were dispatched to an AAMCO station for a report of an unconscious person in a vehicle. When the Marple Township Police Department arrived, EMT personnel were speaking to the defendant, whose vehicle was blocking two or three other cars. Police spoke to the defendant and concluded that he appeared lethargic, stumbled as he walked, and was slurring his speech. Police determined that he was incapable of operating the vehicle, and they decided to tow the car. Per departmental policy, they performed an inventory search of the vehicle to record its contents, and of course, they found a firearm. They charged the defendant with persons not to possess a firearm (VUFA § 6105).

The defendant moved to suppress the firearm, arguing that the police were required to obtain a search warrant prior to searching the vehicle. The trial court denied the motion to suppress after concluding that the police properly conducted an inventory search of the car which did not require a search warrant. The defendant was then found guilty of the charges, and he appealed.

The Superior Court Appeal

On appeal, the defendant argued that the Court’s decision in Alexander requiring a search warrant for the search of a car eliminated the inventory search exception. In response, the Commonwealth argued that Commonwealth v. Alexander dealt only with searches for evidence of a crime, and therefore it did not have any relevance in whether the inventory search remains a proper exception to the warrant requirement when dealing with an automobile.

What is an inventory search?

When the police have to tow a vehicle, they are permitted to conduct an inventory search of the vehicle. An inventory search is permissible when 1) the police have acted lawfully in impounding the vehicle and 2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle. Often, the challenge to an inventory search will involve challenging whether police really needed to tow the vehicle or whether they could have safely parked it or released it to someone else. In this case, the question was whether the inventory search still applied post-Alexander.

The Superior Court’s Decision

The Superior Court affirmed the denial of the motion to suppress. The court recognized that the law contains many exceptions to the warrant requirement. In other words, many searches may be allowed even where the police do not get a search warrant. Some examples include a search due to exigent circumstances, a search for weapons for officer safety, a search where contraband is in plain view, and in this case, the inventory search exception.

Here, the court concluded that Alexander did not eliminate the other exceptions that applied prior to the decision. Instead, it only held that where police are going to search a car for evidence of a crime, they must get a search warrant or have exigent circumstances and probable cause. As an inventory search theoretically has nothing to do with searching for contraband or evidence of a crime, Alexander did not make that type of search illegal.

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. An inventory search falls under “community caretaking” and thus does not require any showing of probable cause or reasonable suspicion at all. Therefore, the police were not required to have probable cause, and they were allowed to search the vehicle in order to ensure that it did not contain anything dangerous and in order to protect the defendant’s belongings.

The Superior Court, however, did leave the door open to the idea that an owner could object to the inventory search or make other arrangements for moving the vehicle. This is based on the theory that inventory searches are done on the behalf of the property owner, to protect it while in custody, and shield police from disputes or claims of lost or stolen property. There could also be privacy interests at stake, in which the individual’s privacy interest outweighs the government’s interests. These arguments were not raised in this appeal, so the Superior Court did not rule on them. Obviously, the inventory search exception is ripe for abuse - police who want to search a vehicle but who don’t have probable cause for a search warrant can simply claim that it was necessary to tow the vehicle for some reason, and then they are permitted to conduct a warrantless search. Therefore, as previously mentioned, motions to suppress in these cases often involve challenging whether it was really necessary to tow the vehicle.

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Zak Goldstein 2/14/23 Zak Goldstein 2/14/23

Not Guilty: Full Acquittal for Man Accused of Threatening Off Duty Police Officer

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal on charges of terroristic threats and harassment for a client who had been charged with threatening an off-duty police officer. In the case of Commonwealth v. KO, the officer claimed that he was walking his dog in a park in Northeast Philadelphia when KO’s dog ran up to the officer’s dog while not on a leash. KO came over to get his dog, and the officer told him to put the dog on a leash. KO did so, but the officer claimed that KO said he would shoot the officer and his dog because the officer suggested that he might let his dog off the leash to bite KO’s dog.

The officer testified that not only did KO threaten to shoot him and his dog once, but he actually made the comment multiple times and put his hand in his jacket as if he had a gun before putting the dog on a leash and walking off. The officer got KO’s license plate number when KO left the park, and he later reported the incident to a detective. The detectives filed charges of terroristic threats and harassment against KO.

KO retained Attorney Goldstein, and Attorney Goldstein obtained a full acquittal at the subsequent Philadelphia Municipal Court trial. At trial, Attorney Goldstein cross-examined the officer on the fact that he never actually saw a gun and that both men were just yelling at each other during the stressful situation of getting the dog back on the leash. Attorney Goldstein then called character witnesses as well as KO to testify that KO had only said something to the officer because the officer had threatened him first and in fact had a gun, whereas KO did not.

The Municipal Court Judge promptly found KO not guilty of all charges, and the charges can now be expunged. As KO holds a professional license and a job that requires a background check, the ability to obtain a full acquittal and an expungement was critical for him. He was able to do both.

Ultimately, the terroristic threats statute appears to be very broad on its face. It covers far more than terrorism and applies to anything that appears to be a threat. The statute provides:

(a) Offense defined.--A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize another;
(2) cause evacuation of a building, place of assembly or facility of public transportation; or
(3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

Terroristic threats is a misdemeanor of the first degree which carries up to five years in prison and can result in a permanent disability from possessing a firearm under federal law. At the same time, the statute requires not just a threat but the actual intent to terrorize. In numerous cases, the appellate courts in Pennsylvania have held that threatening words said during a transitory moment of anger as part of an argument do not qualify as a terroristic threat under the law. Accordingly, even if KO had said what the officer alleged, the judge properly applied the law in acquitting KO.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended clients and obtained new trials after conviction in cases involving charges as serious as Aggravated Assault, Rape, Murder, and Fraud. We have also won criminal appeals and post-conviction relief in state and federal court. At the same time, our extensive experience in the Philadelphia criminal justice system and skills in the courtroom often allow us to obtain outcomes like this one even in relatively less serious cases in the Philadelphia Municipal Court. We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with a defense attorney today.

Zak Goldstein 2/8/23 Zak Goldstein 2/8/23

Federal Sentencing Update: United States Sentencing Commission Proposes Limiting Use of Acquitted Conduct at Sentencing

The United States Sentencing Commission recently proposed a major change to federal sentencing law, indicating that it may bar the use of acquitted conduct at sentencing where defendants have been acquitted of some charges but convicted of others. This would represent a major change in federal sentencing law. Currently, federal judges may sentence criminal defendants based on conduct for which the jury acquitted them. This is an incredibly unfair practice as it means that a defendant may go to trial on two charges, get acquitted by the jury of the more serious charge when the jury finds that the government could not prove the offense beyond a reasonable doubt, and then still be sentenced as if they had been convicted of the more serious charge.

Acquitted conduct is an offense for which the defendant was not convicted. For example, in many cases, defendant could be charged with guns and drugs at the same time. The penalties for federal drug offenses can be draconian on their own, but the presence or use of a firearm during the commission of the drug offense can result in mandatory minimums and federal sentencing guidelines that are exponentially higher. Federal judges take the guidelines incredibly seriously, so the guideline calculation is extremely important. Currently, there is nothing preventing federal judges from treating a defendant who has been convicted of a drug offense but acquitted of the firearm offense the same at sentencing as if the defendant had been convicted of both offenses. This can lead to a drastically longer sentence even though the jury partially acquitted. Federal judges also may often consider conduct for which the defendant was never charged.

Similar sentencing issues can arise in white collar cases, as well. For example, where a jury acquits a defendant of some counts related to a fraud scheme but convicts on others, the judge can currently sentence based on dollar amounts involved in the counts for which the defendant was acquitted. Because the loss amount involved is often the most important factor in the federal sentencing guideline calculation, this can have a significant impact on the resulting sentence.

Numerous defendants have attempted to challenge this practice as violating the Constitution in the United States Supreme Court, but the Supreme Court has rejected those challenges. The Supreme Court concluded in United States v. Watts that “a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge.” Some of the recently confirmed justices have previously signaled that they may reconsider that ruling, but so far, the Court has not accepted any petitions for certiorari on the issue.

The Sentencing Commission, however, could avoid the need for court action should it approve the proposed change. The proposed change would preclude courts from being able to consider acquitted conduct at sentenicng. The Sentencing Commission was created by Congress for the purpose of establishing the rules by which the guidelines are calculated. Ultimately, the guidelines produce a recommended sentencing range for the judge to consider when imposing sentencing. Until recently, the guideline range was actually mandatory and a judge could not sentence below the guidelines under most circumstances. The guidelines are no longer mandatory, but they are still extremely important.

The downside of the change being approved by the Sentencing Commission rather than the Court is that the change would almost certainly not be retroactive. However, this is an important change that strengthens the presumption of innocence and holds the government to its burden of proving a defendant guilty beyond a reasonable doubt. Criminal defendants should not be sentenced for things that the jury found that they did not do.

This change would only affect federal sentencing proceedings. It would not alter the current practice in the Pennsylvania state courts. The Pennsylvania state courts also use sentencing guidelines, but the guidelines are not quite as important as they are in federal court. The state courts are far more likely to depart from them. Further, it is relatively rare for courts to consider acquitted conduct or conduct for which a defendant was not charged in a state court sentencing proceeding. It is not necessarily prohibited at all times, but state court judges almost always agree that they should not hold alleged offenses for which a defendant was acquitted against them.