Federal Post-Indictment Criminal Conduct

FEDERAL SEX OFFENDER PATTERNS OF ACTIVITY

The federal defendant who pleads guilty is under an obligation to conduct themselves in a manner, amongst other things, that is not in violation of United States Sentencing Guideline § 4B1.5(b). This provision applies to defendants who “engaged in a pattern of activity involving prohibited sexual conduct.”
The exact language of § 4B1.5(b) states: In any case in which the defendant’s instant offense of conviction is a covered sex crime, neither §4B1.1 nor subsection (a) of this guideline applies, and the defendant engaged in a pattern of activity involving prohibited sexual conduct:

(1) The offense level shall be 5 plus the offense level determined under Chapters Two and Three. However, if the resulting offense level is less than level 22, the offense level shall be level 22, decreased by the number of levels corresponding to any applicable adjustment from §3E1.1.
The section addresses Congressional intent to proscribe the conduct of a defendant charged with sex crimes and for which an indictment or a guilty plea to an information does not stop a defendant for acting out on their compulsions. The guideline provision is very clear. The court and pre-trial service personal are to shut down and stop a defendants conduct and appetite for sex. Any sexual conduct becomes a prohibited sexual act. Any illegal sexual conduct therefore constitutes violations of the bail conditions in federal sex offense prosecution. The bail conditions typically include computer monitoring, curfews, no contact with minors, and, obviously, no viewing any type of legal or illegal pornography. These violations will subject a defendant to severe increases in any potential federal sentence.

A recent case illustrates the importance of compliance with the law and curtailing any illegal sexual conduct pending sentencing. Initially, the defendant was found to possess sexually suggestive text messages to and from a fourteen-year-old girl in Cambria County, Pennsylvania. A search of the defendant’s computer and cellular phone yielded three videos and fifty-one photographs of the girl in various states of undress and masturbation, as well as another pornographic video involving a different minor. On October 12, 2007, The defendant was arrested and charged with statutory sexual assault and child pornography offenses.

Upon posting bail the defendant began exchanging nude photographs and explicit videos with a fifteen-year-old girl from North Carolina, with whom he eventually initiated contact and left the federal jurisdiction, which conduct violated his bail conditions. When arrested several days later, on Defendant’s cell phone was a video of defendant and the girl engaging in sexual intercourse.

Although the Defendant had previously plead guilty to the first offense, at sentencing the pre-sentence report and the government argued that § 4B1.5(b) applied based upon the post indictment conduct, thereby increasing Defendant’s potential sentence by 5 levels, or to 220 months. The appellate court upheld the application of the enhancement and, ultimately, the sentence of 220 months.

The moral of this story is that under any federal prosecution and subsequent sentence, a defendant’s post-indictment conduct is always relevant at sentencing. If a defendant’s conduct can’t be controlled, remaining in custody pending sentencing may be the best option in light of the extensive exposure violations of the bail conditions and engaging in new criminal conduct, whether found guilty or not, can have on an original federal sentence.

Types of Criminal Cases

According to the FBI, crime rates in our region have held relatively steady over the past fifteen years. However, the lingering recession has resulted in an increase in corporate and government agency scrutiny of their financial performance, operating expenses, and the appropriateness of beneficiary payments. It is this oversight, not an increase in criminal activity, that correlates to a tsunami of economic crime prosecutions. Our attorneys have observed a dramatic increase in five distinct types of prosecutions: medical, insurance and prescription fraud, bank fraud, corporate work place embezzlement, government employee/contractor theft and collateral administrative professional license suspension proceedings.

We represent many physicians, chiropractors, pharmacists, and physical therapists. These clients have experienced overwhelming pressure from insurance companies, Department of Health and Human Service inspectors and state insurance departments. Allegations of billing fraud for unlicensed medical treatments, prescription and insurance fraud for ghost services, and drug delivery are common. The sources of these investigations include unhappy clientele, suspicious insurance adjusters, and pro-active special investigative units of insurance companies. Federal narcotic indictments and state related insurance fraud and theft prosecutions are increasing every day. One need only open the newspaper to read about another doctor or pharmacist charged with unprofessional and illegal conduct.

Here, in addition to jail, professional licenses, prescription writing capabilities, and Medicare and Medicaid billing authorization are immediately at risk, even prior to conviction. Our legal practice in this medical licensing subspecialty has risen one hundred percent over the last year. These high profile clients represent a significant catch for any federal or state prosecutor. Significant legal issues need be addressed emergently. In these cases we spend a significant time contesting federal or state forfeiture proceedings of personal and business assets. Various government agencies will seek forfeiture not only for punitive reasons, but to recoup improper insurance payments and payment for the costs of prosecution. These civil proceedings compound the loss of the professional license.

Recently completed mortgage fraud investigations originating from the 2008 housing bubble are spawning numerous federal prosecutions of mortgage providers and their related participants. Common threads in many of our cases are range from allegations involving sales of fake properties, fraudulently inflating property values, property flipping, fraudulent appraisals, and equity skimming to straw buyer mortgage fraud and foreclosure rescue scams. These cases typically carry federal criminal charges of committing, and conspiring to commit, bank fraud, wire fraud, mail fraud, money laundering, and honest services. Our attorneys are seeing increases in cases that center upon jumbo/non-conforming loans, low/no doc loans, liar loans (stated income loans), home equity line of credit, and secondary market/subprime loans from 2005 and after. Questions of who is the victim, who bore the loss, the materiality of the loss, the actual value of the property in question, the veracity of all bank documents submitted, and the intended loss are issues common to each of these types of cases.

White and blue collar employees alike began committing work place theft at the beginning of the 2009 recession. These schemes are now being discovered through management changes, internal audits, and basic expense analysis. The theft offenses include extensive personal use of shipping accounts or company credit cards, submission of fabricated invoices from fictitious entities, or paying personal bills through company electronic bank payments. Potential criminal charges in these cases range from wire fraud, identity theft to forgery. The uptick in this area of criminal defense practice started in 2010, after the first wave of corporate downsizing and its associated work place managerial changes and operating board internal investigations. It continues to this day as more and more work-place frauds are being uncovered.

On the quasi-governmental front, our practice has seen elevated oversight of social service professionals either being investigated for, or charged with, theft from state administered Medicare and Medicaid programs. Many of these cases involve independent contractors hired by separate staffing agencies to provide in-home occupational social services to qualified low-income families. The allegations include overlapping hourly bills submitted by the service provider. Theft amounts range from under ten thousand dollars to over hundreds of thousands of dollars. Here, too, these prosecutions result not only in criminal charges but also in collateral sanctions by state professional licensing authorities and potential exclusion from state administered welfare programs that disburse federal Medicare and Medicaid funds.

Separately, there has been an increase in state investigations and prosecutions for food stamp and welfare-benefit theft. These cases have involved our clients who are government employees and are accused of either fabricating welfare clients to secure improper food stamps, rent, and emergency financial benefits or granting incorrect benefits for actual beneficiaries in exchange for a percentage of the overpayment of benefits. These complex financial investigations last many months and look back over several years of an accused employee’s work place conduct.

Similarly, our small retail food store clients that participate in federal food stamp programs have experienced increased undercover enforcement of Department of Agriculture regulations. A greater percentage of our clients are being charged with fraudulent schemes to process food stamp vouchers into cash for a fee. In these investigations, the government attempts to minimize fraud through criminal prosecution and exclusion from future participation in the food stamp program. Restitution is pursued through seizure of personal and business assets and placement of liens on both personal and business real property and bank accounts. Representation in these matters starts with addressing the criminal charges and possibly maintaining participation in the Food Stamp program. Thereafter, removal of liens on real estate and bank accounts and contesting any forfeiture of non-business related assets is paramount to each client.

The investigators’ pattern of approaching the target in these fraud investigations is the same; appearing at the target’s home, late in the day, seeking a non-confrontational conversation with the employee, pharmacist, doctor, or small business owner. If any admissions are secured, then the target is advised to retain counsel. If the target either denies the allegations or fabricates a story, an obstruction charge is added and a target letter is issued. We preemptively advise all clients that if they are contacted by any investigating authority to identify us as their counsel and ask for a meeting at more convenient time.

Our role as counsel is then immediately clear to any investigator and the client. We then extensively interview the client, timely respond to all investigative queries, determine if pre-arrest cooperation is in the best interest, coordinate any imminent surrender, timely respond to the emergent administrative licensure filings, and legally rally the client’s assets before seizure. Thereafter, issues such as bail, an indictment, business closure or ex parte license suspension proceedings begin to present themselves in short order. Choosing appropriate and experienced counsel is paramount.

Juvenile MEgan’s Law update 2012

On December 20, 2011, Governor Corbett signed into law SB 1183 (1857) as Act 111 of 2011 (Megan’s Law IV). The law makes extensive revisions to Pennsylvania’s classification and registration requirements of adult and juvenile sexual offenders. Juvenile registration responsibilities are now extensive and violation consequences severe. The revised classification and registration matrix can be found on the Pennsylvania Sentencing Commission’s website, www.pcs.la.psu.edu, in the About the Commission, Meeting and Materials page, item sixteen.
The revised registration scheme now requires previously adjudicated fourteen year or older juveniles, not subject to Megan’s Law, but whose criminal acts are now classified and fall within Megan’s law, to be subject to Megan’s Law if they are under supervision (jurisdiction) of Juvenile Court on December 21, 2012. Also, after December 20, 2011 any juvenile who admits to, or is adjudicated delinquent for, committing a major sex offense will be subject to Megan’s Law if they are under court supervision after December 21, 2012.
A “Juvenile Offender” is an individual 14 years of age or older after December 21, 2012, who is adjudicated delinquent for committing a major sex offense or any time prior to that date was adjudicated delinquent for committing such an offense, regardless of age at the time the offense was committed, and as of December 21, 2012 is still under court supervision.
Juvenile Offenders must now register for life (with quarterly confirmation), receive lifetime monthly counseling, and are subject to the same community notification requirements as adults. It is a separate, first degree felony offense for the Juvenile Offender to knowingly fail to comply with any post-adjudicatory treatment and/or registration requirement. 18 Pa. C.S.A. § 4915.
Arrest and detention without a warrant is possible if the investigating officer has probable cause to believe a registration violation has occurred. Id. Other registrants subject to either fifteen or twenty-five year registrations commit felonies of the 3nd and 2rd degree, respectively, if they knowingly fail to register. It is a first degree misdemeanor, as well as a violation of court supervision, for lesser registrants who fail to comply with all treatment requirements. Id.
Depending on the supervisory tier classification, mandatory minimum incarceration of between two and five years shall occur for the registrant, adjudicated or convicted, who fails to register for the first time. A second or subsequent conviction for failure to register carries with it a mandatory minimum jail term of twenty five (25) years to life, depending on the underlying criminal offense. 42 Pa.C.S.A. § 9718.4.
If the Commonwealth provides notice of intent to proceed with the mandatory minimum sentence after a conviction or adjudication for failing to register, the court shall impose at least such minimum sentence. 42 Pa.C.S.A. § 9718.4 (C). If the court does not, the Commonwealth has a right of appeal and the appellate court shall vacate any deficient sentence and remand with instructions to impose at least the mandatory minimum sentence. 42 Pa.C.S.A. § 9718.4 (D).
Forfeiture of any personal or real property that the court finds aided or assisted the commission of the major sex or failure to register offenses is now possible. This means houses and cars in addition to computers and other more typical instrumentalities of the crime.
Most significantly, the reclassification scheme fundamentally alters the post-adjudication lifetime supervision compliance requirements of all juveniles, regardless of whether they are in custody or supervision on their 20th birthday. Juvenile Offenders, “sexually violent delinquent children”, and juveniles previously civilly committed are now required to be annually psychologically assessed and are exposed to yearly involuntarily civil commitment. 42 Pa.C.S.A. § 6403. Importantly, sexually violent delinquent children are those children, regardless of what sex offense they were adjudicated of committing, who have been assessed as such by the Sex Offenders Board.
At a civil commitment hearing, the Commonwealth must prove by clear and convincing evidence that “the person has a mental abnormality or personality disorder which results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence.” 42 Pa.C.S.A. § 6404(D). If the court makes such a finding, it shall immediately commit the individual for one year for treatment, with only an annual review.
If the offender is released from involuntary civil commitment, there is an additional year of involuntary outpatient treatment, with extensive supervision restrictions, including polygraph testing, prior to discharge from court supervision. 42 Pa.C.S.A. § 6404.2. A juvenile, or adult by now, who violates any term of the out-patient treatment plan shall be judicially recommitted for a year without a hearing upon presentation of such violations to the court. 42 Pa.C.S.A. § 6404.2(E).

Assault’s Against Police with a Gun and Mandatory Sentences

On October 17, 2008 the legislature enacted two related sentencing modifications. Under provision 42 Pa.C.S. § 9719.1 (2012), the Legislature enacted a mandatory minimum sentence of twenty years in jail for those persons convicted of the first degree felony against a police officer, under the specific statutory charge in 18 Pa.C.S. § 2702.1(a) (relating to assault of law enforcement officer) — not less than 20 years.

In conjunction therewith, the legislature amended § 2702.1(1) to read § 2702.1. Assault of law enforcement officer: (a) Assault of a law enforcement officer in the first degree. –A person commits a felony of the first degree who attempts to cause or intentionally or knowingly causes bodily injury to a law enforcement officer, while in the performance of duty and with knowledge that the victim is a law enforcement officer, by discharging a firearm.

Further, the law now provides at § 2702.1(b) Authority of court in sentencing. –There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

As well, the statute provides at § 2702.1(c) Appeal by Commonwealth. –If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section. 18 Pa.C.S. § 2702.1 (2012), Act 2008-131 (H.B. 1845), P.L. 1628, § 1.1, approved Oct. 17, 2008, eff. in 60 days.

Significantly, this new mandatory minimum sentence is a second mandatory minimum sentence that seals with any offense committed with a fire arm. If a person is convicted of the general firearms offense but not convicted of Aggravated Assault charge against the police office, there is still a mandatory sentence. 42 Pa.C.S. § 9712 (2012) (a) states: Mandatory sentence. –Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.

There is not a trial on these issues. Rather, the law provides, (b) Proof at sentencing. –Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

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.

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.

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.

Pennsylvania Legislature Seeks to Expand the “Castle Doctrine”

On November 27, 2010, Govenor Rendell vetoed a bill that significantly altered self-defense law in Pennsylvania.  The bill, which easily passed both the Pennsylvania House and Senate, expanded the “castle doctrine” which permits citizens use deadly force in their homes or offices when presented with a threat of death or bodily injury without requiring an attempt to retreat.  This doctrine is called the “castle doctrine” because it is premised on the idea that a person’s home is their castle and the law should not require individuals to flee from intruders threatening them in their own home.  The proposed law expanded this rule to public areas with complete disregard for the theoretical basis for the doctrine.  By passing this bill, the Legislature has signed off on the use of deadly force without searching for safer alternatives. 

Governor Rendell vetoed the “stand your ground” legislation, stating, “The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a ‘shoot first, ask questions later’ mentality.  I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves.”

The use of deadly force is very fact specific.  Citizens of the Commonwealth of Pennsylvania have always had the right to self defense if faced with life threatening force, whether in one’s home or not.  The current law merely requires that, when in a public place, a potential shooter must attempt to avoid a fatal confrontation rather than run headlong into one.  The current law sufficiently protects individuals because it only impacts cases where there is no safe alternative to the use of deadly force.  It also limits the public’s exposure to the use of deadly force by requiring individuals to seek an alternative if available.

Governor Rendell’s decision to veto the bill was supported by many law enforcement groups throughout the state including the Pennsylvania State Police and the Pennsylvania District Attorneys’ Association.    However, when Republican Governor-elect Tom Corbett takes office next year, the legislature will likely reintroduce some form of this bill.