An Award-Winning Philadelphia Drug Lawyer Fighting For You
Fighting Drug Cases in PA and NJ
If you have been arrested on drug charges such as Possession of a Controlled Substance, you need the advice of one of our experienced Philadelphia drug possession lawyers immediately. We offer a free, 15-minute criminal defense strategy session to anyone who is facing criminal charges in Pennsylvania or New Jersey. Call us at 267-225-2545 to discuss your case and how we can help. We handle all types of drug cases ranging from misdemeanors like Simple Possession of a controlled substance ("K&I), Possession with the Intent to Deliver ("PWID"), Criminal Use of a Communications Facility ("CUCF"), Possession of a Small Amount of Marijuana ("SAM"), cases involving confidential informants or sales to undercover narcotics officers, drug trafficking, and more. Our talented, top-rated defense attorneys have won motions to suppress the evidence and prevailed in even the toughest cases at preliminary hearing and trial. We have won pre-trial motions to suppress even in cases involving large quantities of narcotics and firearms.
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Types of Drug Crimes
Possession with the Intent to Deliver
If you are caught in possession of illegal drugs, there are a number of potential felony and misdemeanor charges you could face. First and foremost, you could be charged with the Possession with the Intent to Deliver of a controlled substance. In Pennsylvania, PWID is a felony regardless of the type of a substance sold. A first-offense felony charge of selling marijuana will be heard in the Philadelphia Municipal Court, while a drug delivery charge for any other controlled substance will proceed to trial in the Court of Common Pleas. This is because the maximum penalty for a first offense marijuana delivery charge is five years in prison, while the maximum penalties for selling other controlled substances such as crack cocaine, heroin, many types of pills, and PCP are much higher.
A Possession With the Intent to Deliver charge requires the prosecutor to show not only that you had actual or constructive possession of a controlled substance, but also that you either sold or intended to sell the controlled substance to someone. Therefore, the prosecutor will typically charge PWID either when the police will testify that they observed narcotics transactions or the narcotics were found in quantities and with packaging or scales which indicate that they were not for personal use.
It is not always necessary for the police to actually observe a drug sale in order to charge felony Possession with the Intent to Deliver. Even where the prosecution cannot prove that the controlled substances were ever actually sold, the Assistant District Attorney may use an expert witness in an attempt to prove that the quantity of the narcotics or they way in which they were packaged shows that they could not have been for personal use. For example, the police expert could testify that the fact that the defendant possessed a scale along with new and unused packaging indicates that the defendant intended to package and sell the controlled substance.
Knowing and Intentional Possession of a Controlled Substance
Second, if the police did not observe actual sales and they recovered only a relatively small amount of drugs, you could be charged with a misdemeanor such as Knowing and Intentional Possession of a Controlled Substance ("K&I"). K&I, also known as Simple Possession, requires the Commonwealth to show only that you were in possession of an illegal drug or a controlled substance without a prescription. Click here to learn more about Knowing and Intentional Possession of a Controlled Substance.
Criminal Use of a Communications Facility
Third, if a cell phone was involved in an illegal transaction, you could be charged with Criminal Use of a Communications Facility. Criminal Use of a Communications Facility ("CUCF") is a felony of the third degree which can often have more serious consequences than the actual sale of the controlled substance. Because Criminal Use of a Communications Facility is a felony of the third degree instead of an ungraded misdemeanor, a CUCF charge along with a first-offense marijuana PWID could result in the case being heard in the Court of Common Pleas instead of the Municipal Court. This is because the Philadelphia Municipal Court only has jurisdiction over any offense punishable by up to five years in jail, and a felony of the third degree has a maximum possible sentence of seven years.
Small Amount of Marijuana
Finally, there is a specific charge in Pennsylvania which applies to possession of a small amount of marijuana. If the accused possessed less than thirty grams of marijuana and there is no indication that the marijuana was sold or going to be sold, then the prosecution must charge the more specific offense of Possession of a Small Amount of Marijuana. Although the simple possession statute would seemingly apply to both marijuana and other substances, the Superior Court of Pennsylvania ruled (in a case handled by Attorney Goldstein at the trial level) that the small amount of marijuana statute is more specific, and therefore the prosecution cannot obtain a conviction for the more serious charge of Simple Possession under those circumstances.
The small amount of marijuana offense is less serious than felony Possession with the Intent to Deliver or even misdemeanor simple possession because the maximum possible penalty is 30 days in jail or 30 days of probation. Additionally, it generally looks better on criminal record because it shows that the defendant was convicted only of possessing a small amount of marijuana, which is generally considered less serious than other substances. However, there are serious collateral consequences which should be fully understood by the defendant before accepting a plea to or conviction for this offense.
Recently, the Philadelphia District Attorney's Office announced that it would stop prosecuting Small Amount of Marijuana cases in which the defendant is accused only of possessing the marijuana for personal use. The DA's Office will continue to prosecute marijuana distribution cases, but they have begun to voluntarily dismiss some of these SAM cases. Pennsylvania state law, however, still permits police to make arrests for possession of marijuana, and there is no law requiring the District Attorney to drop these prosecutions. The law also still allows police to search a person or car based on the odor of marijuana. It remains to be seen whether the DA's Office will consistently apply this policy.
Citations for Marijuana Possession in Philadelphia
Many people are often surprised when they are arrested on marijuana charges because they believe that marijuana has been decriminalized in Philadelphia. However, marijuana is still illegal both in Philadelphia and in Pennsylvania. Philadelphia did recently pass a city ordinance which allows the Philadelphia Police to simply seize the marijuana and issue civil citations for low-level marijuana offenses, but the police have the power to make an arrest and bring formal criminal charges under state law.
If the police choose to issue a ticket, then the ticket will result in a $25 fine for simply possessing 30 grams or less of marijuana and a $100 fine for smoking marijuana in public. The ticket will not show up on a criminal background check. The police are more likely to bring actual criminal charges for marijuana when the police observe the defendant buying the marijuana because it may be helpful to them in making the case against the seller. It remains a felony to sell marijuana, although it is only a misdemeanor in Pennsylvania (but not under federal law) to give less than 30 grams of marijuana to someone for free. Finally, even though the Philadelphia police typically issue tickets for small amounts of marijuana instead of making arrests, the odor or discovery of marijuana could give the police the reasonable suspicion or probable cause necessary to conduct a search that leads to finding other contraband.
Defenses to Drug Charges
If you are charged with a drug offense, it is critical that you speak with an experienced criminal defense attorney as quickly as possible because there are often strong defenses in these cases. There are a number of potential defenses to drug violations which often start with challenging the Commonwealth's evidence at the preliminary hearing and the filing of pre-trial motions. If those defenses are not successful, then it may be possible to successfully challenge the Commonwealth's evidence at trial before a judge or jury.
Motion to Dismiss at the Preliminary Hearing
The first defense to a drug case is to challenge the Commonwealth's evidence at the preliminary hearing. In a felony case in Pennsylvania, with some relatively rare exceptions, the defendant is entitled to a preliminary hearing shortly after arrest. At the preliminary hearing, the Commonwealth must show that it is more likely than not that the defendant sold or intended to sell a controlled substance.
Once retained, our criminal defense attorneys will immediately begin investigating the case in order to evaluate whether it may be possible to obtain dismissal of some or all of the charges at the preliminary hearing. For example, we may be able to successfully cross-examine the police officers in order to show that the defendant was merely present where other people were possessing or selling drugs or that because the alleged buyers were never stopped by police, it is impossible to say whether or not the defendant actually sold anything. In those circumstances, it may be possible to have a felony charge dismissed without a trial by making a motion to dismiss at the preliminary hearing.
Pre-trial Motions in Drug Cases
If the possession case proceeds to the Court of Common Pleas or is listed for trial in the Municipal Court, then there may be pre-trial motions which can be filed as part of the defense strategy. Our criminal lawyers have extensive experience in defending drug cases through the use of pre-trial motions. Common pre-trial motions which can be used to challenge the charges include Speedy Trial motions, Motions to Quash, Motions to Reveal the Confidential Informant, and Motions to Suppress. Our attorneys have succeeded in raising these types of defenses in countless cases.
Speedy Trial Motions and "Must Be Tried"
Pennsylvania Speedy Trial rules require the prosecution to bring the defendant to trial within 180 days in the Municipal Court and within one year in the Court of Common Pleas. There are often exceptions for when the prosecution exercises due diligence, but in many cases, it may be possible to have the case dismissed if there is too much delay. Likewise, if the prosecution is not ready for two listings, the judge at the preliminary hearing or the trial judge will typically mark the case "Must Be Tried." Once the case is marked Must be Tried, it is likely that if the prosecution is not ready again, the judge will dismiss the case. In most cases, this means that if the prosecution is not ready on three occasions, we will typically be able to have the case dismissed for lack of prosecution. The Must Be Tried rule is an unofficial, informal practice in state criminal court. Even if a case is marked Must Be Tried, the judge is not legally obligated to dismiss the case. But in most cases, the Commonwealth is permitted a limited number of continuances and a judge will honor the Must Be Tried marking.
Motion to Quash Drug Possession Charges
The motion to quash asks a higher ranking Common Pleas judge to reverse the decision of the Municipal Court judge or Magisterial District Justice to hold the defendant for court following ap preliminary hearing. The motion to quash asserts that the Commonwealth failed to establish a prima facie case of the charges at the preliminary hearing, meaning the Commonwealth did not prove that it was more likely than not that a crime was committed by the defendant.
Motions to quash are limited to legal error, and the defense may not argue that the witnesses at the preliminary hearing were lying or mistaken. Instead, the motion to quash argues that the Commonwealth failed to establish one or more elements of one of the statutes charged. For example, if the Commonwealth charged the defendant with carrying a concealed firearm without a permit in violation of 18 Pa.C.S. Sec. 6106, a motion to quash could be filed if ballistics reports actually showed that the gun was not operable. This is because that particular gun charge requires a showing of operability with respect to the firearm.
Motion to Reveal the Identity of the Confidential Informant
The police often use confidential informants in order to investigate drug sales in Philadelphia. In confidential informant cases, the police will typically pay a small amount of money to a known drug user who they have arrested before, and that person will then go buy a controlled substance from sellers who are selling inside a house or building and who are not easily visible to the police. Once the confidential informant makes a handful of drug buys, the police will obtain a search warrant for the property. They will then typically have the confidential informant attempt to purchase the controlled substance one more time using pre-recorded buy money. Once the CI has paid the seller using pre-recorded buy money, the officers will execute the search warrant and attempt to catch the seller in possession of the incriminating pre-recorded buy money.
In most cases, the Commonwealth will refuse to reveal the identity of the confidential informant during pre-trial discovery. However, the confidential informant is a critical witness in cases which took place behind closed doors. Assuming someone actually sold to the confidential informant, the confidential informant is likely the only person who knows who the seller was because the police did not see the transaction. Therefore, our criminal lawyers may file a CI Motion. If the motion is granted, the Commonwealth must either produce the CI for cross-examination at trial or withdraw the case.
Motion to Suppress
A large number of drug possession cases are defended through the use of a Motion to Suppress. We will file a Motion to Suppress when we believe that the police or law enforcement agents may have conducted an illegal search or seizure. In order to use evidence such as drugs, guns, statements, or identifications in court, the Commonwealth must be able to show that the law enforcement agents obtained the evidence legally. If the police conducted an illegal search, then they generally cannot use the evidence, and the evidence must be suppressed.
For example, if the police search your house without a warrant, or if they stop you while walking down the street and frisk you for no reason, it may be possible to have whatever evidence they find suppressed. In that case, the Commonwealth may not use the evidence at trial, and without the evidence, the Commonwealth may have to withdraw the charges. At a motion to suppress hearing, the Commonwealth must call witnesses to establish by a preponderance of the evidence that the evidence it seeks to introduce at trial was obtained in a constitutional manner. For searches of houses, this typically requires the Commonwealth to show that it had a valid warrant.
For searches of people and cars, there are different standards for different types of searches which may be either reasonable suspicion or probable cause depending on the type of search and the place searched. Probable cause requires a showing that it was more likely than not that the police would find contraband. Reasonable suspicion requires a showing that the officer had a specific and articulable belief that the defendant was engaged in criminal activity. If the officer further has reasonable suspicion that the defendant was armed, then the officer may conduct a limited pat down or "Terry Frisk" and recover anything that feels like a weapon. If the officer can immediately tell that something is contraband during the Terry frisk, then the officer may recover that item, as well.
Our defense lawyers are often able to challenge drug violations by showing that the officer did not have probable cause, reasonable suspicion, or any reason to believe that the defendant was armed and dangerous. We also may be able to show that the officer could not have possibly confused the narcotics recovered for a weapon or that the officer could not have known that he or she was feeling narcotics during the frisk. We have won countless motions to suppress in both the Municipal Court and the Court of Common Pleas.
Trial Defenses in Drug Cases
Finally, if we are not able to have the case dismissed at the preliminary hearing or through pre-trial motions, we can challenge the Commonwealth's evidence at trial before a judge or a jury. Potential defenses in drug cases may include challenges to the sufficiency of the evidence as well as the credibility of the arresting officers. Although police and narcotics officers often testify that they observed drug transactions prior to making a stop, we are often able to convince judges and juries that these transactions did not happen or may have actually involved someone other than the defendant.
Where there are no allegations of transactions and the charges are based on the quantity or manner of packaging of the drugs, we also work with the best expert witnesses in narcotics distribution to show the prosecutor, judge, or jury that drugs were not possessed with the intent to deliver. Through prompt and thorough investigation of a case, we may also be able to show that the narcotics belonged to someone else by finding witnesses or surveillance footage, or we may be able to show that the police just plain got the wrong guy. We have also been able to successfully negotiate for clients to participate in pre-trial diversionary programs which do not result in permanent convictions or other serious consequences.
Sentencing for Drug Convictions
Even misdemeanor violations are serious. Many cases carry significant jail time, and there can be countless life-changing collateral consequences to a conviction ranging from the loss of driving privileges to the loss of professional licenses, student financial aid, and employment. For example, even a first offense conviction for possession of a small amount of marijuana triggers a mandatory six month driver's license suspension in Pennsylvania. If you are not a United States citizen, a drug conviction can lead to serious immigration consequences up to and including deportation.
Case Study - Commonwealth v. M.S.
In Commonwealth v. M.S., Attorney Goldstein successfully litigated the motion to suppress of a significant amount of crack cocaine, drug paraphernalia, and replica firearms. The case involved an illegal parole search by state parole agents. M.S was on state parole at the time of the search and subsequent arrest. Even though he had been complying with the conditions of his parole, his parole agent testified that the agent received information from a Philadelphia police officer that M.S. had fled from a car stop and that police believed he likely had weapons and drugs at his house. Inexplicably, the parole agent failed to record the name of the police officer who had supposedly given him this information. The agent also failed to determine how the officer supposedly knew that there would be guns and drugs in the home, and the parole agent did nothing to confirm that the person who called was actually a police officer.
Likely recognizing that this information would not provide the probable cause necessary to obtain a search warrant, the parole agent decided to search M.S.'s house without a warrant. The agent gathered a group of ten other agents, went to M.S.'s house, and searched the entire house. He testified that when he reached M.S.'s bedroom, M.S. blurted out that the guns in the closet were not real. He then searched the closet, recovering two replica firearms and a significant amount of crack cocaine. He also found a scale and baggies which could be used to package and distribute drugs in other places in the bedroom.
Attorney Goldstein quickly recognized that the parole agent violated M.S.'s rights in conducting this search. Pennsylvania citizens who are on probation or parole retain a number of important Fourth Amendment rights. Although state parole agents are not required to obtain a search warrant prior to conducting a search of a parolee's residence, there are two key restrictions on their ability to search a home. First, an agent may conduct a routine home visit in which the search is limited to a walkthrough of the house and the recovery of items which are in plain view. This means that if an agent walks through the home and finds drugs sitting out on the kitchen table, the agent could recover the drugs and ask police to charge the probationer or parolee with possession. Second, an agent may conduct a full search of a parolee's home if the agent has reasonable suspicion that evidence of parole violations will be found in the residence.
Here, Attorney Goldstein litigated a Motion to Suppress, arguing that employing ten, armed parole agents in a search of the M.S.'s home far exceeded the scope of a routine home visit and thus required reasonable suspicion. Further, Attorney Goldstein argued that the agents did not have reasonable suspicion when they went to the house. They had no idea who had actually called them and where that person came up with the relevant information.
The trial judge agreed, finding that an essentially anonymous phone call cannot provide the reasonable suspicion for what was clearly a full search. The agents should have done more to verify that the caller was in fact a police officer and determined the basis for that person's allegations. Therefore, the court granted the motion and excluded the contraband. Unable to proceed without the suppressed evidence, the Commonwealth then withdrew the charges against M.S..
Our Philadelphia Drug Lawyers Can Help
If you are charged with selling or possessing illegal drugs, you need an experienced defense attorney who can investigate and evaluate your case, determine if your rights have been violated, and provide you with all of the options and a strong defense. You should not assume that you have to plead guilty just because the police found drugs on or near you or in a vehicle. The Commonwealth has to prove that the search was legal and that the drugs were yours, and we have the experience to challenge them every step of the way. We have even won motions to suppress where the police testified that they observed the defendant engaged in multiple narcotics transactions.
Possession with the Intent to Deliver a controlled substance and other drug possession offenses are serious charges, and you need to mount a serious defense. The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC know how to provide that defense. If you or a loved one have been charged with a narcotics offense in Pennsylvania or New Jersey, call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session with one of our drug lawyers.