Superior Court of Pennsylvania Holds Probation Violation Illegal When Original Sentence Illegal

In the recent case of Commonwealth v. Milhomme, 2011 PA Super. 149 (July 21, 2011), the Superior Court of Pennsylvania held that a sentence stemming from a violation of probation was illegal where the original sentence was illegal. Read this new case on sentencing law by clicking here.

The Jordan Brown Murder Trial

The following story was originally published in the April 2011 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association.


Follow Up Story: The Jordan Brown Murder Trial


In February’s edition of Upon Further Review, we told the story of the embattled trial of Jordan Brown, where the parties have been fighting for over a year about whether the 13 year-old defendant will face trial as an adult or proceed through the juvenile-justice system. Now, after an interlocutory appeal, the Pennsylvania Superior Court ruled last month in Commonwealth v. Jordan Anthony Brown, 2011 Pa. Super. 47 (March 11, 2010), that the Fifth Amendment right against self-incrimination applies to juvenile decertification proceedings.

As background, in Commonwealth of Pennsylvania v. Jordan Brown, the 13 year-old defendant is charged as an adult for the alleged murder of his father’s fiancé, Kenzie Houk, and her unborn child. They were killed when she was shot in the back of the head while she was sleeping. Brown was just 11 years-old when Houk was murdered. If convicted as an adult, he faces a mandatory-minimum prison sentence of life.

In March of last year, a judge denied Brown’s petition to transfer his case from the criminal court to the juvenile court under the Juvenile Act provision of 42 Pa.C.S. Sec. 6322, at a hearing commonly known as a decertification hearing. At the decertification hearing, the trial court considered that he had not admitted to the murders in determining that he is not amenable to rehabilitation in the juvenile-justice system. At a decertification hearing, the Pennsylvania Juvenile Act, 42 Pa.C.S. Sec. 6322, requires that the juvenile establish by a preponderance of the evidence that the transfer of his or her case will serve the public interest. Under Section 6355 (a)(4)(iii), the Juvenile Act enumerates certain factors that a court must consider in determining whether the transfer serves the public interest, none of which require the acceptance of responsibility or an admission to an offense. However, one factor requires a court to consider “whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction,” which is when the child reaches the age of twenty-one.

Brown took an interlocutory appeal from the trial court’s order denying his petition to decertify his case and transfer the matter to juvenile court. The Pennsylvania Superior Court heard oral arguments on January 25, 2011.

In its majority opinion, the Pennsylvania Superior Court, with a panel comprised of Allen, J., Olson, J. and Colville, S.J., held that the trial court’s taking into consideration the fact that Brown did not admit to the offense in determining that he could not be rehabilitated before the expiration of juvenile court jurisdiction violated his Fifth Amendment right against self-incrimination.

The Court conducted a comprehensive survey of state law across the nation on the issue of Fifth Amendment jurisprudence in the context of decertification proceedings. In doing so, the Court adopted the majority view among states, holding that the Fifth Amendment applies to juvenile decertification hearings, which are adversarial in nature and have “severe, potential consequences.”

The Court went on to explain that the pure-use immunity protections contained in 42 Pa.C.S. Sec. 6338 (c)(1), which merely prevent the use of statements, admissions or confessions of a child in relation to the decertification process, are not adequate enough to trump Fifth Amendment protections. However, the Court seemed to imply that if Section 6338 (c)(1) contained derivative or transactional use immunity, the result could have been different. Now, one shouldn’t be surprised if a member of our legislature introduces a bill to expand the protections of Section 6338 so as to alleviate the Fifth Amendment concerns discussed in this opinion.

Finally, the Court concluded that the trial court’s decision effectively required Brown to admit guilt in order to be determined to be amendable to treatment in the juvenile-justice system, which necessarily compels incrimination. The Fifth Amendment is concerned with compulsion, and without adequate protections of immunity, compelling a child to incriminate himself or herself to qualify for treatment in the juvenile system runs afoul of the right against self-incrimination. The child’s choice would come down to admitting guilt, or facing trial as an adult. Thus, if a child had to admit guilt to be considered amenable for juvenile treatment, that would constitute a penalty for exercising a constitutional right.

The Superior Court vacated the trial court’s order denying decertification and ordered a new decertification hearing.

Judge Colville wrote a dissent, based on the record, in that Brown never specifically asserted his Fifth Amendment rights during his psychiatric evaluations or at the decertification hearing. Here’s my take on this: If the trial court did not think Brown had Fifth Amendment rights, there would be no reason to so advise Brown. With a 13 year-old defendant, and a trial court unaware of his Fifth Amendment rights, to require a specific objection would expect the blind to be able to lead the blind. The law always requires that a waiver of constitutional rights be done knowingly and intentionally. Important to note is that it does not appear that Brown was ever advised of his rights against self-incrimination or that an on-the-record colloquy was conducted to advise him that he had any such rights. So it is questionable whether 13 year-old Brown could have knowingly waived this important constitutional right.

The Commonwealth has not filed a petition for allowance to appeal in the Pennsylvania Supreme Court.

To access the opinion, click here.

Criminal Lawyer Update: Fingerprint Evidence Inadmissable Through Hearsay

The Pennsylvania Superior Court has rule In the Interest of D.Y., 2010 Pa. Super. 222 (Dec. 3, 2010) that fingerprint testimony based on hearsay evidence was inadmissible. In D.Y., the only evidence linking the defendant to a burglary and related charges was testimony of a fingerprint card taken at some point before the crime, which bore the defendant's name. The government failed to establish that the methodology linking the fingerprints on the card to the defendant, as it did not introduce testimony of the person who actually conducted the fingerprinting to testify that the prints were the defendant's. This case is a good example of why criminal lawyers have to pay careful attention to how the government attempts to introduce evidence of fingerprint samples taken in the past. Click here to read the case.

Round and Round We Go. Brady Violation Results in Mistrial with Prejudice, Then Reversal of the Ruling with Prejudice

This past July, Chester County Common Pleas Court Judge Howard F. Riley Jr. granted a defense motion for a mistrial with prejudice for three young men facing charges of rape, sexual assault and indecent assault against a female student because the prosecution withheld evidence from the defendants. Because the mistrial ruling was with prejudice, it prevented the prosecution from pursuing another trial against the defendants. The alleged victim was with the three men in a dorm room at Lincoln College late one night, and she claimed she had blacked out due to her voluntarily drinking too much. According to her, after learning from friends the next morning that she had engaged in group sex with the three men, she contacted campus police, who filed charges. Certain evidence used by the prosecutor was deemed to be ‘Brady Material’ (see Brady vs. Maryland) because the prosecutor failed to provide the defense with a recorded witness interview and an arrest record of the alleged victim. The defendants pointed out that this evidence contradicted the alleged victim’s story and questioned her credibility as a witness. In the recorded interview, a friend of the alleged victim indicated that she had been with the woman the night of the incident and that the alleged victim had not been drinking. A previous shoplifting arrest also called into question the credibility of the alleged victim. For more on the original ruling, as reported in the Daily Times, click here.

However, the judge recently reversed his own ruling that the mistrial was with prejudice, finding that although the prosecutor was “careless and negligent” in failing to disclose the evidence, and that she did not deliberately withhold the material evidence in an attempt to prevent a fair trial for the defendants or to precipitate a mistrial. For more on the reversal, click here for the story as reported in the Daily Times.

Full-Body Scanners at Airports. Necessary for Safety or an Unnecessary Invasion of Privacy?

I hope everyone had a safe and happy Thanksgiving weekend. With all the traveling over the holiday weekend, a hot topic around dinner tables has been about airport security and the use of body scanners.

This past month, Philadelphia International Airport, following the footsteps of airports around the country and Transportation Safety Administration (TSA) guidelines, installed several body-scanning machines at security checkpoints in an effort to re-vamp security procedures. Passengers are given the option of using the new scanners, or old style metal detectors followed by a frisk by a security officer. These body scanning machines allow security personnel to scan passengers for dangerous materials, weapons and any other items restricted from flights. Some passengers have expressed strong dissatisfaction with these scanners claiming they violate their personal privacy by producing a detailed three-dimensional image of the passenger’s body. Concerns arise over the images because ‘private’ areas of the body are exposed in detail including the genitals and other private areas of the body.

Attorneys for the Electronic Privacy Information Center (EPIC) have filed a lawsuit against the TSA, claiming a violation of the Fourth Amendment's prohibition of unreasonable searches. Airline passengers have been subjected to strict screening procedures over the past decade requiring passengers to walk through metal detectors, remove their shoes for x-ray, and when necessary full body frisks. The question arises over whether or not these new body scanners subject passengers to unreasonable searches and whether or not privacy rights are being violated.

I'd love to hear what criminal lawyers and others think about these body scanners. I remember the Pennsylvania Department of Corrections had them at some state prisons in Pennsylvania a couple of years ago, but they disappeared. Does anyone know what happened to them?

For more information on the Body Scanners, click here.
For information regarding the EPIC lawsuit, click here.

Inquirer Reports that the ACLU Has Sued the City of Philadelphia Over Unlawful Stop and Frisk

The Philadelphia Inquirer reported today that the American Civil Liberties Union has sued the City of Philadelphia for illegal stop and frisk policy. Stop and frisk has been around for decades, but, in order to do it, the police need reasonable suspicion that criminal activity is afoot to stop and articulable facts to believe that a suspect may be armed and dangerous to frisk. Criminal defense attorneys have been fighting issues relating to stop and frisk for just as long as its been around. To read the article, click here.

Mere Encounter Escalates Into Investigative Detention

In a recent opinion in Commonwealth v. Hudson, 2010 PA Super 96, the Pennsylvania Superior Court held that what began as a mere encounter escalated into an investigative detention when a police officer in Reading, Pennsylvania, took a defendant's identification back to his patrol car to run the defendant for outstanding warrants. The Court held that no reasonable person would have felt free to leave in that situation, and accordingly suppressed the evidence that was seized as the result of the arrest. To view Hudson, click here.

This case represents an all-to-familiar situation where a criminal attorney should keep a watchful eye on the testimony of a police officer even where he or she testifies that a defendant was "free to leave at any time". That's never the case. This was good work by the criminal lawyer on this case.

Inventory Search of a Lawfully-Immobilized Vehicle Held Lawful by the Superior Court

In a recent opinion, the Pennsylvania Superior Court held that the inventory search of an immobilized automobile, immobilized under the Live Stop program was a lawful search, even though the automobile was not yet permitted to be towed. To read the case, click here.

A Dark Secret About Window Tint

In an opinion handed down by the Pennsylvania Superior Court, they reversed a conviction for Section 4524(e)(1) of the Motor Vehicle Code (Title 75) (relating to the prohibition of certain sun-screening material) where the police officer testified that he could see into the vehicle in the daytime even though window tint was present.

The Court of Common Pleas in this case held that the window tint present on the defendant's vehicle was violative of Section 4524(e)(1) because it did not comply with the Pennsylvania Department of Transportation regulations pertaining to the amount of light that can pass through tinted windows (67 Pa. Code Sec. 175.67(d)(4). However, the Superior Court reversed that decision, relying on the plain language of section 4524 (e)(1), because it did not incorporate the more stringent requirements of the departmental regulation.

Criminal defense attorneys should be aware of the very precise language of Section 4524(e)(1), which states "No person shall drive any motor vehicle with any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle." Therefore, any testimony from a police officer that indicates he or she could see or view inside a car should result in an acquittal of this charge.

This decision can also be an important tool in motions to suppress illegally obtained evidence. For example, if an officer stops a car based on illegal window tint, but he or she can see or view the inside of the vehicle before the stop was made, there is no reasonable suspicion to believe that a violation of the motor vehicle code occurred.

Criminal attorneys, please let me know how this decision plays out in your practice.

To view this case, click here.

Criminal Lawyer Update: Defendant's Reaching Into Pocket During Mere Encounter Not Enough to Justify a Terry Frisk

In Commonwealth v. Robert Cooper, the Superior Court of Pennsylvania, with a three-member panel comprised of Judges Donohue, Allen and Fitzgerald, held that a police officer may not conduct a pat-down search of a person who reaches toward his pocket upon the officer's approach when that person obeys the officer's directive to stop before reaching into his pocket, and where the officer does not articulate any facts that would make him believe the person was armed and dangerous.

At a motion to suppress evidence, the evidence was that the defendant was standing next to a dumpster at about 9:00 A.M. The police, on routine patrol in the neighborhood where there had been complaints of people stealing copper from street dumpsters, saw the defendant and approached him. As a police officer approached, the defendant "belated his body backwards towards his left side and reached for his pocket." The officer told the defendant to stop and then conducted a pat-down search (i.e, a Terry frisk). During the pat-down, the officer felt pill-like object that he thought were narcotics and recovered eight packets of marijuana. The officer testified at a motion to suppress evidence that he thought the defendant was about to draw a weapon when he reached into his pocket.

The defendant's motion to suppress evidence (the marijuana) was denied in the Municipal Court of Philadelphia, and his petition for writ of certiorari was denied by the Court of Common Pleas. He then appealed to the Superior Court, arguing that the police did not have reasonable suspicion or probable cause to stop and detain him and that the police did not have reason to believe that he was armed and dangerous.

With respect to the defendant's first argument, the Superior Court concluded that the police's action in approaching him did not rise to the level of an investigative detention, so there was no infringement on his liberty rights. However, with respect to whether that the officer's pat-down was improper, the court agreed with his argument that the officers could have only suspected him of trash theft, and therefore they had no reason to believe that he was armed and dangerous. Even if he made a movement toward a pocket, he complied immediately when the officer told him to stop. The court reiterated the long-standing requirement that the police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous, otherwise, the catch phrase "'for our own protection'", a phrase commonly used by police officers testifying at motions to suppress evidence, becomes meaningless.

The Superior Court reversed the order denying the defendant's petition and remanded the case, holding that the marijuana should have been suppressed from evidence.

To read the full text of this criminal case, click here.

If a Tree Falls in the Woods, Does it Fall Into the Woods?

I just read a fairly recent opinion authored by Justice Castille, wherein the Pennsylvania Supreme Court ruled that 18 Pa.C.S. Sec. 2707.1 (Discharge of a firearm into an occupied structure) does not include a situation where someone discharges a firearm while inside an occupied structure.

In Commonwealth v. McCoy, 962 A.2d 1160 (Pa. 2009), the defendant entered an Old Country Buffet restaurant where he was a patron earlier in the day. The restaurant was quite busy, with about 250 customers present. The defendant approached the manager, complaining that he became ill as a result of the meal he at there that day. After some conversation, the defendant followed the manager into his office, reached into his pocket and pulled out a handgun. The manager ran out of the office, and into kitchen area. The defendant followed him into the dining area of the restaurant and fired his gun about five times in the direction of the kitchen. Nobody was injured.

Along with other offenses, the defendant was convicted of 18 Pa.C.S. Sec. 2707.1 (Discharge of a firearm into an occupied structure). He appealed to the Superior Court of Pennsylvania, which affirmed the conviction. He then appealed to the Supreme Court of Pennsylvania.

The defendant set forth several arguments in favor of reversing his conviction for discharging a firearm into an occupied structure. He first argued that if the legislature intended for the statute to include an act where one discharges a firearm from within the structure, it would have included language to this effect, but it chose not to. Also, he argued that because of the lower courts' interpretation of the statute created ambiguity, the rule of lenity, which requires that penal statutes be strictly construed, and the rule that any ambiguity be interpreted in favor of a defendant be invoked. In addition, he argued that the history of the statute was to prohibit drive-by shootings. Finally, he argued that the word "into" in the statute's title means that it requires that the firearm be discharged from outside the structure into the structure when read in conjunction with the language in the statute that the firearm be discharged "from any location".

The government responded that the plain language of the statute does not require a shooter to be outside of a structure to violate the statute, and that the language in the statute stating that the discharge be "from any location" broadens that term "into" so as to include a shooter inside or outside a structure. Also, it argued that the meaning of the word "into" meant the discharge of a bull from the gun's chamber "into" the area in which it was fired.

Reversing the defendant's conviction, the Supreme Court held that the word "into" along with the phrase "from any location" renders the statute ambiguous, and one phrase must be interpreted as modifying or limiting the other. Therefore, it held that the word "into" limited the application of the statute to situations where the shooter is outside of a structure. The lower courts' interpretation expanded the scope of the statute to situtations that the legislature did not explicitly include. The Court also found that this interpretation gives effect to all the terms in the statute, without producing an absurd result. In addition, it held that this interpretation is congruent with the law that all statutes be strictly construed, and that any ambiguity be interpreted in a light most favorable to a defendant.

Justice Eaken wrote a simple dissent, interpreting the word "into" so as not to preclude a point of origin already inside a structure. He stated, "'Into' may denote moving from outside in, but one may move 'into' a room even when one is within the room to start with. On moves into the night even when one was in the night to start with. One may proceed into the jungle despite being in the jungle already. One may introduce thoughts into the dialog that is ongoing. One need not be outside the room, night, jungle, or dialog to have the word 'into' be descriptive, and one need not be outside the building to shoot 'into' it.

Let's see if the legislature introduces a bill clarifying this statute. I won't be surprised if they do, and prohibit discharging a firearm "from any location into, or from within, an occupied structure."

Mayor Nutter Plans for Criminal Rehabilitation

Thanks to a private donation by the James L. Knight Foundation, Mayor Nutter announced this week plans to start a program known as the Managed Reintegration Network (MRN). The MRN hopes to give 400 to 500 ex-offenders a year a chance to get basic work experience so that they can gain meaningful employment after they finish the program. According to a recent article, he hopes that, along with Goodwill Industries, the city can see more companies opening their doors to help the ex-offenders assimilate back into society.

To read the full Philadelphia Daily News story, click here.

An Argument Against Capital Punishment

On February 1st, 2009, New Jersey Senator Raymond Lesniak gave a speech concerning New Jersey’s choice to eliminate capital punishment. In this speech Senator Lesniak questions the effectiveness of capital punishment in deterring violent crime. Senator Lesniak’s stance that capital punishment doesn’t deter crime demonstrates a problem with capital punishment.

To read the entire speech, click here.

New Survey of Doctors Reveals Possible Excessive Force

A new study reveals that 98% of doctors who treat recently arrested suspects for injuries believe excessive force was the cause of the injuries, and 65% of the doctors surveyed say they suspected two or more cases of excessive force per year. Those who are critical of the survey point out that the doctors surveyed are often times without any knowledge as to the actual circumstances of the arrest. Will we start to see more criminal defense lawyers using medical testimony in cases where defendants are charged with assault on police and correctional officers? Read the USA Today story here.

Governor Rendell Attempts a Parole Overhaul

Pennsylvania Governor Ed Rendell is attempting to put a plan into motion that would take away violent offenders' ability to be paroled. Rather than sentencing pursuant to Pennsylvania's indeterminate sentencing scheme in criminal court (that is, a maximum and minimum sentence, with the maximum at least double the minimum), Governor Rendell wants judges to sentence offenders to a definite number of years. Governor Rendell claims that violent offenders need to have definitive sentences is because they ". . . learn to game the system,” meaning they act reformed in order to fool the PA Parole Board to gain an earlier release from incarceration.

Critics’ primary reason against this legislation is their belief that because judges will have to give a definitive punishment that the offender’s sentence will be more towards the maximum sentence rather than the minimum sentence and this will, in turn, create even greater prison overcrowding.

Concerning the question of overcrowding in Pennsylvania prisons, the legislative movement towards rehabilitation of non-violent offenders lead by State Senator Stewart Greenleaf could turn the issue of overcrowded prisons on its head (70 percent of all Pennsylvania prison inmates are nonviolent offenders).

Click here to read more about Governor Rendell’s plan for violent offenders.

Alleged Madoff Ponzi Scheme Affects the Innocence Project

When the alleged fraudulent activities of Bernard Madoff were exposed, many non-profit organizations took a major financial hits. The Justice, Equality, Human Dignity, and Tolerance (JEHT) Foundation was one of them. The JEHT Foundation will close its doors in January, leaving many criminal justice organizations with significantly lower budgets. One of the better-known organizations nationwide is the Innocence Project, whose goal is to overturn wrongful convictions, and whose participation includes many prominent criminal defense lawyers. Many of the people the Innocence Project has helped were incarcerated for decades before newer technology such as DNA testing could prove their innocence.

Having received over $125,000 of its $200,000 annual budget from the JEHT Foundation, the Innocence Project ability to help innocent, wrongfully convicted has been greatly hamstrung, according to at least one news article. According to the article linked below, with over half of its budget lost due to the collapse of its major financier, the Innocence Project, while in no danger of collapsing, will have a far smaller role in freeing innocent people. To read more about this, click here.

To learn more about the Innocence Project, click here.

Pragmatism in State Prison Systems

With money-starved states striving to become more efficient, Virginia Governor Tim Kaine plans to take some of the weight off of the state's prison system. With Virginia having the sixth greatest growth in state imprisonment between 2000 and 2007, Kaine plans to release non-violent, model inmates up to three times earlier (90 days rather than 30 days prior to the originally intended release) in order to save money, ease overcrowding, and reward those who have shown obvious reform. This policy has received criticism from proponents of long, retributive sentences; the same people who have created these over-populated prisons and have caused significant need for prison system budget increases. It is great to see new, more efficient and fair policies finally being enacted. To read the Washington Post editorial concerning these prison reforms, click here.

Brad V. Shuttleworth, Esq., recognized as a "Rising Star"

As noted in the December 2008 edition of Philadelphia Magazine, Brad V. Shuttleworth has been recognized as a "Rising Star" by the Pennsylvania Super Lawyers directory published by Law & Politics. Only 2.5% of the total lawyers in Pennsylvania are listed as Rising Stars.

To view Mr. Shuttleworth's listing on the Super Lawyers website, click here.

Surprising Criminal Trends Develop in 2008

With the year coming to a close, the crime statistics of Philadelphia are showing a change in criminal trends. While the homicide and violent crime rates are down 15% and 4%, respectively, statistics show that property crimes have risen by 2% (more specifically, residential burglaries have increased by 16%). The possible explanations for this drastic shift in criminal activity are numerous, although police officials are only willing to partially blame dismal economic conditions. These trends, along with the recent tightening of gun laws could spell the growth of property crimes in the future. Click here to read more about it from philly.com.

A Call for Standards in Maintaining Physical Evidence

With the advent of modern forensic technology, hundreds of innocent individuals have been exonerated and released from prison. However, good technology to test physical evidence is useless if the evidence has been destroyed, discarded or is otherwise unavailable. In New Jersey, there has been an increased interest in preserving physical evidence. To read more, click here.

According to The New York Times, the United States Supreme Court recently granted certiorari in an Alaska rape case to determine whether a defendant has the right to new DNA testing of genetic evidence found at a crime scene case where new technology is more accurate than past techniques, and which could prove innocence. To read more about the upcoming review, click here.

The Impact of High School Dropout Rates on Crime

With many adolescents being unable to complete their high school education, the question that often arises is: "What they are going to do to make a living." Unfortunately, the answer to this many times is criminal activity. In addition, with unemployment on the rise, many young people may turn to illegal activity. Because of these continuing trends, it is apparent that the importance of juvenile law and justice is growing. Click here to read more about the fight against growing high school dropout rates, violent crime and gang activity among youngsters.

Stricter Gun Laws Passed

With the recent growth of violent crimes committed with handguns, Pennsylvania legislators have rushed to install tougher gun laws.

The focus of the new gun bill is intended to reform two areas. The first reform will double the minimum sentence of violent firearms offenses committed against police officers. The second area of reform concerns “straw purchases” where a person who can legally purchase firearms does so for a person who cannot legally own a firearm. The new legislation raises the statute of limitations of the crime from two to five years. Click here to read more.

Plain and Simple: Don't Talk to Police

The right to remain silent may be the most important right you have when accused of a crime, or even before being accused of a crime.

Check out this video to gain a unique view of the interrogation process from the perspective of a former criminal defense lawyer turned law professor, and a former police interrogator turned law student.  The video basically confirms that it is never a smart idea to talk to police, and that they never "just want to talk."

The Economy May Have an Impact on Bulging Court Dockets in Philadelphia

With the growing financial crisis, crime is poised to return to levels only seen in other times of economic trouble. While crime rates nationally have fell greatly over the past decade, the recent growth of crime could potentially return America’s urban communities to levels of crime not seen in years. To read more about the possible connection between economics and crime in cities, click here.

Because the budget for the court system in Philadelphia has been scaled back over the past few years, a sharp increase in crime rates will make its already bulging dockets worse. Something will have to give in order for the criminal courts in Philadelphia to handle such an increase of criminal cases, but increasing the budget for criminal courts during economically troubling times is probably not a popular proposal. We'll see.

Criminal Lawyer Update: Hand Movements Enough to Justify Warrantless Search of Automobile? Since when?

The Pennsylvania Superior Court handed down a new case this month about warrantless searches of automobiles in In re O.J., 2008 Pa. Super. 234 (Oct. 1, 2008) (No, this case is not about O.J. Simpson, but it sure would be more fun if it were. It's a juvenile case, so the minor's name is protected by using initials.).

The basic facts follow. The police were on routine patrol when they noticed the defendant's car traveling at a speed that appeared to be over the speed limit of 25 miles per hour and proceeding through a red light in a residential neighborhood. This occurred at about 8:00 P.M. After the police activated his siren, the defendant did not stop, but continued to travel, made a right turn and then stopped.

Before the police exited their patrol car, they noticed the defendant engage in a lot of movement of the arms and hands in the center console area of the vehicle. The officer also testified that there was a lot of shuffling and moving around in the center console area. The police then removed the defendant and a passenger from the vehicle, searched them for weapons and placed them in the patrol car. The police found no weapons upon their search of the two.

While the two were in the rear of the patrol car, a police officer went to the defendant's car and searched the center console area, which was partially opened, but into which the officer could not see. The officer lifted the lid of the console and found what appeared to be cocaine.

The police officer testified that police normally conduct a search when they see these types of hand movements, because the it creates a fear of the existence of a weapon. He also stated that he conducted the search because he was letting the two go without arresting them, and was only issuing a traffic citation.

The trial-level criminal court suppressed the evidence of cocaine, as it found that the warrantless search was conducted without probable cause and exigent circumstances.

The Superior Court, with an opinion written by Judge Bowes, reversed, finding that there the officer has reasonable and articulable suspicion that the defendant may have been armed with a weapon, and the search of the console area was permissible. (See Michigan v. Long, 463 U.S. 1032 (1983), which holds that, under the Fourth Amendment to the U.S. Constitution, law enforcement may "frisk" the inside of an automobile where they can articulate reasonable suspicion that there may be a weapon. This type of automobile "frisk" is followed under Pennsylvania jurisprudence.) The court stated that it used the factors of the stop being at night, the defendant was driving dangerously and did not heed the officer's inital signal to stop the car, and there were rapid hand movements near the console area.

Judge Musmanno wrote a dissenting opinion, which was joined by Judge Donahue and Judge Allen. The dissenting opinion viewed these facts as a search of the vehicle, as opposed to a vehicle "frisk", as the matter was analyzed by Judge Bowes. The dissent did not see probable cause and exigent circumstances to justify a search. Specifically, it noted that, other than hand movements by the two occupants of the car, the officer failed to state with particularity, any reasonable belief that the suspects could have had a weapon in the console area of the vehicle.

Lesson learned: When you're pulled over, keep your hands where they can see 'em.

To view this criminal case, click here.

Criminal Lawyer Update: Forged Money Order Graded as a Second-Degree Felony

In a case of first impression, the Pennsylvania Superior Court holds that a forged United States Postal Service money order is properly graded as a felony of the second degree under the forgery statute, 18 Pa.C.S. Sec. 4101. A felony of the second degree in Pennsylvania carries a maximum possible term of incarceration of ten years. The case is Commonwealth v. Pantalion, 2008 Pa. Super. 226 (Sept. 26, 2008), and can be viewed here.

United States Supreme Court Denies Certiorari for Mumia Abu-Jamal

In denying certiorari for more than 2,000 cases today, the United States Supreme Court keeps Mumia Abu-Jamal from its caseload. Abu-Jamal's death sentence was recently overturned by a federal court in Philadelphia because of a bad jury instruction, and he was seeking a new trial in his petition to the U.S. Supreme Court. To view more on this, click here.

O.J. Simpson Conviction Feels like Payback for Some

This past Friday's conviction of O.J. Simpson in his trial for armed robbery seems to have been overshadowed by attention to the economy, the presidential election and Major League Baseball post-season playoffs. However, that overshadowing neither diminishes public opinion about the case, nor does it reduce the satisfaction it gives to families of Nicole Brown-Simpson and Ronald Goldman.

There is no doubt that Simpson will be sentenced to a period of incarceration for this conviction, which will include mandatory minimum sentences for the presence of a gun during the robbery. Many feel that this recent conviction and almost certain sentence to prison provides some vindication for Simpson's acquittal in the early 1990s for his alleged involvement in the murders of Brown-Simpson and Goldman.

Simpson's defense attorney, Yale Galanter, has indicated that Simpson will appeal the conviction.

Read more about this in an article from the New York Times here.

Another Round of Fugitive Safe Surrender Begins in Philadelphia Today

Fugitive Safe Surrender began this morning at the True Gospel Tabernacle Church at 16th & Mifflin Streets. The program is set to run from Wednesday, September 17, 2008 to Sunday, September 20, 2008. Individuals with arrest and bench warrants can turn themselves in from 8:00 A.M. to 5:00 P.M. on those days.

The program is designed to provide non-violent offenders an opportunity to surrender, where they can speak with a judge and attorney at the church, and hopefully receive some favorable consideration for surrendering. The program is not for juvenile matters, domestic relations matters or traffic warrants. Most people will be released the same day, and receive a new court date to get their case back on track.

To read more about the program, click here.

By the way, if one does have an outstanding warrant and doesn't surrender, the Philadelphia Police will be conducting warrant sweeps at the conclusion of the program on September 20th. This method is not the most friendly, and usually ends up with a loss of freedom and broken-down front doors.

Back in Action!

I apologize to the Philadelphia Criminal Justice Blog fans for the two-week hiatus. Even criminal lawyers and bloggers need to give their fingers a rest once in a while. I promise this to be a fall full of robust rants, criminal lawyer updates, and quip remarks on behavior.

Please feel to e-mail me with suggestions for content, or simply make a comment to this post.

Criminal Lawyer Update: Pennsylvania's Ethnic Intimidation Law Struck Down

The Pennsylvania Superme Court has affirmed and adopted the Pennsylvania Commonwealth Court's 2007 decision in Marcavage v. Rendell, striking down Pennsylvania's Ethnic Intimidation Law, 18 Pa.C.S. 2710. The ethnic intimidation law was struck down as a violation of Article III, Section 1 of the Pennsylvania Constitution, which requires that "[n]o law shall be passed except by bill, and no bill shall be altered or amended, on its passage through either House, as to change its original purpose." The original version of House Bill 1493, ultimately enacted as Act. 143 of 2002, was created to criminalize crop destruction, and not to create a new crime for commiting an offense with malicious intent toward certain classifications of people.

To read the Commonwealth Court's opinion in Marcavage, click here.

Criminal Lawyer Update: Court Finds Exigent Circumstances Exception to Search Warrant Where Individual Identified as Armed and Dangerous

Under Pennsylvania jurisprudence, the searches and seizures clause of Article 1, Section 8 of the Pennsylvania Constitution requires a search warrant for the search and seizure of an automobile unless the police have probable cause and exigent circumstances.

In Commonwealth v. Copeland, 2008 Pa. Super. 180 (2008), decided this month, the Superior Court of Pennsylvania found that probable cause and exigent circumstances existed to search an automobile pulled over upon a routine traffic stop where a police officer smelled marijuana emanating from the automobile, saw the defendant make furtive movements, he was wanted on a warrant, and the police officer received information over police radio that the individual was considered armed and dangerous.

Let's watch to see if the defendant appeals this one. To read this case, click here.

Criminal Lawyer Update: Consent to Search Invalidated Because of Police Conduct

The Pennsylvania Superior Court in Commonwealth v. Moyer, 2008 Pa. Super. 173 (2008), holds a consent to search person and car vitiated as involuntary due to coercive circumstances.

The relevant facts of the case are as follows: Two state troopers noticed the defendant's car with one tail light with a hole in the cover, exposing white light to the rear. They then pulled the defendant over. One trooper observed movement between the driver and passenger, focused down towards the floor boards and toward the passenger side of the car.

A trooper approached the vehicle and told the defendant why he was stopped, and requested a driver's license and registration card. The trooper inquired about the defendant's destination, and testified that he appeared nervous and had bloodshot eyes. He also found that the defendant was fingerprinted once before for an arrest (not a conviction) for marijuana possession.

The trooper gave the defendant a warning for the broken taillight, returned to the car, ordered the defendant out of the vehicle and directed him to the rear of the car to show him the broken taillight and told him to get it fixed. The other trooper was standing behind them a the rear of the car. A trooper told the defendant that he was free to leave, but they then called his name out as he was about to get back into his car and asked him if he minded if the officer asked him a few questions. They did not inform him that he did not have to answer.

The defendant agreed to respond, and the officer said he was aware of the prior arrest and that he observed movement in the car. He then interrogated the defendant about whether there were any drugs or paraphernalia in the car, to which he stated there was not. The officer continued to interrogate him, and asked if he could search the vehicle. The defendant was not told that he could refuse the request for consent to search the car. He then ostensibly consented to the search.

The troopers searched the vehicle and the defendant, and found a crack pipe on his person and in the car. He then admitted to recently smoking crack cocaine. He was arrested, blood tested, and wasn't given Miranda warnings until he was at the booking center. He was charged with DUI and possession of drug paraphernalia.

The defendant then moved for suppression all evidence seized as a result of the stop, and the trial court granted suppression. The Commonwealth appealed.

What happened on appeal? Affirming the trial court, the Superior Court of Pennsylvania found that although the defendant was lawfully stopped for the traffic stop, his consent to search his person and car was vitiated by the coercive environment at the time he gave consent. The court found that his consent was not given voluntarily because he reasonably believed that he was not free to re-enter his car and drive away and that he was not free to decline the officer's request for more information and to conduct the search.

The court looked to the following circumstances in determining that his consent was not valid: 1. He was repeatedly interrogated about his origination and destination, 2) the police directed him to exit and walk to the rear of the vehicle regarding the taillight, 3) the suspicious nature of the police officer's questioning, 4) and that the police created an intimidating atmosphere for a broken taillight stop, and the reintroduction of questioning within seconds after telling him he could leave, 5) there were two armed officers standing near him while he was at the rear of the car alone, 6) the overhead lights and spotlight were directed at the defendant, 7) the officers told him they know of past alleged drug activity, and 8) he was not informed that he didn't have to answer questions or allow the police to search his car.

For a full discussion of the court's legal reasoning, click here to view the opinion.

Criminal Lawyer Update: Pre-Arrest Silence

You have the right to remain silent at any time.

In a recent opinion by the Pennsylvania Superior Court, Commonwealth v. Lettau, 2008 Pa. Super. 152 (2008), the Court held that a prosecutor's repeated references during direct examination of an investigating officer and during cross-examination of defendant's pre-arrest silence violates his 5th Amendment right to remain silent.

To read the full opinion in Lettau, click here.

Criminal Lawyer Update: Jurors, Wake Up!

Ok, pay attention. Simply making a note on the record of a juror sleeping during trial or jury charge will not preserve the issue of whether the juror's sleeping deprived a defendant of the right to a jury trial by 12 of his peers on appeal, according to the latest case on the issue in Commonwealth v. Strunk, 2008 Pa. Super. 149 (Pa. Super. 2008). The defendant's lawyer must specifically request either a curative instruction, a mistrial, the seating of an alternate juror or some other corrective measure to to properly preserve the issue for appeal.

To view Strunk, click here. To wake up, click here.

Criminal Lawyer Update: Anticipatory Search Warrants

A new case has come down from the Pennsylvania Superior Court, reversing a trial courts suppression of evidence obtained by an anticipatory search warrant. The decision, Commonwealth v. Wallace, 2008 Pa. Super. 144 (Pa. Super. 2008), finds that a warrant issued pursuant to Pennsylvania Rule of Criminal Procedure 203 (F) was sufficient where the affiant "explains . . . the manner in which the [case] was brought to the attention of [law enforcement]; the steps taken by [law enforcement] to corroborate and verify the information supplied by the informant; the timing of her investigation; and the precise nature of the triggering event, namely the controlled buy."

This case involved an informant who provided information to law enforcement that drugs would be found at a home, and that a controlled purchase of the drugs could be made. Once a police officer corroborated the information by the informant about the name of the person, she sought a search warrant. The execution of the warrant was contingent upon the completion of the controlled buy by the informant. The Superior Court reversed the trial court's order suppressing the evidence.

The problem with this case is that, at the time the police officer brought the warrant to the issuing authority (who issues the warrant), there was no proof of illegal activity. All the police had was a tip by an informant, and they list one prior successful use of the informant in the warrant. At the time the search warrant issued, the controlled buy had not yet occurred. Therefore, there was not probable cause at the time the warrant issued, which is required.

There's no indiciation that the defendant has appealed this case, but lets watch and see. To read it, click here.

Criminal Lawyer Update: Pennsylvania Superior Court Upholds the Privacy Protections of the Wiretap Act

In the Superior Court's recent decision in Commonwealth v. Deck, 2008 Pa. Super. 150 (Pa. Super. 2008), the Court strictly construes the provisions of the Wiretapping and Electronic Surveillance Act ("Wiretap Act"), 18 Pa.C.S. Sec. 5701 et seq. and upholds the privacy protections afforded by the statute for a defendant whose telephone conversation was illegally recorded.

In Deck, an alleged victim of various sex crimes records a conversation with the defendant on a cassette tape in an answering machine. The alleged victim tells him that he is on speaker phone, and he has the conversation from his office while the office door is open. The alleged victim does not obtain the defendant's consent to record the conversation, as the defendant does not know he is being recorded. The alleged victim makes the recording to prove to her mother and police that the defendant engaged in sexual relations with her.

Prior to trial, the defendant files a motion to preclude introduction of the audio recording into evidence. The trial court suppresses the audio tape, and the Commonwealth appeals to the Superior Court.

The Superior Court affirms the trial court's suppression of the audio recording in Deck. There is no dispute among the parties in this case that the telephone conversation is a "wire communication" under the Wiretap Act, a type of communication protected under the statute. However, the Commonwealth argues that the recording should not have been suppressed under the statutory exclusionary rule under Section 5721.1(b) of the Wiretap Act because the defendant had no reasonable expectation of privacy in his conversation with the alleged victim.

The Superior Court does not delve into the defendant's expectation of privacy, holding that the speaker's expectation of privacy is irrelevant to whether the evidence should be precluded. The Court comes to this conclusion for two reasons. First, the Wiretap Act does not require an expectation of privacy on the part of the speaker to protect wire communications. Second, the Wiretap Act is modeled after it Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which authorizes states to adopt wiretap statutes that afford more, but not less, protection than federal law.

The Commonwealth then asks the Court to carve out an exception in this case, which is not provided for in the statute. The Court declines to carve out an exception for an alleged sexual assault victim to prove wrongdoing to the authorities because that would ignore the clear statutory language created by the legislature in the comprehensive Wiretap Act. The legislature omitted such language, and the Court does not have the authority to add it.

This case demonstrates a clear violation of the Wiretap Act and the subsequent protection of privacy by the Court. Some may argue that the relevant evidence precluded by the Court in this case unjustly hindered a prosecution. However, the privacy concerns protected by the Wiretap Act in this case are protected, and the holding of this case will help to deter individuals from illegally recording telephone conversations in the future .

The Wiretap Act is a comprehensive statutory scheme created by the legislature. The legislature created the statutory exclusionary rule in the Wiretap Act as part of a statutory scheme to designed to deter illegal interception of wire, electronic or communications. In the world we live in, our privacies rights are constantly being stripped away in the name of law enforcement. When a court protects privacy rights, there may be a few times where someone can not by prosecuted because evidence is obtained unlawfully. However, justice is served in knowing that the upholding of privacy laws such as the Wiretap Act protects everyone from illegal invasions of privacy.

Criminal Lawyer Update: Corroborating Informant Tips

There's a new case regarding informant tips and corroboration from the Superior Court of Pennsylvania, in Commonwealth v. Brown, 2008 Pa. Super. 138 (Pa. Super. 2008).

The facts of this case are relatively straight forward. A "confidential" informant calls 911 and says "Tom" will be at an intersection, which is known as being busy, at a particular two-hour time window to distribute drugs. Police go to the location during that window of time to make observations. The police see Tom get out of a car empty handed, and return to the car with a brown paper bag and drive away. They then stop Tom in his car and find a bottle of pills in the front seat, and, after obtaining a warrant, they found more pills and a gun in the trunk of the car, and a tally book commonly used in drug dealing in the glove compartment. We'll now call Tom the defendant.

The defendant then moves to suppress the evidence seized as the result of the police stopping him. The Commonwealth puts on its case at the suppression hearing, and introduces no evidence that the "confidential" informant is reliable. The police officer just testifies that he used the informant before. Therefore, according to the court, the tip from the confidential informant is about as reliable as an anonymous tip or a tip from an anonymous informant or at most a tip from a named citizen - which all have a low degree of reliability. Then, there must be corroboration, that is, independent information obtained by the police to provide reasonable suspicion to make a stop.

The court holds that there is insufficient corroboration in this case to create reasonable suspicion. Indeed, the informant says that the defendant will be at an intersection during a window of time to distribute drugs. All the police officers see him do is stop his car, get out, and return with a paper bag, which is not in and of itself illegal and doesn't corroborate the informant's tip. Therefore, the court holds that the police did not have reasonable suspicion to stop the defendant, which led to the search of his car and seizure of contraband.

There's no indication that the Commonwealth has sought review in the Pennsylvania Supreme Court yet. To read this case, click here.

Pennsylvania Senate Confirms the Hon. Jane Cutler Greenspan to Vacant Supreme Court Seat

On June 30, 2008, the Pennsylvania Senate confirmed Gov. Rendell's nomination of Hon. Jane Cutler Greenspan to the open PA Supreme Court seat. Justice Greenspan will serve the balance of the term for the open seat.

Governor Ed Rendell Expected to Announce the Hon. Jane Cutler Greenspan as PA Supreme Court Nominee

The Legal Intelligencer reports today that Governor Edward G. Rendell is expected to announce the Hon. Jane Cutler Greenspan as a nominee for the empty seat on the Pennsylvania Supreme Court. Peter Hall, Rendell Considering Judge Greenspan for High Court Slot, The Legal Intelligencer, June 19, 2008 at 1. Judge Greenspan is a former Assistant District Attorney, and worked under Gov. Rendell during his term as Philadelphia District Attorney.

Criminal Lawyer Update: Mere Encounters of the Close Kind

In a brand new opinion authored by Judge Stevens, the Pennsylvania Superior Court holds that the interaction between citizens and a police officer is a mere encounter, where the citizens are parked on the side of a road and the officer parks a patrol vehicle about 20 feet away and shines the headlights into the vehicle and approaches the vehicle with a flashlight to "stop and see if they're all right", in Commonwealth v. Collins, 2008 Pa. Super. 124 (Pa. Super. 2008). In this fact-intensive opinion, the court finds that this type of interaction with the police is a mere encounter, which does not rise to the level of an investigative detention, and therefore there was no seizure of the person to invoke any constitutional concerns.

Unsurprisingly, the court finds that "a reasonable person in Appelle's position would be free to terminate the encounter" where the lights were shining on the vehicle in which the defendant was sitting, and the officer approached the car with a flashlight. Brilliantly, as the officer approached the car, the defendant rolled down the window, and in response to the officer's inquiry of whether everything was OK, he blurted out that they had been smoking marijuana. The officer then had reasonable suspicion to detain them for a brief investigation.

Judge Donohue filed a dissenting opinion, agreeing with the trial court that a reasonable person in the defendant's position would not have felt free to terminate the encounter with the police officer, and simply ignore the trooper, back out of the parking space and leave.

Had the court found that this encounter was an investigative detention, the evidence would have been suppressed because the officer testified that there was no suspicious activity when he approached the vehicle. Therefore, the investigative detention would not have been supported by reasonable suspicion, which is necessary under the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution. The officer filed a criminal complaint in this case charging the defendant with one count of possession of drug paraphernalia, which was what they found in the car.

I wouldn't have felt free to leave in this situation. How about you?

To view this opinion, click here.

Criminal Lawyer Update: Superior Court Says No Speedy Trial Violation Where Police Fail to Appear in Court

In a not-so-shocking case issued on June 2, 2008, the Pennsylvania Superior Court holds that the failure of the Commonwealth to bring a defendant to trial in the Philadelphia Municipal Court within 180 days does not require dismissal of charges with prejudice.

In Commonwealth v. Staten, 2008 Pa. Super 118 (2008), the defendant was charged with knowing and intelligent possession of a controlled substance and buying from persons not authorized to sell, both crimes under the Pennsylvania Controlled Substances Act. At one of the court dates scheduled for trial a police officer was supposedly unavailable because he was "serving warrants". The next trial listing was scheduled for 8 days past the 180 mechanical run date, and the defendant moved to dismiss based on a violation of Pennsylvania Rule of Criminal Procedure Rule 1013.

Applying a case which holds that where the Commonwealth brings a case to trial within 30 days of the run date, the charges should not be dismissed if the Commonwealth exercises due diligence in bringing the case to trial, Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006), the Court held that the government was diligent by completing discovery and announcing its readiness to proceed months in advance of the run date. The court noted that the police officer's failure to appear in court was beyond the control of the Commonwealth and should not defeat the Commonwealth's otherwise diligent efforts.

My question with this case is whether the Commonwealth issued a subpoena to the police officer to be present at trial, as there is no mention of that in the Court's opinion. If there was no subpoena, it is no wonder why the police officer was out serving warrants instead of being in court. Had the attorney for the Commonwealth issued a subpoena, the officer would have had to be in court, and therefore there would have been diligence on the part of the Commonwealth. Without a subpoena, I am at a loss to understand how there was diligence in this case.

Criminal Lawyer Update: Verbose Rant Gilds Recent Drug Suppression Opinion by Superior Court

In an apparent call to the Pennsylvania General Assembly to create legislation that would allow police to arrest individuals in a high-crime neighborhoods when they spot a single, isolated transaction of money for unidentifiable objects, in Commonwealth v. Wormley, 2008 Pa. Super. 107 (Pa. Super. 2008) Justice Stevens of the Pennsylvania Superior Court cites lengths of non-binding language from two dissenting opinions in Commonwealth v. Dunlap, 941 A.2d 671 (2007). The opinion states that the court feels "constrained" to hold the evidence should be suppressed, as the court is bound by the Supreme Court's holding in Dunlap, which has facts virtually identical to this case.

In Dunlap, the Pennsylvania Supreme Court held that when a police officer observes a single, isolated transaction of money for unidentified objects in a high-crime area, and even when the police officer possessed experience in drug enforcement and drug transactions, that information alone does not rise to the level of probable cause to arrest. The Supreme Court opinion in Dunlap reversed an earlier Superior Court opinion that affirmed a Philadelphia Trial Court's denial of a motion to suppress evidence where the defendant was observed purchasing narcotics on a street corner. The police in that case observed one transaction, and arrested Dunlap.

The problem with allowing police officers to arrest people after viewing a single transaction like that mentioned above is that it would be permitted in neighborhoods that the police officers themselves call high-crime neighborhoods. That desigation of "high-crime" is very self-serving in these cases, and most all the neighborhoods that the police call "high-crime" are occupied by minorities, which creates a disparate application of the finding of probable cause. In addition, allowing police to arrest for a single transaction lets the police arrest for a transaction that, on its face, appears to be innocuous. What if someone is exchanging change, cigarettes, or CDs? You wouldn't see officers running up to people in Center City Philadelphia for making change for parking meters would you? Don't people get cigarettes from others and offer a quarter?

Criminal Lawyer Update: Independent Source Doctrine

In a new PA Superior Court Case, Commonwealth v. Lloyd, 2008 Pa. Super. 101 (May 14, 2008), the Court upholds a search warrant for medical records obtained from a hospital by police after the county district attorney's office illegally obtained the records.

The Delaware County District Attorney's Office obtained blood alcohol content records from a hospital in a DUI prosecution by way of a subpoena. The defendant filed a motion to suppress evidence of his blood alcohol content because the District Attorney was required to obtain such evidence by way of a warrant because the blood test was administered pursuant to medical protocol, not at the direction of law enforcement. The defendant won the first motion to suppress.

However, the district attorney's office then contacted the local police department and directed an officer to conduct an "independent" investigation into the case. The police officer then obtained a search warrant from a magisterial district judge. The warrant enabled the police to obtain the defendant's blood alcohol results from the hospital. The defendant then filed a motion to suppress evidence again, but lost that time, and the Superior Court agreed with the trial court's denial of his motion to suppress.

The court announces the considerations required when applying the independent source doctrine, which are "(1) whether the decision to seek a warrant was prompted by what was seen as a result of government misconduct; and (2) whether the magisterial district judge was informed at all of the information improperly obtained." The independent source must be truly independent from the tainted evidence or the investigative team that engaged in the misconduct leading to discovery of the tainted evidence.

Adding to the applicable standard in independent source cases, the court went on to state that "this is not to say that an impermeable barrier must be erected between the investigators that conducted the first improper investigation and those conducting the second investigation . . . the salient question for an appellate court's review is whether and to what extent the government profited in their investigation from the initial violation, and whether the second warrant was secured by reference to the fruits of the previous error . . . the question is whether a warrant would have issued by the magistrate even absent the knowledge or evidence gleaned by that error."

The court finds that the warrant would have issued anyway upon a police officers application because probable cause is founded upon the police officers' observations on the night of the incident, i.e., the defendant's demeanor and behavior, which is adequate to support probable cause that someone was driving under the influence. The court states that those observations were obtained legally.

It is important to note that the initial, unlawful acquisition of the defendant's blood alcohol content by subpoena occurred after the majority of the first investigation. Thus, the facts supporting probable cause for the search warrant all occurred prior to the obtaining of the defendant's blood alcohol content.

To view the case, click here. As of the time of this writing, no petition for allowance of appeal to the PA Supreme Court has been filed by the defendant. I'm going to keep an eye on this one though!

Excessive and Unnecessary Force Rampant in Philadelphia Police Department?

The question of whether excessive and unnecessary force in the police department is worse than we thought will hot topic heating up in the upcoming months.

Today, according to news reports, two Philadelphia Police Officers have been charged with beating a man alleged to have been caught painting graffiti on a wall. One article, reported on Philly.com, reports that Officer Sheldon Fitzgerald and Howard Hill, III, states that the two officers "beat him, handcuffed him and tossed him in the back of their patrol car, head first". According to the article, the man lost three teeth and suffered from a broken jaw, which had to be wired shut for five weeks -- the officers will be suspended and fired, according to Police Commissioner Charles Ramsey. To view the article (Andrew Maykuth, Two Phila. Officers Charged With Beating Grafitti Artist, Philly.com, May 27, 2008), click here.

Criminal Lawyer Update: Search Warrants and the Disturbance or Destruction of Property During a Search

When police execute a search warrant on a home, the interior of that home is sometimes left unrecognizable. Broken flower pots, ripped-up floor boards and shredded Teddy Bears are some of the pictures that come to my mind when thinking about how police leave a home after a search.

If the search is pursuant to a valid warrant, the law allows law enforcement wide latitude in how much they can disturb or destroy property in the search for contraband. In a case of first impression, the Pennsylvania Superior Court in the recent case of Commonwealth v. Thevenin, 2008 Pa. Super. 96 (May 8, 2008), held that a statement in response to police questioning during the search of a home pursuant to a search warrant that leads to the discovery of the location of contraband during the search, made absent Miranda warnings, does not require the suppression of evidence of the contraband.

In this case, police executed a search warrant on the defendant's home. When they arrived, the officers told the defendant that they had a warrant and that they "were going to start taking the property apart looking for narcotics until they found some." Instead of watching his house be torn apart, the defendant told the police officers where to find the illegal drugs they were looking for. The police officers found the drugs and arrested the defendant.

No Miranda warnings were given to the defendant prior to the officers asking where the drugs were located.

The Superior Court stated that, as a matter of policy, they want to encourage police to give people the opportunity to avoid a major disturbance to their home prior to an invasive search pursuant to a warrant. The goal of that policy is to reduce the destruction of property by police. The majority opinion, authored by Judge Klein, also found that while the absence of Miranda warnings may subject statements made by the defendant in response to police questioning while in custody to suppression, the absence of such warnings does not require the suppression of non-testimonial evidence, which was drugs, or physical evidence, in this case. Finally, the court found that the police officer's statement that they would take the property apart was merely a statement of fact of what they actually were authorized to do by law, rather than a threat.

To read Commonwealth v. Thevenin, click here.

What's the Difference Between Probation and Parole?

"What's the difference between probation and parole?" This is a frequently asked question that many of my clients ask.

Both probation and parole permit an individual to serve their sentence, or a portion of their sentence, in the community, instead of in jail, which many people find attractive. Also, probation and parole are both considered acts of mercy by a sentencing judge or the parole board.

Probation is one form of punishment available to a judge when sentencing an individual for committing a crime. That is, it is an option for a sentencing judge to consider when fashioning punishment. A sentence of probation can be imposed at sentencing, and if someone violates the conditions of probation while on probation, the sentencing judge can revoke probation and re-sentence that person.

Parole, however, is an early release from a sentence that was previously imposed. Pennsylvania has what is called an indeterminate sentencing scheme. What that means is that when a judge sentences someone to incarceration, he or she has to set forth a minimum and maximum term of incarceration, where the maximum term of incarceration must be at least double of the minimum. For example, if a judge wants to sentence someone to incarceration, it may be from 3 to 6 months' incarceration, or maybe 3 to 12 months' incarceration. It could not be from 3-5 months' incarceration because 5 months is not at least double 3 months. In general, convicted offenders are eligible for parole after the minimum term has been served. If a person serves his or her minimum time of incarceration and is paroled and violates the conditions of parole, that person can be ordered to serve the remaining unexpired balance of the original sentence.

If you or someone you know has been accused of violating probation or parole, there are things that can be done to ensure that that person's freedoms are not unjustly taken away. Please call us at (215) 774-1371 if you would like to consult with an attorney about probation or parole.

Failing to Properly Transfer Ownership of a Gun or Firearm Can End With Devastating Consequences

PA Attorney General Tom Corbett and Philadelphia District Attorney Lynne Abraham have devised a joint task force about a year-and-a-half ago called force called the Gun Violence Task Force ("GVTF"). Within the GVTF, there are veteran police officers, Attorney General Special Agents, and Assistant District Attorneys who work on gun cases, day in and day out. Part of their job is to prosecute people who don't transfer the ownership of a firearm the proper way.

For example, if an individual wants to transfer ownership of a handgun, that person can only lawfully do so at a licensed firearms dealer. The dealer will then conduct the proper background checks with the Pennsylvania State Police and complete the proper paperwork. If you don't transfer the firearm the right way, you can face stiff penalties. For example, a person who makes a simple violation of the proper method of transferring a handgun can face up to five years in prison for a second-degree misdemeanor. In reality, most people with no prior record will be looking at probation for a first violation. However, any second or subsequent offense for an illegal sale or transfer is subject to a mandatory minimum jail sentence of five years of incarceration! Therefore, there's a big difference in the punishment for a first and second violation.

Therefore, if you have any questions about how to lawfully transfer a firearm, contact a licensed dealer. They know the process, because they do it every day and are the only people permitted by law to conduct the transfer.

If law enforcement or the GVTF has contacted you regarding an investigation, or if they tell you that they "just want to ask you a few questions", remember that you don't have to talk to them. You can call an attorney first, and make sure that if you do wish to speak to law enforcement your statements will not be used against you in court. The choice to speak with law enforcement is yours, and many people speak to them thinking that because they made an honest mistake or that if they cooperate they will not be prosecuted. This is often an unwise choice.

If you are accused of unlawfully selling or transferring a firearm, of if law enforcement "just wants to ask you a few questions" feel free to call us for legal assistance.

Criminal Lawyer Update: Superior Court Upholds District Attorney's Discretion to Withdraw Criminal Charges from Private Criminal Complaint

On April 23, 2008, the Pennsylvania Superior Court issued a decision in Commonwealth v. Michaliga, 2008 Pa. Super 78 (2008), which reaffirms that the District Attorney's Office's has the sound discretion to approve or disapprove criminal charges commenced by private criminal complaint.

What is interesting about this case, is that the District Attorney ("DA") of Luzerne County initially approved the charges in the private criminal complaint. After review by several Assistant DAs, their office felt that the alleged victim had adequate remedies available in civil court because the case really involved a contract dispute and was civil in nature, and withdrew the charges. The private criminal complainant then challenged the DA's decision, and the trial court ordered the DA to prosecute. On appeal, the Superior Court disagreed with the trial court.

In an opinion by Judge Allen, the Court reiterated that, in challenging the DA's decision to withdraw the charges, the private criminal complainant must prove that there was an abuse of discretion where the DA's decision amounted to bad faith, fraud or unconstitutionality, which is a heavy burden to overcome. The court noted that there is a presumption that the DA acted in good faith in approving or denying a private criminal complaint, and the fact that there were adequate civil remedies available was sufficient reason for the decision not to continue with prosecution in this case.

To read Michaliga, click here. If I had to state just one good reason why the holding in this case is good, it would be that we don't want to force our prosecutors to prosecute people they don't want to prosecute. DAs and Assistant DAs hold a lot of power when it comes to the prosecution function of their job. If their office has good reason not to prosecute, and public sentiment says otherwise, we want the DA to be able to do the unpopular thing. Why? Because the general public would then get to decide who gets prosecuted and who doesn't. Also, the judge in any particular case doesn't know the facts of the case like those who conduct the investigation and maintain a file on it, so judges shouldn't get to decide who the DA prosecutes. If the DA, who is in the business of prosecuting, says don't prosecute, shouldn't we listen?

Overcrowding in Philadelphia Prison System Leads to Another Lawsuit

Another lawsuit has been filed against the Philadelphia Prison System for its failure to get its act together and fix deplorable conditions. As reported on philly.com yesterday, the suit was filed in federal court on Monday on behalf of 11 inmates, and the attorneys are seeking to certify the lawsuit as a class action on behalf of all inmates in custody under the Philadelphia Prison System. See Maryclaire Dale, Lawyers Sue Anew Over Prison Overcrowding in Philly, available here.

There was also a recent lawsuit where the Hon. R. Barclay Surrick issued an order directing prison officials in Philadelphia to clean up the cells, and provided for three-inmate cells as a temporary fix, according to the article. Apparently, conditions have not changed much, as Philadelphia now houses nearly 9,500 inmates in its six major correctional facilities, which include Alternative and Special Detention, the Curran-Fromhold Correctional Facility, the Detention Center, the House of Correction, the Phialdelphia Industrial Correctional Center and the Riverside Correctional Facility. Philadelphia has the highest per capita incarceration rate, and there's no sign of that status as slowing down. (See my post on April 1, 2007 regarding the Justice Policy Institute study and incarceration rates in Philadelphia, Pennsylvania.)

To read more about the Philadelphia Prison System, click here.

U.S. Supreme Court Holds that Search Incident to Arrest Not Unreasonable Under the Fourth Amendment Just Because Arrest Violates State Law

On Wednesday, April 23, 2008, the United States Supreme Court in Virginia v. Moore (06-1082) unanimously reversed the Supreme Court of Virginia, which held that the Fourth Amendment's prohibition on unreasonable searches and seizures warranted suppression of evidence seized as the result of a search incident to arrest where the police officer did not have the authority to arrest for a misdemeanor under state law.

In Moore, during a traffic stop a police officer determined that the driver was operating his vehicle with a suspended license. The officer arrested Moore for the violation, which was a misdemeanor in Virginia, punishable under Virginia law by a year in jail and $2,500 fine. However, under Virginia law, the officer was supposed to issue Moore a summons, and not arrest Moore, because that offense was not an offense for which an arrest was authorized under the circumstances. The police officer should have only issued a ticket according to Virginia law.

The majority opinion, written by Justice Scalia, concludes that neither the history of the prohibition of unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution, nor tradition require a finding of a search and seizure violation. Justice Scalia's opinion notes that "when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt . . . [t]he arrest is consitutionally reasonable." The opinion reiterated that the safeguards afforded by the Fourth Amendment are not determined by state law. Also, it noted that states are permitted to provide more protections against unreasonable searches and seizures, but that does not change Fourth Amendment analysis.

Here, although the arrest was not authorized by state law for the particular offense, the arrest was based on probable cause. The majority held that while Virginia could have authorized an arrest for the offense but did not, the fact that the arrest was not authorized does not make it an unreasonable seizure under the Fourth Amendment.

You can read Virginia v. Moore by clicking here. The majority's holding in this case permits a search incident to an unauthorized arrest. That is, where a police officer does not have the authority to arrest for offenses in his or her presence under state law, for relatively minor offenses for instance, contraband found as the result of a search incident to an arrest is not a violation for purposes of the Fourth Amendment. However, many states afford more protection under their individual constitutions.

In Pennsylvania, if an arrest is not authorized for a particular offense, any evidence seized as a result of a search incident to that arrest may be suppressed. See Commonwealth v. Bullers, 637 A.2d 1326 (Pa. 1994). Thus, in Pennsylvania, defendants and defense lawyers must be aware of a police officer's authority to arrest when contraband is found after the arrest pursuant to a search.

A Yes to Question #2 on Today's Ballot Will Permit Police Commissioner to Pick More Top Commanders

Question #2 on today's ballot states: "In order to provide the Mayor with flexibility to enhance government operations, shall the Philadelphia Home Rule Charter
be amended to allow for additional management-level deputies,
exempt from civil service, in City departments?"

For example, voting yes to this question will allow each city department to employ up to ten deputies exempt from civil service requirements. This will give them more flexibility in hiring, and expand their ability to pick their own staff. Police Commissioner Charles Ramsey, for instance, would be able to personally pick up to ten top-ranking commanders as exempt from civil service. The way the Philadelphia Home-Rule Charter is currently written, it permits only two deputies per city department.

To read the two ballot questions and to get plain language explanation, check out the Committee of Seventy website at http://www.seventy.org/hot-topics/-2007-election-information/ballot-questions-and-plain-english/.

Judge Issues a Temporary Restraining Order, Enjoining Enforcement

No sooner do I make a post about Lynne Abraham, Esq.'s view on Philadelphia's newly enacted gun laws do I learn that the Hon. Jane Cutler Greenspan issued a temporary restraining order ("TRO") to block enforcement in National Rifle Association, et al. v. City of Philadelphia, et al. For the story, according to philly.com, click here. (AP, Judge blocks Philadelphia from enforcing new gun laws, available at http://www.philly.com/philly/wires/ap/news/state/pennsylvania/20080417_ap_judgeblocksphiladelphiafromenforcingnewgunlaws.html)

A TRO is issued pending a permanent injunction hearing to maintain the status quo. However, a TRO can only be issued where there is a showing that there is likelihood of success on the merits of a case, which means that the judge in this case is already leaning towards striking down the city's new gun-control laws.

Philadelphia District Attorney Lynne Abraham at Odds with Philadelphia's New Gun Laws

Philadelphia enacted five new gun laws last week, which require owners of firearms to report lost or stolen firearms, ban assault weapons, restrict purchases to one per month, permits petitions to search premises for seizure of weapons and prohibits those subject to certain restraining orders to possess or receive a firearm during the term of the order.

However, according to philly.com yesterday, Philadelphia District Attorney Lynne Abraham believes the city's new gun laws are unconstitutional. In addition, the story says that Abraham will not enforce the city's newly-enacted gun laws. To read the story, click here.(Joseph A. Slobodzian, D.A. says she cannot enforce Philadelphia's new gun laws, Philly.com, Apr. 16, 2008, available at http://www.philly.com/dailynews/local/20080416_D_A__says_gun_laws_unconstitutional__won_t_prosecute_them.html)

Abraham is correct, and the Philadelphia Crimes Code, 18 Pa.C.S. Sec. 6120 (Limitation on the regulation of firearms and ammunition), specifically prohibits Philadelphia County from enacting gun laws that regulate firearms in this way. The relevant provisions of that statute state: "No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth." This issue has already been litigated in Ortiz v. Philadelphia, 681 A.2d 152 (1996) and the city lost. To view the Ortiz case, click here (I can't vouch for the accuracy or completeness of the contents of the case, as the site to which I link is not the Administrative Office of the Pennsylvania Courts, but it looks OK at first glance).

Attorneys and Clients Sue Over Grossly Inadequate Funding

Four attorneys who perform court-appointed representation in Philadelphia County and a few of their clients sued the City of Philadelphia, the Court of Common Pleas of Philadelphia County, Mayor Michael Nutter, Judge C. Darnell Jones, II, and Judge D. Webster Keogh for civil-rights violations on April 10, 2008, for inadequate funding for court-appointed counsel in Philadelphia County. The lawsuit was filed by Attorney Samuel C. Stretton, Esq., on behalf of the four lawyers and seeks declaratory judgment and injunctive relief. To read more about this lawsuit on Philly.com, click here. To read more about this lawsuit on ALM’s Legal Blog Watch, click here.

Stricter Penalties for Possessing a Gun with an Altered Serial Number Passes the State House

According to an article on Philly.com, a Pennsylvania House Bill passed yesterdat that would increase the penalties for individuals convicted of possessing a gun with an altered serial number. The bill had a number of other provisions related to firearms and passed the House 200-0. (Mark Scolforo, Greater penalty for having gun with altered serial number passes, Philly.com, Apr. 8, 2008, available at http://www.philly.com/philly/wires/ap/news/state/pennsylvania/20080407_ap_greaterpenaltyforhavinggunwithalteredserialnumberpasses.html)

Philadelphia Has the Highest Rate of Individuals Incarcerated

I wish that this were an April Fools' joke, but its not. The Philadelphia Daily News reported today that the Justice Policy Institute has released a new report stating that Philadelphia has the highest rate of individuals incarcerated per capita. The report, entitled Jailing Communities: The Impact of Jail Expansion and Effective Public Safety, states that there were 602 people incarcerated in Philadelphia per 100,000 residents in 2006. (Catherine Lucy, Study: Philly's tops in jailing rate, Philadelphia Daily News, Apr. 1, 2008, available at http://www.philly.com/dailynews/local/20080401_Study__Philly_s_tops_in_jailing_rate.html)

This isn't surprising, considering the recent study conducted by the Pew Center on the States, which concluded that there are nearly 1 in every 100 adults incarcerated in the United States. Read more about that study here.

Mayor Nutter Names New City Prisons Commissioner

The Philadelphia Inquirer reported today on philly.com that Mayor Nutter recommended Louis Giorla for the permanent post as the City Prison Commissioner. Giorla has been the acting Prison Commissioner since January, when Nutter took office. To read the article, click here.

Criminal Lawyer Update: A Gun in Only the Hands of a Co-conspirator Can Buy a Deadly Weapon Enhancement at Sentencing

In Commonwealth v. Phillips, 2008 Pa. Super. 30 (2008), the Superior Court of Pennsylvania reaffirms this month that the deadly-weapon enhancement contained in the Pennsylvania Sentencing Guidelines, 204 Pa.Code Sec. 303.10, can be applied to an unarmed co-conspirator. When the deadly-weapon enhancement is applied, the sentencing judge's discretionary range of time to sentence a defendant greatly increases.

In this case, two men approached the robbery victim. On man carried a handgun and told the victim to empty his pockets, and the two men took the victim's belongings and fled. In upholding the trial judge's application of the deadly weapon enhancement, the Superior Court reasoned that the defendant appealing the case was in the immediate vicinity of his co-conspirator when the gun was used to threaten the victim, and he had knowledge of the gun and could have easily been given or taken the gun at any moment during the robbery.

At trial, attorneys should be mindful of the deadly-weapon enhancement if it appears that this will be an issue at trial and fashion a cross examination accordingly.

Click here to read the case.

Treatment of Prisoners Looking Worse and Worse

According to an article in the New York Times, the Defense Department has reported nearly 50 destroyed video tapes documenting interrogations of two terrorism suspects, including footage of forcible gagging. After the Pentagon review that was sparked this January when the CIA acknowledged the destruction of certain videos of interrogations, it appears that more interrogations of terrorism suspects were made. It is still unclear whether the other videos were destroyed or not. Click here for the article. For a good description of waterboarding, click here.

Criminal Lawyer Update: Lines in the Sand for Hot and Fresh Pursuit

The facts of this case present a great example of how movies can mislead -- and Judge Bender of the PA Superior does a fine job of pointing that out in this DUI case by evoking a scene from Smokey and the Bandit in Commonwealth v. Hilliar, 2008 Pa. Super. 22 (2008). In Hilliar, a police officer ran a car's tags, and learned that the owner of the car had a suspended license. The officer had information on the description of the owner of the car and the operator of the car fit the description.

Then, suspecting that the owner of the car was driving with a suspended license, the police officer made the decision to stop the defendant while he was within his municipal limits of West York Borough, but didn't get the stop done there. The police officer followed the defendant through an intersection and decided not to actually initiate the stop until the driver passed the intersection for safety reasons. On the other side of the intersection, the officer hit the overhead lights and sirens and initiated a vehicle stop. The other side of that intersection, however, was past the Borough line. Although the defendant was then stopped for suspicion of driving with a suspended license, once the police officer approached the car there were signs that the defendant had a few too many drinks before getting behind the wheel, and the police officer arrested him for DUI.

The defendant asked the court to suppress evidence obtained from an unlawful stop, claiming the the police officer violated the Municipal Police Jurisdiction Act ("MPJA"). The trial court didn't agree and neither did the Superior Court. The Superior Court held that, although the police officer did not form probable cause to believe that a crime was being committed, and probable cause is required under the MPJA before a police officer can engage in hot and fresh pursuit over municipal lines, this was a "relatively minor infraction" by the police officer and that the suppression of evidence was not warranted.

In its reasoning, the Superior Court noted that the MPJA must be construed liberally to promote public safety while maintaining police accountability, and should not be used to benefit defendants by allowing them to suppress evidence on technicalities. However, the best part of the Court's reasoning was its reference to Smokey and the Bandit, stating: "[The defendant] would have this Court hold that law enforcement officers should step on the brakes at the borough line and watch the suspected criminal drive away on safe ground."

Although I like it when the suspects cross jurisdictional lines and taunt the police from the other side in movies, I guess it doesn't work in real life. Don't try this at home! You can read the case here.