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Thursday, August 21, 2014

Criminal Lawyer Update: Pennsylvania Superior Court Rules Most Mandatory Minimum Sentencing Statutes Unconstitutional in Commonwealth v. Newman, 2014 Pa. Super. 178 (Aug. 20, 2014)

In Commonwealth v. Newman, the Pennsylvania Superior Court, ruling unanimously, en banc, holds most mandatory minimums in Pennsylvania unconstitutional as a result of Alleyene v. United States.  Defendants in criminal court will no longer have to endure the overwhelming leverage of the Commonwealth's threat of the imposition of a mandatory-minimum sentence.

It's too early to tell if the Commonwealth will seek allocatur from the Pennsylvania Supreme Court.

Enjoy...

Read the opinion, authored by Ford Elliot, P.J.E. here.

Read the concurrence, authored by Mundy, J. here.

Friday, July 25, 2014

Search of Digital Information on a Cell Phone Cannot be Justified Under the Search Incident to Arrest Doctrine

The following story is one I wrote, and which was originally published in the July 2014 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.  The original work can be viewed at https://uponfurtherreview.philadelphiabar.org/page/Article?articleID=41281ca5-2ddd-4673-8ba6-5cf57db0bc98



Search of Digital Information on a Cell Phone Cannot be Justified Under the Search Incident to Arrest Doctrine


This past spring, we wrote about two companion cases argued before the Supreme Court of the United States that could settle the question of whether the search of the digital information contained in a cell phone can be justified under the search incident to arrest doctrine. Now, on June 25, 2014, the Supreme Court, in a settling, unanimous decision ruled that police may not, without a search warrant, search digital information on a cell phone seized from an individual who has been arrested. Chief Justice John Roberts authored the opinion of the Court. 

The companion cases are Riley v. California and United States v. Wurie. The salient facts of each of these cases were summarized in the March 2014 edition of Upon Further Review, which can be accessed by clicking [here].

In the Supreme Court’s Riley and Wurie opinion, the analysis began by citing the Fourth Amendment to the United States Constitution, noting how the labeling of the search incident to arrest doctrine as an exception to the warrant requirement of the Fourth Amendment is a misnomer, because warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant." The opinion then laid out a discussion of the handful of Supreme Court precedent in the search incident to arrest arena, beginning with the seminal case limiting the scope of a search incident to arrest, Chimel v. California, 395 U.S. 752 (1969) (disallowing the search of an arrestee’s home even where he is arrested therein), and on through United States v. Robinson, 414 U.S. 218 (1973) (permitting the search of a container, a cigarette pack, found on the arrestee’s person at the time of arrest), United States v. Chadwick, 433 U.S. 1 (1977) (disallowing the search of a 200-pound, locked footlocker with an arrestee at the time of arrest), and Arizona v. Gant, 556 U.S. 332 (2009) (disallowing the search of a vehicle where the arrestee is secure and outside the reaching distance of the passenger compartment at the time of the search).

Before applying a balancing test for warrantless searches, the Court began by stating how modern cell phones "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." In applying the balancing test for warrantless searches, which assesses the degree to which a warrantless search intrudes upon an individual’s privacy versus the degree to which the warrantless search is needed for the promotion of legitimate governmental interests, the opinion discussed a realistic dichotomy between the search of digital information contained in a cell phone and the search of physical objects like the case in Robinson. The Court then discussed the two rationales weighing in favor of permitting a search incident to arrest established in Chimel, the need to uncover and disarm weapons from an arrestee and to prevent the destruction or loss of evidence. As for the need to uncover and disarm weapons from an arrestee, the court held that law enforcement officers are still free to search the physical aspects of a cell phone to make sure there are no physical threats, like, for example, a concealed razorblade secreted between the phone and its case. However, the digital information contained with a cell phone poses no physical danger to a police officer. Then, as for the interest of preventing the destruction or loss of evidence, the Court held that there is not much of a threat of this, and that there are reasonable, cost-effective options available to law enforcement which can ensure that data will not be lost if they thereafter choose to apply for a search warrant.

The opinion further outlined the significant privacy interests involved with cell phones, and the way people use them in today’s age. It also discussed how data that is accessible on a cell phone is stored, and the facts that data accessible on a cell phone may not be stored on the phone at all with the burgeoning prevalence of cloud computing. In arguing a point in favor of permitting searches, the United States proposed a solution where law enforcement could either disconnect a phone from the network before searching it or develop protocols to address concerns raised by cloud computing. The Court found that the development of protocols to address cloud-computing concerns was a good idea, "but the Founders did not fight a revolution to gain the right to government agency protocols."

After the United States and California proposed several other situations where they believed exceptions could be made, the Court remained steadfast with a bright line rule against the warrantless search of a cell phone absent exigent circumstances, concluding: "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant."

Friday, March 28, 2014

Philadelphia Homicide Detectives to Begin Taping Interrogations

As reported on Philly.com today, the Philadelphia Police Department will begin taping interrogations in homicide cases.  Do you think this will help the truth-determining process in Philadelphia courts?  To read the article, click here.

Saturday, March 22, 2014

SCOTUS to Hear Companion Cases Involving Cell Phone Searches Incident to Arrest - Criminal Lawyers in Philadelphia Courts Should Keep Watch

The following story is one I wrote, and which was originally published in the March 2014 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.  The original work can be viewed at https://uponfurtherreview.philadelphiabar.org/page/Article?articleID=62d4670c-0bd7-40e7-a7a7-d581fb2cfe37


SCOTUS to Hear Companion Cases Involving Cell Phone Searches Incident to Arrest

Brad V. Shuttleworth, Esq. on 03/18/2014
One of the first things we learn in law school is how slowly the law can trail industry and technology. Sometimes, the length of that trail can be astonishing. Take the case of a smartphone for example. Apple’s revolutionary smartphone, the iPhone, came out about eight years ago. Now it stands six generations deep. Even years before the iPhone’s premiere, Blackberry led the smartphone market, with devices capable of shooting photos and video, e-mailing, messaging, browsing the web, playing music and storing private data. Throughout this time, law enforcement officers across the country have been searching smartphones incident to arrest. In court, there has been little guidance on a law enforcement officer’s ability to dive deep into the mounds of data contained in a smartphone, once it is lawfully seized pursuant to an arrest. Finally, after years of waiting, the United States Supreme Court will hear arguments on April 29th in two cases on the ability of law enforcement officers to search the data contained within a cell phone upon a seizure incident to arrest. The two cases have markedly different facts, and they come from two jurisdictions.

The first case is Riley v. California (13-312). Riley was ultimately decided in the California Court of Appeals. The California Supreme Court declined review. The case was then taken to the United States Supreme Court by way of a Petition for Allowance of Appeal, which was granted.

In Riley, the defendant was convicted by jury trial of shooting at an occupied vehicle, attempted murder and assault with a semi-automatic firearm. About 20 days after a shooting occurred, police stopped the defendant in a car, and they learned he had been driving without a license. Because of him driving without a license, police were able to impound his car. While conducting an inventory search, they discovered illegally-possessed firearms. Upon arresting Riley for the guns, they seized his cell phone, which provided photographic and video evidence of gang affiliation, and evidence that the phone was used near the place of the shooting 20 days earlier, and it was used about 30 minutes near the location where police found Riley’s other car after the shooting.

The California Court of Appeals found that the search of the cell phone was permissible as a valid search incident to arrest, as it was “immediately associated” with his “person” when he was arrested. Because the cell phone was on Riley’s person when he was arrested, the police were justified in performing a full search incident to arrest, which are generally broad in scope for items found on a defendant’s person.

The second case is United States v. Wurie (13-212). Wurie was granted allowance of appeal out of the United State Court of Appeals for the First Circuit. The incident giving rise to the arrest in Wurie occurred in South Boston. Sergeant Detective Paul Murphy, while conducting surveillance, observed what he believed to be a drug transaction. After Sergeant Murphy stopped the buyer, the buyer admitted that he bought drugs from Wurie. Sergeant Murphy notified another police officer, who arrested Wurie after he parked his car. Once Wurie was transported to the police station, two cell phones, a set of keys, and a rather large amount of cash were taken from him. Before Wurie was booked, two officers noticed that one of his cell phones, a gray Verizon LG phone, was repeatedly receiving calls from a number identified as “my house” on the external caller ID screen on the face of the phone. This was visible in plain view. After about five minutes passed, officers opened the phone to look at Wurie’s call log. They then saw a photograph of a young woman holding a baby, which was set up as the phone’s “wallpaper”, or background image. The officers continued on by pressing another button on the phone, allowing them access to the phone’s call log, which showed the incoming calls from “my house”. They then pressed yet another button to determine the phone number associated with the “my house” caller ID reference. The officers then traced the phone number to an address on Silver Street in South Boston, not far from where Wurie parked his car just before he was arrested.

Officers proceeded to the address, armed with Wurie’s keys. One of the mailboxes at the address listed the names of Wurie and Cristal. Officers looked through the first-floor apartment window, and saw a black woman who looked like the woman whose picture appeared on the phone wallpaper. They then entered the apartment, without a warrant, to “freeze” it while they obtained a search warrant. They ultimately seized from the apartment, among other things, 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was charged with possessing with intent to distribute cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress evidence, which the trial court denied.

The First Circuit reversed the denial of the suppression motion. After thoroughly discussing United States Supreme Court precedent, and opinions of other jurisdictions, it held that “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception. . . .” (Emphasis in original). It noted that the government failed to demonstrate that a cell phone search under such circumstances is ever necessary to promote officer safety or prevent the destruction of evidence.

There have been no cases in Pennsylvania discussing the search of the data contained within a cell phone solely because of a search incident to arrest. It will be helpful if the United States Supreme Court were to rule on this case by the end of this term, because Pennsylvania is not the only jurisdiction where this issue has not yet been settled. Once the Supreme Court rules, in whichever way it rules, we will know at least the baseline protections afforded to individuals for searches in these circumstances under the Federal Constitution.

Sunday, February 23, 2014

Philadelphia Criminal Lawyer Update: PA Superior Court Rules Trial Court's Refusal to Strike Juror Who Was Former Member of Law Enforcement Permissible

The case is Commonwealth v. Hale, ___ A.3d ___, 2014 Pa. Super. 19 (Feb. 6, 2014).  The court began by stating that 'challenges for cause should be granted: (1) when the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims, or witnesses, that the court will presume the likelihood of prejudice; and (2) when the potential juror's likelihood of prejudice is exhibited by his conduct and answers to questions at [v]oir dire.'  In addition, when it comes to a law enforcement official, that official must have some real relationship to the case, such as being on the same police force as testifying officers, in order for a trial court to be deemed to have abused its discretion in refusing to strike a law enforcement official.  In Hale, the prospective juror was a school police officer, and retired as a detective with the Philadelphia District Attorney's office, so there was no real relationship with the case.  In addition, the defense did not allege that police officer credibility would be at issue at trial.  Thus, the trial court's refusal to strike this prospective juror for cause was not an abuse of discretion.  You can read the case here.

Friday, February 14, 2014

Court in Philadelphia Closed Again Today

Philadelphia courts are closed again today (2/14/14) because of the inclement weather, not because of Valentine's Day.   Courts will reopen on Tuesday, February 18, 2014.  Be safe everyone.

Saturday, February 1, 2014

Clients Seeking a Criminal Lawyer Want Effective Communication

Being charged with a crime can be one of the scariest experiences of anyone's life.  I've been a criminal lawyer practicing in Philadelphia for a long time.  From this experience, I've learned a very important lesson: communicating effectively with clients is the key to their satisfaction.  People who are charged with a crime need a criminal lawyer who effectively communicates with them.  After all, they're going through a lot of emotional turmoil.

Effective communication allows the client to effectively participate in the lawyer's representation and obviates the need for the client to constantly reach out to the lawyer for reasonable requests for information.  If a lawyer is constantly bogged down by phone calls from current clients, that lawyer should examine his or her practice to see if the clients are calling because they do not have the information they need about their cases.  Here are some tips for criminal lawyers to make their clients happy:

1.  Keep clients' phone numbers handy and call them whenever something happens in their case.  Clients appreciate this, and it is a proactive approach to lawyer-client communications.  If you make a habit of this, you'll see that the total length of phone conversations drops considerably because you've kept the client informed.

2.  Return all phone calls within 24 hours. When clients have a question, they want a quick response.  And, they deserve a quick response.  No client wants to think you're too busy working on other clients' cases that you can't return their call.

3.  Write letters to clients.  Writing a simple letter to a client can take less then five minutes, and the client will feel like they're getting something for the fee they've paid.

4.  Copy clients on written communication with opposing counsel or the court.  Make it simple - you don't have to write a cover letter for the copied letter you're sending.  Copying a client is an easy way for you to keep them informed.

Make these practices a habit, and you'll see that it actually saves you time, makes clients happy, and will be better for your practice in the long run.

Communicating information to a client about his or her matter is not just something that lawyers should do.  It's also required by law.  For example, the Pennsylvania Rules of Professional Conduct, Rule 1.4, sets forth the minimal standard for a lawyer's communication with a client.  It reads:

Rule 1.4 Communication

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) A lawyer in private practice shall inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing at any time the lawyer's professional liability insurance drops below either of those amounts or the lawyer's professional liability insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client.

Criminal lawyers, try these simple tricks, follow the law, and feel free to let me know how they work for you in your practice!

Sunday, January 12, 2014

Philadelphia Criminal Lawyer Update: PA Supreme Court Reigns in Application of Mandatory Minimum Sentences for Drug Dealing with a Firearm

The case is Commonwealth v. Hanson, ___ A.3d ___ (2013), 2013 WL 6831854 (Pa. Supreme Ct., Dec. 27, 2013).  The opinion is written by Justice Saylor.   And, the application of a gun plus drug dealing mandatory minimum is overruled, because a defendant must be in knowing, physical possession or control, which is constructive control, an analogue to constructive possession, and the firearm must be in close proximity to the drugs in question.

To read Hanson, click here.

Thursday, January 2, 2014

Pennsylvania Supreme Court Strikes Down Act 152 of 2004 as Violative of the Single-Subject Rule of Art. III, Sec. 3 of the Pennsylvania Constitution

On December 16, 2013, the Pennsylvania Superior Court struck down Act 152 of 2004 ("Act 152"), in its entirety, as violating the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution.  Act 152 made various changes to the Pennsylvania Judicial Code, including portions which amended the version of Megan's Law in effect at that time.  The Supremes stayed the decision for 90 days "in order to provide a reasonable amount of time for the General Assembly to consider appropriate remedial measures, or to allow for a smooth transition period." 

One of the criminal statutes stricken as part of this decision is 18 Pa.C.S. § 4915 (Failure to Comply with Registration of Sexual Offenders Requirements) (expired December 20, 2012), now replaced by the analog SORNA version at Section 4915.1 (effective December 20, 2012).  If you or a loved one has been convicted of Section 4915, there is a 60 day window to file a petition under the Post-Conviction Relief Act to attempt to have your conviction reversed.  Contact a criminal lawyer, like me, as soon as possible.  

To read the majority opinion in Commonwealth v. Neiman, ___ A.3d ___ (Pa. Dec. 16, 2013), 2013 WL 6598735, click here.

Friday, December 27, 2013

Pennsylvania Superior Court Overturns Monsignor William J. Lynn's Conviction

The Pennsylvania Superior Court has overturned Monsignor William J. Lynn's conviction for a former version of Pennsylvania's endangering the welfare of children (EWOC) statute, 18 Pa.C.S. § 4304 (amended 2007).  To read the unanimous Superior Court opinion, click here.

Thursday, December 19, 2013

Pennsylvania Supreme Court Rules That Spouse's Testimony of Defendant's Conduct is not Protected by the Spousal-Communication Privilege

The following story was originally published in the December 2013 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.  The original work can be viewed at https://uponfurtherreview.philadelphiabar.org/page/Article?articleID=f2f55aae-9f0c-48b3-b0d2-564ff3abdf6f



Pennsylvania Supreme Court Rules Spouse's Testimony of Defendant's Conduct is Not Privileged Spousal Communication

Brad V. Shuttleworth, Esq. on 12/17/2013
The Pennsylvania Supreme Court recently handed down the opinion in Commonwealth v. Mattison, A.3d __ (Pa. 2013), 2013 WL 6124318, holding, in part, that a spouse´s testimony of a defendant´s conduct does not fall within the spousal-communication privilege embodied  in 42 Pa.C.S. § 5914.  The opinion was authored by Mr. Justice Baer.
To read Mattison, visit: http://www.pacourts.us/assets/opinions/Supreme/out/J-89-2012mo%20-%201016271921814523.pdf?cb=1

The facts in Mattison are straight forward.  The defendant, Kevin Edward Mattison, was convicted in the York County Court of Common Pleas of first-degree murder, robbery and burglary, and he was aggregately sentenced to death, plus a consecutive sentence of 30 - 60 years imprisonment.  He appealed from judgment of sentence.  The evidence at trial was that he drove two women to the victim´s home, one of which was the victim´s girlfriend, so that the girlfriend could try to catch the victim in the act of cheating.  Mattison´s wife and young child were in the car for the ride.  Once there, Mattison helped the two women gain entry into the victim´s apartment to confront him.  During the chaos, Mattison, aware that the victim was a drug dealer, found it to be an opportune time to rob the victim of drugs.  He entered the apartment with his gun drawn, pointed it at the victim, and ordered him and others to the floor.  Mattison repeatedly asked the victim where the drugs were located, and the victim ultimately pointed to where it was.  After obtaining the drugs, Mattison walked to the door to exit the apartment, turned around and fired a single fatal shot into the victim´s head as he was lying defenseless on the floor.  Mattison fled the apartment, returned to his car, where the two women he drove there were then located, along with his wife and child.
Mattison´s appeal was on several grounds.  The one germane to this writing was his challenge to the Commonwealth´s presentation of his wife´s testimony based on the spousal-communication privilege of 42 Pa.C.S. § 5914.  She testified about how Mattison took the women to the victim´s apartment, and that she stayed in the car with the child during the entire incident.  She further testified that when Mattison returned to the car after the incident, he was carrying a Timberland shoe box that he previously did not possess (which presumably contained the items stolen).  In addition, she testified that Mattison left their home later that evening wearing a hooded sweatshirt, and returned wearing a different sweatshirt.
The Pennsylvania Supreme Court rejected Mattison´s claim that the trial court erred in permitting the aforementioned testimony of his wife, as it was not a privileged marital communication under 42 Pa.C.S. § 5914.  Specifically, it reads: "Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial."  The court noted the common-law roots of the spousal-communications privilege, and that it "is based upon considerations of public policy, as in the case of husband and wife to preserve the peace, harmony and confidence in their relations," that the communication must have been made in confidence, and that the communication must have been made during the marital relationship.  In this case, the evidence to which Mattison objected was not a communication, but rather observations of conduct, and that conduct did not convey any confidential message or meaning that could be construed as a communication. 
After rejecting Mattison´s other claims, the Pennsylvania Supreme Court affirmed judgment of sentence.
To read Mattison, visit: http://www.pacourts.us/assets/opinions/Supreme/out/J-89-2012mo%20-%201016271921814523.pdf?cb=1

Thursday, July 18, 2013

United States Supreme Court Rules that Facts Triggering Mandatory-Minimum Sentences Are Elements of a Criminal Offense in Alleyne v. United States

The following story was originally published in the July 2013 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.  The original work can be viewed at http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=b7e44245-8b52-4435-a0f8-839163dba690

United States Supreme Court Rules that Facts Triggering Mandatory-Minimum Sentences Are Elements of a Criminal Offense in Alleyne v. United States

Brad V. Shuttleworth, Esq. on 07/18/2013

In 2000, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact increasing the maximum term of imprisonment for a crime must be found beyond all reasonable doubt, and not by a judge by a preponderance of evidence at sentencing. In Apprendi, the defendant was sentenced to 12 years’ imprisonment under a New Jersey Statute that increased the maximum term of imprisonment from 10 years to 20 years if the trial judge found that the defendant committed the crime with racial bias. The trial judge in Apprendi found the fact of racial bias by a preponderance of the evidence at sentencing, which the Supreme Court found to violate the Sixth Amendment.

Then, in 2002, the United States Supreme Court refused to apply Apprendi to facts that increase mandatory-minimum sentences in Harris v. United States, 536 U.S. 545 (2002). It held that a judicial finding of facts triggering a mandatory-minimum do not implicate the Sixth Amendment – that is, it found that a jury does not have to find a fact triggering a mandatory beyond all reasonable doubt, but the judge may do so by a preponderance of evidence at sentencing. The Harris court was faced with a case where the defendant was charged under 18 U.S.C. Sec. 924(c)(1)(A), with carrying a firearm in the course of committing a crime of violence or drug trafficking crime. The defendant was found guilty by a jury at trial of carrying a firearm in the course of committing a drug trafficking crime, which, in itself, carries a mandatory-minimum sentence of five years imprisonment. However, the trial court, at sentencing, imposed a seven year mandatory minimum under Section 924(c)(1)(A)(ii), which requires such a mandatory sentence if the firearm is brandished during the crime.

Now, the United States Supreme Court has decided Alleyne v. United States, 570 U.S. ___ (2013), 457 Fed. Appx. 348 (U.S., 11-9335, June 17, 2013), overruling Harris, and applying Apprendi to mandatory-minimum sentences. The Supreme Court in Alleyne had the opportunity to analyze the very same mandatory-minimum statute at issue in Harris, 18 U.S.C. 924(c)(1)(A). The critical facts are straightforward and few.

The jury found Alleyne guilty, and indicated on a verdict sheet that he used or carried a firearm during the commission of a crime of violence, which would mandate a minimum five year sentence, but it did not indicate a finding that the firearm was brandished, which would mandate a minimum seven year sentence. Over objection by the defendant, the trial court sentenced the defendant to seven years’ imprisonment based upon a finding that a firearm was brandished during the commission of the offense. The trial court’s ruling explained that it based its decision on Harris, holding that brandishing was a mere sentencing factor that the trial court could find by a preponderance of evidence without violating the Sixth Amendment. The Circuit Court of Appeals affirmed the trial court.

However, the Supreme Court, in an opinion authored by Justice Thomas, ruled that because mandatory-minimum sentences increase the permissible sentencing range for a crime, any fact that triggers or increases a mandatory minimum is an element of an offense, which must be submitted to the jury. Unlike sentencing factors, which a judge may find merely by a preponderance of evidence in imposing a discretionary sentence, a mandatory-minimum ups the ante and increases a prescribed sentencing range, as does an increase of the maximum sentence for a crime. Justice Thomas stated: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." So, now, both facts that increase the ceiling of a sentence, the maximum, and facts that increase the floor of a sentence, the minimum, must be found beyond all reasonable doubt.

Interestingly, Justice Breyer, who disagreed with Apprendi since it was handed down in year 2000, and who continues to disagree with it, voted to apply Apprendi to mandatory minimums and overrule Harris. He wrote a concurring opinion explaining his decision to uphold Apprendi, despite his disagreement with it, and apply its rule to mandatory minimum. His reasoning is twofold: First, he reasons that if Apprendi holds the Sixth Amendment requires findings of fact beyond a reasonable doubt to sentencing maximums, the Sixth Amendment must also require the same for sentencing mandatory minimums – whether it’s raising maximums or mandatory minimums, they both raise the permissible sentence for a crime. Second, Apprendi is the defined relevant legal regime since before Harris, but the two cases have caused the anomaly that Apprendi "insist[s] that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find sentencing facts that require a judge to impose a higher sentence." Thus, he voted to uphold Apprendi, and to reverse Harris.

To read Alleyne, visit: http://www.supremecourt.gov/opinions/12pdf/11-9335_b8cf.pdf

Wednesday, May 22, 2013

Philadelphia Criminal Defense Lawyer Brad V. Shuttleworth Again Named to Super Lawyers Rising Stars List for 2013

Brad V. Shuttleworth was again named to Pennsylvania Super Lawyers Rising Stars list in 2013.  Less than 2% of lawyers across the nation are included in the Super Lawyers Rising Stars listing, and this is the fourth time Mr. Shuttleworth has been included in the list since 2008.  Super Lawyers is an independent rating service of lawyers who have attained a high-degree of peer recognition and professional achievement.  Their selection process is multi-phased and includes independent research, peer nominations and peer evaluations.  Keep in mind that no aspect of this advertisement of Brad V. Shuttleworth's inclusion in the Super Lawyers Rising Stars List has been approved by the Supreme Court of New Jersey or the Supreme Court of Pennsylvania.

Tuesday, May 21, 2013

Don't forget to vote today in the primary!

There are lots of candidates running for judge in Philadelphia County, many of which will sit in criminal court.  Be sure to educate yourself and check out the Committee of Seventy and the Philadelphia Bar Association's Commission on Judicial Selection and Retention.

Monday, April 22, 2013

Philadelphia Criminal Lawyer Update: Passenger's Nervousness and Movements Appearing to Be Reaching Beneath Seat During Nighttime Car Stop Enough to Justify Reasonable Suspicion for Protective Weapons Search

Criminal lawyers in Philadelphia need to be aware of cases where police claim their clients appeared nervous and made furtive movements.  The latest case on this issue is Commonwealth v. Buchert, --- A.3d ---, 2013 WL 1499347 (Apr. 12, 2013) from the Pennsylvania Superior Court.  In Buchert, the Court held that, during a nighttime car stop, police had reasonable suspicion to conduct a protective weapons search in the passenger area of a car where the passenger was seen reaching forward towards the area beneath his seat as police approached the car, and where he appeared extremely nervous.  To read the case, click here.

Thursday, April 18, 2013

Rapper Meek Mill Weighs in on Discredited Philadelphia Police Officer Andre Boyer

According to Philly.com, rapper Meek Mill claims the findings about discredited Philadelphia Police Officer Andre Boyer will help his law suit.  It doesn't look like the Maybach Curtains will close on this story any time soon.  To view the article, click here.

Wednesday, April 17, 2013

Philadelphia Criminal Lawyer Update: Commonwealth Must Prove Causation Was "Direct and Substantial Factor" in Aggravated Assault By Vehicle While Driving Under the Influence (DUI)

In a new opinion in Commonwealth v. Spotti, 2013 WL 1490996, --- A.3d --- (April 12, 2013), the Pennsylvania Superior Court reversed defendant's conviction for aggravated assault by vehicle while DUI because the defendant's reckless driving was not a direct and substantial factor in victim's injuries. The defendant in Spotti was driving under the influence of alcohol, and driving erratically and recklessly.  The defendant swerved his car, causing another to veer to avoid colliding with defendant's car, which caused that person to crash into a van parked on the side of the road.  The van then struck a tow truck.  Two people who were changing a tire on the van were severely injured when the accident occurred.  To read the majority opinion in Spotti, authored by Judge Bender, click here.  To read the concurring and dissenting opinion, authored by Judge Strassburger, click here.

Monday, April 15, 2013

Credibility of Philadelphia Police Officer Andre Boyer at Issue, According to Philly.com

Philadelphia Police Officer Andre Boyer has made many, many arrests.  And, many of them are now being challenged because of a 2008 police probe calling into question Officer Boyer's credibility, according to an article reported on Philly.com. To view the article, click here.

Philadelphia criminal lawyers need to be aware of each and every police officer whose credibility is in question, especially where credibility issues have been documented, like in this case.

Tuesday, April 9, 2013

Philadelphia Criminal Lawyer Update: Pennsylvania Supreme Court Rules on Juvenile Life Without Parole

The Pennsylvania Supreme Court, in Commonwealth v. Batts (March 26, 2013), ruled that the trial court unlawfully sentenced a juvenile to a mandatory sentence of life without parole, applying the United States Supreme Court opinion in Miller v. Alabama and new Pennsylvania law on juvenile sentencing in murder cases.  This is a must read for every criminal lawyer in Philadelphia.  To read Batts, click here.

Tuesday, March 19, 2013

Philadelphia Criminal Lawyer Update: Pennsylvania Superior Court Weighs In on GPS Tracking Devices Under the Wiretap Act in Two Recent Cases


The Pennsylvania Superior Court rules that defendants must have a reasonable expectation of privacy to enjoy the evidentiary exclusionary rule provided in the Pennsylvania Wiretapping and Electronic Surveillance Act (“WESCA”) and that authorization orders issued pursuant to WESCA serve as the functional equivalent of traditional search warrants.


In two recent opinions on the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), 18 Pa.C.S. § 5701, et seq., the Pennsylvania Superior Court held that defendants must have a reasonable expectation of privacy to enjoy the evidentiary exclusionary rule provided by WESCA and that orders pursuant to WESCA serve as the functional equivalent of traditional search warrants.  The cases are Commonwealth v. Arthur, ___ A.3d ___, 2013 WL 618798 (Pa. Super., Feb. 20, 2013) and Commonwealth v. Burgos, ___ A.3d ___, 2013 WL 618794 (Pa. Super., Feb. 20, 2013), a case of first impression as to the application of the United States Supreme Court opinion in United States v. Jones, 132 S.Ct. 945 (2012), which held that the installation of a GPS tracking device constitutes a search within the guarantee against unreasonable governmental searches and seizures under the Fourth Amendment to the United States Constitution.  Philadelphia criminal lawyers must have a good grasp on search and seizure law and WESCA to litigate drug cases successfully.
Commonwealth v. Arthur
Central to the Superior Court’s holding in Arthur was the defendants’ failure to demonstrate a sufficient privacy interest in a car to which law enforcement attached a GPS tracking device.  The salient facts follow, and the case ultimately involved consolidated appeals from a matter involving two co-defendants (a third co-defendant died during the pendency of the appeal). 
A county detective received information from two confidential informants that Defendant Arthur was selling drugs, and one of the informants participated in a controlled buy.  During the buy, the police saw Arthur drive to the meet location in a blue Ford Taurus.  After the transaction, police saw Arthur return to the address listed on his drivers’ license, on Stanbridge Street.  Based on that information, a county detective complied with WESCA and obtained a court order granting authorization to install and use a GPS tracking device on the Ford Taurus, pursuant to WESCA, specifically 18 Pa.C.S. § 5761 (Mobile Tracking Devices).   Once the GPS tracking device was installed, there was a second controlled buy from Arthur.  Arthur drove to that buy in the Ford Taurus, departing from an address on Sandy Street and returning there after the buy.  A few hours after, he returned to the Stanbridge Street address.  As a result of both the second controlled buy and information obtained from the GPS tracking device, law enforcement obtained and executed search warrants for both addresses and the Ford Taurus.
Upon search of the Stanbridge Street address, police seized numerous quantities of marijuana, drug paraphernalia, five guns and ammunition.  At the time of that search, Defendant Ladson-Singleton (deceased) was found at the residence.  Upon search of the Sandy Street address, police seized numerous quantities, drug trade documents, empty plastic baggies, nearly $20,000 in cash and a loaded gun.  At the time of that search, Defendant Thompson was found at the residence.
All three defendants were arrested and charged with criminal conspiracy, various firearms offenses and various drug offenses, and all three cases were consolidated.  The defendants filed motions to suppress evidence, and the trial court granted the motions to suppress.  The Commonwealth appealed.
At the motions to suppress, there was no evidence that Defendant Arthur or Defendant Thompson had a privacy interest in the Ford Taurus.  The evidence adduced at the suppression hearing with respect to Defendant Arthur was merely that he used the Ford Taurus during the first controlled buy.  There was no evidence about the owner of the car, or that he had permission from the owner to use it.  As to Defendant Thompson, she also was not the owner of the car, there was no evidence that she had any possessory interest in the car, that she ever drove the car or that she was a passenger in the car at the time the GPS tracking device was installed.
Pennsylvania law requires that a defendant, on a motion to suppress evidence, either through his or her own evidence, or through the evidence of the Commonwealth, demonstrate a privacy interest that has been infringed upon.  The Superior Court cited several cases for the proposition that it would be hard pressed to find that a defendant had a reasonable expectation of privacy absent evidence of ownership or express permission to use a vehicle. Therefore, because the record did not establish ownership or permission to use the vehicle by either defendant, the Superior Court ruled that neither defendant established a reasonable expectation of privacy in the car, a threshold that must be met before a court can grant a motion to suppress.
Commonwealth v. Burgos
The Superior Court in Burgos had the opportunity to rule on the merits of a trial court’s granting of the defendant’s motion to suppress evidence seized as the result of the installation of a GPS tracking device – a case of first impression in Pennsylvania as to the application of United States v. Jones, 132 S.Ct. 945 (2012), which held that the installation of a GPS tracking device constitutes a search within the guarantee against unreasonable governmental searches and seizures under the Fourth Amendment to the United States Constitution. 
In Burgos, the defendant was charged with possession of marijuana with intent to deliver, possession of a controlled substance and criminal conspiracy.  Based on information received from two confidential informants, police detectives obtained information that the defendant had been supplying high-grade marijuana.  The two confidential informants provided extensive evidence about the defendant, his vehicle and his residence.  Their information was corroborated by conversations intercepted by court-ordered wiretaps of others, which referred to the supplier of their marijuana as the first name of the defendant, Edwin.  Police surveillance verified the defendant’s residence and pickup truck, which contained a large toolbox, which was previously described by the two informants as being used to transport marijuana.  The confidential informants had been reliable sources of information in past investigations.
Police obtained an order authorizing the installation and use of a GPS tracking device onto the defendant’s pickup truck, pursuant to WESCA, specifically 18 Pa.C.S. § 5761.  The GPS tracking device was attached onto the pickup truck on March 28, 2011.  On April 2, 2011, the defendant’s traveled from his home in Reading, PA, to a home in Allentown, PA.  After that he made several stops in the Allentown area, and headed west and south, ultimately stopping near Dublin, VA, that evening.  Early in the morning on the next day, on April 3, 2011, the pickup truck departed the location in Dublin, and traveled through North and South Carolina and into Georgia, stopping in the area of Midvale, GA.  It stayed there until early in the morning of April 4, 2011.  It then retraced its route through Georgia, South Carolina and North Carolina.   During that time period, one of the confidential informants provided information to a police detective that the defendant was in South Carolina picking up marijuana to be returned to Berks County, PA and that the defendant’s wife was travelling with him.  The informant also provided further information on the toolbox on the truck.  The vehicle was tracked via the GPS device back to Pennsylvania, and it was ultimately stopped in southern Berks County.  After the stop, police obtained a search warrant for it, and they recovered thirty-four black plastic bags containing marijuana from a special compartment in the toolbox of the truck.  Also from this stop, police recovered three cellular telephones and approximately $188.  After the search of the truck, police obtained a search warrant for the residence the defendant visited in Allentown, PA, on North Mohr Street, which yielded a cash-counting machine and a box of .38 caliber ammunition. 
Burgos filed a motion to suppress evidence, in which the trial court ultimately granted.  The trial court’s reasoning was that the recent United States Supreme Court opinion in United States v. Jones, 132 S.Ct. 945 (2012), required a search warrant based on a finding of probable cause to install a GPS tracking device onto a motor vehicle and that Section 5761 of WESCA was no longer applicable to GPS tracking device searches pursuant to Jones.  In short, the US Supreme Court Jones held that the installation of a GPS tracking device constitutes a search within the meaning of the Fourth Amendment. 
The Superior Court in Burgos disagreed with the trial court, holding that while probable cause is required for the installation of a GPS tracking device, wiretap orders pursuant to Section 5761 serve as the functional equivalent of traditional search warrants.  Thus, a traditional search warrant is not required, only the mandates of WESCA must be complied with in order to lawfully obtain authorization for a GPS tracking device.  The court noted that, because of the purpose of WESCA, and once an order is lawfully obtained through it, WESCA protects citizens’ legitimate expectation of privacy, while recognizing the needs of law enforcement to combat crime.
Any Allocatur?
As of the date of this writing, March 19, 2013, according to Pennsylvania’s Unified Judicial System Web Portal, no party in Burgos has yet filed a petition for allowance of appeal to the Pennsylvania Supreme Court.  However, criminal lawyers on behalf of Arthur filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on March 14, 2013.