GPS Car Tracking and Search Warrants

Where are you? Who is tracking you, your car, your phone? Who did you give permission to track you? OnStar, BMW, Apple?  Can the government place a tracking device on your car without your permission and without a judicially approved search warrant?  That answer is now NO.

In a landmark decision, in UNITED STATES v. JONES, the United States Supreme Court has held that the Government cannot place a global positioning system (“GPS”) tracking device on any vehicle without first obtaining a search warrant.  The ruling was handed down in the context of the FBI introducing evidence of defendant’s travel history, places visited and people with whom he met, which information was gathered from the tracking device.  Thereafter, that information was contained in several affidavits of probable cause accompanying search warrants for the various locations that Defendant visited.  Significant amounts of drugs and money were found at the locations for which the warrants were obtained. The Defendant was ultimately convicted of drug distribution charges and sentenced to life in prison.

The court held that the placement of the GPS device on a target’s vehicle,and its use of that device to monitor the vehicle’s movements, constitutes a “search.”  It was a search, the court held, because the automobile is an effect of personal property from which the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  The court equated the placement of the tracking device on the vehicle to that of a trespasser who walks on your property without permission.  English Common Law has long recognized such a trespasser subject to sanctions for his trespass, even if no damages occurred.

Significantly, the concurring opinions focused on the government’s ability to secure the same travel related information from smart phone GPS programs and factory installed tracking devices (maps, car service contracts –ONSTAR – and the like).  Investigatory searches such as these must also be accompanied with a warrant and an affidavit of probable case regardless of whether there is a physical intrusion on a person’s property.  This is the same warrant requirement as is necessitated to tap your telephone in your house, office, or cellular telephone.

If the government does not get a warrant, any evidence gathered as a result of the warrantless intrusion onto your property for which you have an expectation of privacy will be suppressed.

Criminal Episode versus Criminal Enterprise

When is selling drugs not just an individual criminal act but part of a criminal enterprise?  The answer is important for those charged with this crime as it make these cases much more complicated to resolve.  Superior Court of Pennsylvania started off the new year with a bang, handing down the decision in Commonwealth vs. William Reid.   In this case, Mr. Reid was charged with selling drugs to many people on different occasions.  However, while he was being investigated by one police agency, the state police, he was not caught selling drugs to people not involved in the first case.  As a result, he was charged in a second broader case.  He claimed all sales were part of one case and the state just messed up.  The court said no, two prosecutions is ok.  Why???

The case centered on the definition of what is a former prosecution that would bar a subsequent prosecution.  The Pennsylvania Supreme Court addressed this issue in Commonwealth v. Fithian, 599 Pa.180, 961 A.2d 66 (2008).  Fithian states that in order for a former prosecution to bar a subsequent prosecution (rendering the criminal act an episode versus an enterprise) pursuant to Section 110 of the Pa Criminal Code, four elements are required: (1) the former prosecution must have resulted in an acquittal or conviction; (2) the current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution; (3) the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and (4) the current offense occurred at or near the same time.

More importantly, the issue of if the drug sales in one case constitute an episode for multiple prosecutions versus a criminal enterprise for one very large prosecution, the court stated:

These [Section 110] policy concerns must not be interpreted to sanction “volume discounting” or, as evidenced by this case, to label an “enterprise” an “episode.” [The Pennsylvania Supreme] Court has never categorized seven months of individual criminal activity, with distinct layers of illegality, as a single criminal episode; the purpose inherent in § 110 prevents such a result now. Although [Commonwealth v.] McPhail[, 547 Pa. 519, 692 A.2d 139 (1997) (plurality)] designated three months of activity a single episode, that case involved one defendant selling drugs to one undercover officer; the officer was the major mover in the determination of the conduct, its extent, jurisdiction and venue, and potential mandatory penalties. Additionally, in McPhail, the  Commonwealth conced[ed] that all the offenses arose from the same criminal episode.” McPhail, at 141. Here, over a seven-month period, appellee ran a profitable enterprise in which he stole at least 25 vehicles from numerous individuals and 11 dealerships and then resold them, creating even more victims. Much like a television sitcom, each week’s story has similar characters, producers, and continuity of storyline, but each week is a separate episode—the series of episodes is an enterprise.   Nolan, 579 Pa. at 310-11, 855 A.2d at 840.10

The lesson in these cases is make sure you have good counsel that you have properly advised of your criminal conduct so that the prosecution can be made aware of all criminal conduct if there is to be a plea.  If you are the client and you are not candid with your counsel as to the nature and extend of your criminal conduct, you are wasting your money.  This was Mr. Reid.

Pay the attorney to do the legal work; don’t second guess him or her.  Be honest with your counsel and advise them fully of your behavior so they may properly strategize your case and make informed legal decisions.

 

This case tells me that Mr. Reid did not tell his attorney all of the drugs he was selling and to whom and how much.  As such, when the attorney defended the first case, the client got hit with a second, broader case with more drugs and he was charged with the criminal enterprise counts.  Had the attorney known of all the criminal conduct, then maybe the first case would have resulted in a plea with facts that included much of the facts of the second case.  Then, a second prosecution with have been precluded.

Superior Court Refuses to Create Special Standard for Text Message Authentication

In Commonwealth v. Koch, the Superior Court reversed Amy Koch drug conviction because the trial court improperly allowed the prosecution to present evidence of text messages allegedly to and from the defendant.  In 2009, acting on a warrant obtained through information provided by a confidential informant, Cumberland County police officers executed a search warrant on the defendant’s home.  The officers seized several baggies of marijuana, several hundred dollars, and a considerable amount of drug paraphernalia.  The officers also seized two cell phones, one of which the defendant claimed was hers.  On that cell phone were thirteen text messages that referred to drug possession or delivery.  At trial, the prosecution presented these text messages as part of their case in chief in an effort to tie the defendant to the drug operation.  The defendant objected under Rule 901 of the Pennsylvania Rules of Evidence.  The trial court denied her objection, she was convicted, and appealed to the Superior Court.  The Superior Court agreed with the defendant and reversed her conviction.

Rule 901 requires authentication prior to admission of evidence.  Authentication merely means that there must be some proof that the writing is what it purports to be, that is, in order to admit the text messages, the prosecution was required to demonstrate that they were in fact messages written by the defendant.  At trial, the prosecution failed to do that.  First, there were some messages on the phone that referred to the defendant in the third person which indicates that at least as to those messages, the defendant was not the author.  Secondly, some of the messages had been deleted which created an incomplete picture of what the messages were discussing.

At trial, the prosecution relied on the fact that the cellphone was registered to the defendant for proof that she wrote the messages.  The Superior Court held that this was insufficient.  Rather than relying on “confirmation that the number belonged to a particular person,” the court sought evidence that “emails, instant messages, or text messages contain[] factual information or references unique to the parties themselves.”  If these messages contained unique identifiers such as a nickname or facts known only to the defendant, then they may have been authenticated.   This is the same standard that is and has been applied to other written documents, such as letters.  Although the Superior Court concedes that cellular phone text messages necessarily include identifying information such as the number from which a message was sent and the number which it was sent to, it also recognized that more than one person may use the same cell phone to communicate.

The Superior Court offered an alternative basis for their reversal in holding that the text messages were inadmissible hearsay.  This portion of the ruling is crucially linked to the first holding.  If the Commonwealth was able to demonstrate that the messages were written by the defendant, the messages would be admissible under the party-opponent exception to the ban of hearsay.  However, this is likely a difficult task because the authentication standard requires proof that the particular message sought admitted was written by a party, it would be insufficient to show that other messages on the phone were definitively written by a party.

Commonwealth v. Koch affects the admissibility of text messages in two ways.  First, it clearly states that there are no special rules when it comes to electronic communications, even ones that have special unique identifiers like a telephone number or IP address.  Second, it makes it much more difficult to have text messages admitted.  Although the standard is the same as for letter or other written documents, text messages lack many of the potential indicators of authorship that letters contain.  For example, most letters or notes have a salutation or are signed in some manner, even if not with a full name.  Letters may also be handwritten which could provide identifying handwriting as an alternative means for authentication.  In contrast, text messages are often abbreviated, contain no signature or salutation, and appear identical no matter who typed them out.

Read the whole opinion here.

 

Why violent “flash mob” participants could face five to ten years incarceration

In Philadelphia, over the past two summer, there have been several incidents of group violence on the streets performed primarily by groups of young people.  In response, Mayor Nutter has enacted a stricter curfew throughout Center City and in University City.  In dealing with these bursts of violence, one of the tactics discussed by the city has been to increase the number of arrests made pursuant to the curfew laws.  The theory is that by inconveniencing some parents, i.e. those who would have to retrieve their wayward youths, the City can mobilize all parents to better monitor teens late evening activities.  Another motivator should be the very serious trouble that teens participating in flash mobs or other violent street activity can end up in.  Just last month, on July 29, 2011, two separate violent incidents landed at least six juveniles in detention and one nineteen year old in jail awaiting trial.  Although all of these boys face serious charges, teens and their parents need to understand that if any of these incidents end up in adult court, the stakes are higher than anything they ever anticipated.

The recent Superior Court decision Commonwealth v. Poland discusses the five year mandatory minimum that innovative prosecutors could seek for almost any conviction stemming from this kind of violence.  In Poland, the Superior Court addressed the applicability of section 9713 of the Judicial Code which requires a minimum sentence of five years for any crime of violence that “occurs in or near public transportation” to an aggravated assault that occurred in the Gallery located in downtown Philadelphia.  42 Pa. C.S.A. 9713(a).

The defendant in Poland was a member of a “dozen or more individuals” who were present in the Gallery at 8th and Market Streets on the evening of April 2, 2008.  At some point, and apparently without provocation, the group attacked a woman walking through the area.  Once she was knocked to the ground, she was “punched and kicked by one half of the members of the group while the other half cheered them on.  The assailants then fled to a nearby subway train.”  The victim sought help from the SEPTA cashier and SEPTA police detained the subway train carrying the assailants until the victim arrived and identified “the individuals who were present at the assault, and those who actually had assaulted her.”

The Poland defendant was arrested and charged with robbery, aggravated assault, conspiracy to commit robbery, and conspiracy to commit aggravated assault.  At a jury trial, there was conflicting evidence offered about whether the defendant “was one of the assailants, was one who encouraged the assailants, or had tried to stop one of the assailants.”  Ultimately, the jury convicted the defendant only of conspiracy to commit aggravated assault.

The prosecution sought the mandatory minimum provided in § 9713(a) because conspiracy to commit aggravated assault is considered a “crime of violence” for purposes of that subsection.  Section 9713 states that:

[A] crime shall be deemed to have occurred in or near public transportation if it is committed in whole or in part in a vehicle, station, terminal, waiting area or other facility used by a person, firm, corporation, municipality, municipal authority or port authority in rendering passenger transportation services to the public or a segment of the public or if it is committed in whole or in part on steps, passageways or other areas leading to or from or in the immediate vicinity of such a public transportation vehicle, station, terminal, waiting area or other facility.

42 Pa. C.S.A. § 9713(b).  The trial court held § 9713 inapplicable and refused to apply the mandatory minimum because the actual assault occurred in “a public corridor in the Gallery, an area that contains shops and other businesses” and is separated from SEPTA’s terminal by glass double doors.  The Superior Court overturned the trial court’s determination and remanded for sentencing in accordance with § 9713.  The Superior Court specifically emphasized the language applying the mandatory minimum to crimes committed in the “immediate vicinity” of a public transportation vehicle, station, terminal, waiting area or other facility.

According to the Superior Court, the mandatory minimum applied because the “assault in this case took place in a passageway leading to and from a SEPTA station, in the immediate vicinity of the SEPTA station, while the victim was on her way to catch the SEPTA train home.”  In a footnote, the Superior Court clarified, “We acknowledge that there were other establishments in the immediate vicinity of the location where [the victim] was assaulted, and that the passageway led to and from places other than the SEPTA station.  However, the language of Section 9713 does not limit its application to passageways that lead exclusively to public transportation facilities, or to areas in the immediate vicinity of facilities that have absolutely no other possible destinations around them.”

All of which leads back to implications for anyone convicted for participation in a violent flash mob.  The Number 40 bus runs along South Street and, east of Broad, its route connects with the Number 57, 47, 23, and the Broad Street Line.  A cursory glance over SEPTA’s Center City transit map found here makes clear that almost anywhere in downtown Philadelphia is in the “immediate vicinity” of public transportation facilities.  This means that teens, especially older teens that are either over eighteen or simply more likely to be charged as an adult, could very easily face five years’ of state incarceration for participating in a violent flash mob.  This is true even if, as in Poland, the particular teen does not even raise their hand in violence, simply “cheers on” other teens; Poland was eighteen at the time of the incident and had no prior adult record.  If the hassle of picking up your curfew-violating child at the police station is not incentive enough to keep them home, the hassle of visiting them at a state correctional institution should be.

You can read the full Poland opinion here  and the full statute here.

Pennsylvania takes another shot at expanding the Castle Doctrine

Last year this blog posted about Governor Rendell’s refusal to expand the Castle Doctrine outside an actor’s residence. On June 20, 2011, the Pennsylvania Senate gave Governor Corbett another crack at the law.  Senate Bill 273 addresses the law surrounding justifiable self-defense.

The current self-defense law imposes a duty to retreat, if retreat can safely be accomplished.  However, even under the current law there is an exception when the person acting in self-defense is in their own home.  The reason for this exception is that when one retreats, one retreats to their home.  However, the Castle Doctrine acknowledges that when a person is attacked in their home or when their home is unlawfully entered, a requirement to retreat may avoid escalation to violence but is substantively unreasonable because it would require asking a citizen to leave their home in the face of criminal activity.

Senate Bill 273, which Governor Corbett has indicated he will sign into law, expands this doctrine outside the home and eliminates the duty to retreat for victims of attacks where:

(2.3) An actor who is not engaged in a criminal activity , WHO IS NOT IN ILLEGAL POSSESSION OF A FIREARM and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii) , has no duty to retreat and has the right to stand his ground and use force, including deadly force, if :
(i) the actor has a right to be in the place where
he was attacked;
(ii) the actor believes it is immediately necessary
to do so to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse by force or
threat; and
(iii) the person against whom the force is used
displays or otherwise uses:
(A) a firearm or replica of a firearm as defined
in 42 Pa.C.S. § 9712 (relating to sentences for
offenses committed with firearms); or
(B) any other weapon readily or apparently
capable of lethal use.

Although the recently passed bill contains a modification that makes the expansion inapplicable to actors who unlawfully possess a weapon at the time of the incident, the effect of the law is substantially the same as the law which Governor Rendell rejected.  Opponents of the new law fear that it will escalate violence while hampering prosecutors.  These concerns led to many District Attorneys opposing the bill.
Read the amended bill here.

Read last year’s post here.

Pilot sex offender court to open in Pittsburgh

When Allegheny County launches Pennsylvania’s first Sex Offender Court later this month, the rest of the state will be watching.  The Supreme Court of Pennsylvania chose Allegheny County (which includes Pittsburgh) as the test site for a new specialized court focused on Megan’s Law offenses and their related court proceedings.  If this model is successful, the judiciary hopes to institute it in every county throughout the state.

The program, which is modeled after a sex offender court in Buffalo, New York, directly addresses two recurrent issues with these types of cases, pre-trial delay and difficulty with reentry, while streamlining the entire process by creating judicial and prosecutorial staff skilled in the legal questions and procedures these cases encompass.

Cases first become involved in the specialized court at formal arraignment, right after charges are held for court at the preliminary hearing.  Cases will be scheduled for pre-trial conferences with one of the sex-offender court’s judges within sixty days of their preliminary hearing.  The plan also calls for expedited discovery and a brisk trial schedule with the goal of concluding these cases within approximately six months of a defendant being held for court.  On average, these cases currently take about 18-24 months to bring to trial.  Curtailing pre-trial delay is important for several reasons.  First, it  reduces the length of time between the offense occurring and the victim testifying.  This helps victims because it facilitates the healing process by allowing closure in an expedited manner rather than reinvigorating the trauma through testimony several years later.  It also limits the length of time innocent defendants must await trial to clear them name, or in the alternative, the length of time a guilty defendant may be on bail and able to reoffend.

If a defendant is convicted, through trial or a plea, this court is also designed to help rehabilitate those offenders.  If a defendant is sentenced to probation, they will follow a judicially designed program and have mandatory court appearances to ensure compliance.  In this manner, the court is similar to many drug court options available in Pennsylvania and other states.  The program will include probation officers designated specifically for sex offender court and require extensive monitoring of treatment compliance and graduated rewards and sanctions.  The goal of intensively supervised reentry is to provide a transition period where a defendant who may have been under extremely strict supervision and control in prison is placed back into the community with decreasing restrictions rather than the abrupt switch from incarceration to life on the streets.  The goal of supervised reentry is to decrease recidivism by providing tools and structure for successful reentry.

The program launches June 23, 2011.  Read more about it in the Supreme Court’s press release here and in news articles here and here.

Amnesty program for AWOL Philadelphia DUI offenders

Most Pennsylvania convictions for driving under the influence involve a mandatory jail term.  The mandatory minimum jail sentence for these offense increases with each subsequent conviction within ten years.  Therefore, although a first offense only mandates forty-eight or seventy-two hours incarceration depending on the level of intoxication, a second offense will result in either five, thirty, or ninety days of mandatory incarceration.  Unsurprisingly, while most people are able to pause their life for a five-day period, spending one to three months in jail causes extreme disruption to most people’s ordinary lives.

Different counties have addressed this problem in different ways.  Some counties have extensive intermediate punishment programs or house arrest to enable individuals to maintain employment and a semblance of their prior life.  Philadelphia County’s typical response to a hardship claim by a defendant is to permit the defendant to serve their prison term on consecutive weekends.  For a highest tier second offense, this means the defendant will turn themselves in every Friday evening for forty-five weekends in a row.  Maintaining this strict schedule for such an extended period of time requires a tremendous amount of self-discipline.

This program is an excellent opportunity but requires over ten months of timely reporting.  Many times, defendants who sign up for this program do not appreciate the impact it will have on their lives and when a slip-up occurs, they simply stop reporting.  When this happens, the probation department notes the failure to report and a warrant is issued.  Failure to report is a violation of the defendant’s probation and not only will the defendant remain incarcerated until they appear before their sentencing judge, but the violation exposes these defendants to increased jail time that they will have to serve straight, not on weekends.

However, Philadelphia County currently is offering defendants sentenced to DUI weekend sentences a unique opportunity.   Defendants who have stopped reporting for their weekend sentences should contact the attorney who represented them at trial and arrange a surrender process.   The attorney will arrange a court date to request permission to complete the original sentence without any additional penalties.  This amnesty program is a rare second chance and any defendant who has stopped reporting for should absolutely contact the attorney who handled the initial representation.

Nervous and out after dark? Better make sure your glove box has a deadbolt.

The Superior Court recently issued a troubling per curiam opinion approving a warrantless search of a locked glove box because the motor vehicle stop occurred at night in a high crime area and the driver of the car was nervous and unlicensed.

In Commonwealth v. Micking, an en banc panel of the Pennsylvania Superior Court split four to four on the question of whether the search was unconstitutional and the evidence should be suppressed.  The first panel to consider this case held that it was unconstitutional.  After the Commonwealth requested reargument, that decision was withdrawn and an en banc panel reargument was granted.

At about 8:30 p.m. in November, 2006, two police officers in a patrol car initiated a traffic stop of Defendant’s car after observing Defendant fail to signal as he made a right turn off Kingsessing Street onto Alden Street.  At least one officer approached Defendant’s vehicle and requested his license, registration and insurance information.  Defendant informed the officer that his license was suspended.  As the officer and Defendant spoke, the officer noted that Defendant appeared nervous; his hands were shaking and his voice was trembling.  The officer then removed the keys from the ignition and opened the locked glove box, while the Defendant remained in the driver’s seat.  There were two firearms inside the glove box.  Defendant was not eligible to carry firearms due to a prior conviction and one of the firearms had an obliterated serial number.  Defendant was arrested and charged with various firearm offenses based on his possession of the weapons.

The opinion in support of affirmation held that the search was not a warrantless vehicle search but, instead, was merely a “protective weapons search of the interior passenger compartment, including, as expressly permitted in Long and Morris, any containers where a weapon may be placed or hidden.”  According to the opinion, the search was permissible because it was “fueled by reasonable suspicion that [Defendant] mat have been armed and dangerous.”  As those familiar with either the federal or Pennsylvania Constitutions and readers of this blog know, suspicion that an individual is armed and dangerous will only support a Terry frisk when it is based on specific, articulable facts.  A brief review of the facts set forth above fail to indicate any information that suggests the Defendant was armed and dangerous, so it is worth repeating the paragraph where the opinion supporting the trial court explains what these specific articulable facts are:

 . . . First, [Defendant] was extremely nervous, shaking and trembling, and his voice was quivering.  There was no apparent reason for [Defendant's] extreme level of concern given the minor nature of the traffic infraction.  As we noted supra, this type of conduct displays consciousness of guilt.  Additionally, our case-law provides that a defendant’s display of excessive nervousness is a factor supporting the existence of reasonable suspicion.  Second, roadside traffic stops are fraught with danger for police officers.  As noted by the [United States] Supreme Court, “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” (quoting Long).  Third, it was approximately 8:00 p.m. on a November night, and the police officers faced a greater risk that [Defendant] could reach a weapon inside the car without being easily detected.

Commonwealth v. Micking, 2011 PA Super 45, *18-19 (citations omitted).

That’s it.  One, Defendant was nervous.  Two, sometimes people shoot cops during motor vehicle stops.  Three, it was dark.

The opinion then employs  scare tactics and suggests a scenario where the officers do not engage in this search but the scenario cannot be taken seriously.  The opinion suggests that maybe, if the officers had not searched the vehicle immediately, then they would have been waiting around for thirty minutes for a tow truck (the officers were entitled to tow the vehicle based on Philadelphia’s Live Stop program and Defendant’s lack of a license).  During this wait, the Defendant would not have been under arrest because his lack of license would be insufficient to arrest him.  However, maybe the Defendant had another set of keys, and maybe he would be able to sneak back to the car under cover of darkness, and maybe he would retrieve the weapons, and maybe he would shoot the police officers.

Maybe.

However, maybe not.  As the opinion in support of reversal points out, the crucial issue is the conduct of the officers.  In all prior cases where a protective Terry frisk of a motor vehicle’s passenger compartment is found constitutional, the occupants of the vehicle were removed and patted down.  To paraphrase, it simply does not make sense that an officer who has fear for their safety would first check a locked glove compartment for weapons.  The decision to look in the locked glove compartment require the officers to bypass the defendant’s actual person, the area under the driver’s seat, the center console, the map pocket on the driver’s side door, etc. where the defendant might have stored a weapon and where the defendant could certainly access the weapon more easily than removing the key from the ignition, leaning over and unlocking the glove box and accessing whatever it contained.  If these places had been searched and the Defendant removed from the vehicle, the argument that the police officers were acting in a reasonable manner would have more persuasive force.  Although there would be no new facts to support a belief that Defendant was armed and dangerous (the only weapons recovered were those in the glove box) , the search would at least comport with commonsense.

Fortunately, because the court split, this opinion is not binding authority on the trial courts of Pennsylvania.  It is persuasive, however, a trial judge in Philadelphia may still look at the exact same situation and suppress the evidence because he or she recognizes the constitutional violations inherent in the search.  Defendant has also requested permission to appeal to the Pennsylvania Supreme Court.  Stay tuned for updates!

Read both opinions here.

Philadelphia DA Seth Williams announces DUI breath tests were compromised since September, 2009

In a recent announcement, the Philadelphia District attorney’s office announced that the breathalyzer evidence relied on in over one thousand cases since September, 2009 was   This is a serious acknowledgment that scientific evidence relied upon by the Commonwealth in many drunk driving cases was not scientifically reliable.

This is an important evidence problem for the District Attorney’s office.  Pennsylvania DUI laws permit a scientific test, generated by a machine called the Intoxilyzer 8000, to be the true basis for guilt or innocence, jail or no jail, in a large portion of Philadelphia DUI prosecutions.  One particular machine identified as faulty was the Intoxilyzer 8000, Serial No. 80-002187 (BBB); other information suggests the Intoxilyzer coded FFF was also faulty.  Prior to admission of this evidence, a judge determines if the evidence was properly gathered.    Once the breath test result is admitted into evidence, defendants have limited options to win their case because DUI is a strict liability crime:  with blood alcohol evidence, all the Commonwealth must prove is that the BAC exceeded 0.08 percent and defendant operated a motor vehicle.

In 1998 Federal Department of Transportation regulations changed, requiring the states to change their DUI laws by lowering the legal driving under the influence limit to a .08 BAC.  To comply with this edict, in early 2002 the Pennsylvania General Assembly amended Pennsylvania’s DUI law to punish offender’s on a sliding scale with penalties increasing for subsequent offenses and for elevated providing for a sliding scale of penalties for DUI offenders.  Based upon an accused’s prior DUI record and level of alcohol in their blood, from .08 to above .159, mandatory minimum jail times, fines, and license suspensions became varied.  As this penalty grid indicates, for example, a person convicted of a 2^nd offense DUI with the highest BAC, above .16, could go to jail for at least 90 days under new law.

District Attorney Seth Williams said those defendants convicted with this unreliable evidence will be offered new trials, but noted that some cases will hold up without the tests if they’re based on other evidence, including blood tests or officer observations.  However, the Philadelphia Police and District Attorney’s office acknowledged that the severe mandatory minimum sentences cannot be applied on these cases because the enhanced penalty evidence is not reliable.   “We screwed up, folks,” police Commissioner Charles Ramsey told reporters at a news conference. “We screwed up, plain and simple, and now we are paying for it.”  In cases based This other evidence will include the police officer’s testimony that in their opinion a given defendant was “not capable of safe driving” as provided in the general impairment provision of Pennsylvania’s DUI statute.  However, a person’s DUI conviction mandatory minimum penalties will be substantially reduced.  As the penalty grid on my web site states, the 2^nd time DUI offender’s mandatory minimum sentence will now be five days versus 90 days if there is a finding of guilt.

Please call my office to discuss any questions you have regarding this issue.

Articles regarding this recent development can be found here and here.

 

 

What makes a suspicion reasonable?

Pennsylvania’s Superior Court has devoted a number of opinions to the difference between a “mere encounters” and “investigative detentions;” particularly in the context of car stops.  Courts have long recognized that a car stop is a seizure within the meaning of the constitution.  As discussed in a recent post on this blog, all occupants of a vehicle are detained pending an officer’s investigation into the motor vehicle code or criminal code violation the officer reasonable suspected was afoot.  However, what happens once a traffic ticket or warning is written?  Is the coercive nature of the interaction over?  Or are all the occupants of the vehicle free to leave?  Most importantly, is it ok for a police officer to keep you on the side of the road after they gave you a ticket?

In a recent case handled by our firm, both the trial court and the Superior Court held that an officer needs reasonable suspicion of criminal activity to detain a driver on the side of the road after a traffic stop.  In this case, a State Trooper further detained a driver, after investigating his unlawful tinting, because he believed the driver was engaged in drug-smuggling. The Trooper questioned the driver for a few minutes and then asked for consent to search the car.  The driver provided consent and the Trooper discovered cocaine during the ensuing search.

According to the Trooper, he suspected criminal activity becuase he observed the following:

1)  excessive window tint in violation of Pennsylvania’s regulations,

2)  three cellphones, two air fresheners, one Red Bull and one 20 oz bottle of Mountain Dew;

3) the fact that the vehicle, although properly registered, was registered to a third-party from a suburb of Philadelphia;

4) the driver’s nervousness as evidence through a quivering voice and shaking hands;

5) the driver’s two prior drug-related arrests.

The trial court granted the driver’s motion to suppress held that there was no reasonable basis to infer drug-smuggling from the list of innocent information gathered by the Trooper.  Noone disputed that the Trooper personally had a subjective suspicion that the defendant was smuggling drugs and although Noone disputed that the suspicion was in fact correct (because drugs were recovered in the car), nonetheless, this evidence was suppressed because the suspicion simply wasn’t reasonable.  This decision prohibited the Commonwealth from introducing any of the drug evidence found during the search because the driver only gave permission to search during an unconstitutional detention.

The Commonwealth appealed that decision to the Superior Court.  After reading written briefs filed by both parties and hearing an oral argument in Harrisburg, Pennsylvania, the Superior Court affirmed the suppression.
Read the opinion!

Commonwwealth v Simon