DUI — Driving After Inhaling — And Expert Testimony

Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety (“FST”) and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.

DUI, Pot, Car Keys

Typically these courses are 16 hours and “train” officers about drugs in the human body, heighten their observation of suspects eyes, and instruct them on seven drug categories and the effects of drug combinations.

Courts are pushing back against the junk science these courses to teach police officers. Courts are limitting the admissibility of field sobriety tests and officer conclusions of impairment based upon drivers “passing” or “failing” a FST.

Commonwealth v. Gerhardt, 477 Mass. 775 (2017) is the first case in the nation to address this issue. In this case the court considered the admissibility of FSTs where a police officer suspects that a driver has been operating under the influence of marijuana. The court observed that the three standard FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — were created to assess motorists suspected of operating under the influence of alcohol. The court found that the tests were developed specifically to measure alcohol consumption as there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, the court noted in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. Rather, the court concludes that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment.

The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

This decision comports with the my prior blogs on drug recognition expert testimony and the lack of scientific basis for such. Please call me to discuss your legal matter.


Pennsylvania Criminal Expungement and the Pennsylvania Licensee

Expungements are major issue with every professional licensee.  Many licensees are involved in some type of criminal conduct that result in enrollment into Pennsylvania’s pretrial probation – Accelerated Rehabilitative Disposition –  program (ARD).  Some cases also involve Drug Court or Section 17 dismissals under Pennsylvania’s Drug Act. I field many telephone and Internet inquiries regarding criminal convictions and ARD results that require reporting to Pennsylvania licensing boards.  Reporting is either within 30 days of arrest (Nursing Board), 30 days of conviction, or enrollment in the ARD or Drug Court programs.

An issue has arisen regarding expunging dismissed criminal records from one’s Pennsylvania administrative licensing board record.  Typically, licensees who win their criminal cases seek to have those criminal records expunged at the earliest possible date. The expungement process is found under 18 Pa. C.S. § 9122. This Chapter is known as the Criminal History Record Information Act (“CHIRA”). This provision is part of the same statutory chapter, 18 Pa. C.S. § 9161(3), that renders admissible criminal convictions in administrative licensing proceedings. As such, the necessity of expunging criminal arrests that result in not guilty, dismissals or ARD is of key value to every Pennsylvania licensee. But for the criminal charges, there is no administrative disciplinary basis under CHIRA to commence a disciplinary process.
The problem, however, unlike other states, for example Ohio, is that Pennsylvania expungement rules do not specifically provide for an expungement of a criminal arrest record subsequently dismissed that became the basis for an administrative licensing disciplinary proceeding. Pennsylvania’s expungement process allows only for specific administrative licensing expungements in drivers license matters. This is in contrast to Ohio law at section Ohio revised code 2953. 32 and 2953. 52.  This conclusion is drawn because one provision of Pennsylvania’s expungement law, § 9122(a)(3), specifically states “the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation.” Leaving absent all other administrative licensing boards allows these Boards to not expunge their Board proceedings that rely upon criminal charges that were eventually dismissed or expunged.
This is a complex reporting issue for Pennsylvania’s nurses.  In October 2015 Pennsylvania Nursing Board regulations changed, requiring reporting of criminal arrests within 30 days of the arrest.  Other licensees who receives ARD or other pretrial probationary dismissal of offenses under the Drug Act only have to report upon the conclusion of the offense.   I am now finding that nursing license prosecutions are commencing soon after the initial reporting of the criminal arrest and not upon its conclusion.  This creates important 5th Amendment self-incrimination questions for the licensee trying to maintain their profession and their license in the midst of a criminal case.

Other cases affected by this expungement rule include enrollees of Pennsylvania Drug Act, Section 17 drug use dismissal cases, and county Drug Court programs for felony drug sale or possessory offenses. Typically, satisfactorily completing these county-based criminal court diversion programs result in dismissal of criminal charges. Thereafter, the licensee is eligible for the expungement in criminal court of those dismissed criminal allegations. Nonetheless, the licensee will have already reported on their annual renewal or initial licensure application their involvement in these criminal cases. Reporting of Drug Act or pretrial ARD or Drug Court involvement automatically results in licensure disciplinary action even though the charges are eventually dismissed and expunged.

Pennsylvania’s expungement rules do not waiver on this issue.  As well, CHIRA and the Drug Act specifically provides for automatic Licensing Board disciplinary action of any licensee enrollment in any Drug Act pre-trial probation program that eventually results in dismissal and expungement eligibility.  It is the old fashion Blue Law, religious based abstinence theory of the Pennsylvania laws that have not progressed with the rest of the country.  Kicking people out of their jobs and taking their licenses, rather than treatment and keeping them productive members of society, like in OHIO, is how Pennsylvania currently functions.

Practice and Non-Practice Related Unethical Conduct

A fertile area of Commonwealth of Pennsylvania professional license prosecutions are those stemming from licensees convicted of unethical criminal conduct. Disciplinary action originates from several types of criminal conduct. The first realm is crimes of moral turpitude – theft offenses –  involving or not a professional license. The second area focuses on crimes that involve the drug act and medical fraud.  The third strand of cases  involves general criminal behavior – DUI’s — not related to the practice of the license.  The final area is general unethical criminal conduct related or not to the practice of one’s license.

The recent decision of Kirkpatrick v. The Bureau Of Professional And Occupational Affairs focuses on a criminal conviction of a sex offense not involving the license.  The prosecutor sought disciplinary action alleging the criminal conviction based upon a no contest plea to a misdemeanor sex offense violated the ethics clause of the Barber’s regulatory scheme.  No argument was made that this was a crime of moral turpitude!

Kirkpatrick was prosecuted by the State Board of Barber Examiners. The ethics clause in that scheme is slightly different than those in Pennsylvania’s twenty six other disciplinary schemes. The Barber rules state that the Board may “suspend or revoke a license if a person engages in unethical or dishonest practice or conduct, or violate any of the provisions of this act, or any rules or regulations of the board.” This limits an ethics based disciplinary action to only license related conduct.

Kirkatrick plead no contest to one misdemeanor count of indecent assault – not work related.  Procedurally, at the Board hearing the prosecution moved the no contest plea into the record, no facts thereof, and rested its case. Kirkpatrick testified as to his compliance with the probation and presented legal argument maintaining that the no contest plea was not sufficient evidence for the Board to rely upon to support a finding that he engaged in unethical conduct while practicing.

Unique to this case is that the prosecution sought discipline solely based upon the unethical conduct clause of the Board regulations. As such, the prosecutors had to prove that the ethical conduct, the criminal conviction, was related to the practice as a barber. The Commonwealth did not present any independent evidence of Kirkpatrick’s criminal conduct. As is typical, the prosecutor simply moved in the certified criminal record from the county court.

In reviewing the evidence and the case law, the hearing officer concluded the Commonwealth did not meet its burden of proof that Kirkpatrick engaged in unethical conduct relating to the practice of his license and therefore dismissed the prosecution. Timely briefs were filed and the State Board of Barber Examiners rejected the hearing officer’s proposed adjudication. Rather, the Board found that the elements of the offense to which respondent plead no contest sufficiently met the ethics clause in its regulatory scheme and revoked his license.

On appeal to the Commonwealth Court respondent claimed the Board committed an error of law. This allowed the Commonwealth Court to engage in a de novo or complete, review of the record rather than being deferential to the professional board’s imposed discipline. This significant legal strategy changed the way the Commonwealth Court was allowed to review the of Barber Board’s decision. This legal maneuver stripped the Board of its deferential decision making process. Claiming an error of law opened the legal door for the Commonwealth Court to review and interpret the statute itself rather than defer to the Board’s interpretation.

In so doing, the appellate court found that the regulatory scheme allowing discipline for unethical conduct only applied to those acts engaged in while utilizing the license. The Court rejected the prosecution’s expensive interpretation of any unethical conduct not related to the use of one’s license. It was nice to see the court objectively evaluating the statutory scheme and reigning in broad prosecutorial interpretations of its ability to discipline a licensee.

Significantly, the Barber licensing scheme is different from that of CPAs, dentists, podiatrists, nurses, and doctors, that allow for discipline based upon a conviction, plea, or some finding of guilt for unethical conduct not practice related. The appellate court reviewed each of these licensing board’s statutory provisions that authorize suspension or revocation based upon a conviction of, or guilty or no contest plea to, a particular type crime. The Court found the Barber statute did not include the same disciplinary action for non-practice conduct.

Finally, the board took to task the Barber Board’s expansive interpretation of its disciplinary authority under its regulatory scheme absent legislative guidance of specific or established standards set forth in its regulatory provisions. The court noted that the Barber Act did not set forth specific conduct or standards, found in other statutes, that could constitute the basis for discipline under the unethical or dishonest practice or conduct clause of its Act.  The court worried about the Barber Board’s expansive interpretation of its ability to exercise its discretion without legislative guidance. The court concluded that absent clear legislative instruction similar to other regulatory disciplinary schemes, the Barber Board’s power grab was improper because the legislature could not have intended to grant it such unlimited discretion in imposing discipline for any non-practice related conduct.

Call me discuss your disciplinary case.

Total Value of Loss Calculation in Federal Sentencing

The federal sentencing guidelines are a complex set of congressional mandates and instructions identifying for federal judges all factors to be considered when sentencing a federally convicted felon to prison. The federal government is one of the largest contractors and employers in the country, engaging in a substantial amount of business that affects all aspects of the economy. Section 2B1.1, note 3(F)(ii) addresses sentencing guideline calculations associated with fraudulent receipt of government benefits; allegations of fraud and conspiracy related to receipt of any government contract or benefit from those contracts or programs.

The recent case of U.S. v Nagel, 212014 U.S. District Lexis 63033 (M.d.Pa. May 2014), addresses Section 2B1.1, note 3(F)(ii), which resulted in a 24 level increase to the base sentencing guideline calculation for Mr. Nagle. The court applied this note in sentencing Nagle after he was convicted of participating in a fraud scheme to secure federal transportation contracts.

Defendant Nagle was the president of the corporation that masked itself as a disadvantaged business enterprise (“DBE”). Nagle assisted in submitting bids for numerous highway construction projects sponsored by PennDOT and SEPTA but funded by the federal government. With Nagle’s assistance, his company received 336 general and/or subcontracts valued in excess of $119 million. Nagle was accused and eventually found guilty of conspiring to engage in a mail fraud scheme to misrepresent his entity’s disadvantaged business qualifications in order to receive federal highway construction contracts that his company was “otherwise ineligible” to receive.

The presentence investigation report (the “PRS”) valued the entire fraud scheme in excess of $135.8 million. Because Nagle join the conspiracy after its initiation, the loss value attributed to him was $53.9 million. Sentencing guidelines provision 2B1.1(b) increased Nagle’s offense level calculation 24 levels.

Nagle objected to the PSR’s value of loss calculation being determined by the gross value of the contracts awarded and not deducting for the actual value of goods and services provided. This argument was based upon U.S. v White, 2012 WL 4513489 (SDNY Oct 2, 2012), and its interpretation of U.S.S.G. §2B1.1(1)(h). There the court allowed for such a deduction, which resulted in a 14 level, not 24, increase in sentencing exposure.

The Nagle Court reviewed both sentencing provisions and rejected White. The court held that the government bears the burden of proving the loss with specific and reliable evidence. The Sentencing Guideline note at issue defines actual loss as the reasonably foreseeable pecuniary harm that resulted from the offense. The United States Sentencing Commission drafted comment note 3(A)(iii) to U.S.S.G. §2B1.1 , allowing courts to use “gain resulted from the offense” as an alternate measure of loss.

The Nagle court held that the government loss attributed to Nagle’s fraud shall equal the total dollar amount of money the otherwise ineligible defendant receives regardless of benefit or goods provided. The note reads “in a case involving government benefits (grants, loans, entitlement program payments), the loss shall be considered to be not less than the value of the benefits obtained by the unintended recipient. U.S.S.G. § section 2B 1.1 cmt.n.3(F)(ii).

Courts have defined unintended recipient someone who is not socially or economically disadvantaged (otherwise eligible) for whom the set-aside government program is designed to benefit. In White, the defendant certified that he was a service-disabled veteran when he was not. In Nagle, he certified that his company was a disadvantaged business enterprise when it was not.

This case makes clear that Congress, the U.S.S.G., and the courts take a dim view of defendants that “fraudulently certify they are a disadvantage business enterprise” when they are not.   Proper and appropriate construction work (both the services and material provided) become irrelevant in the sentencing scheme. The U.S.S.G. comments and notes address this specific type of fraud scheme in the context of the standard “calculation of loss” issue.

These cases are brought against these defendants (corporate officers and companies) who divert federal funds from their intended use — to help disadvantaged business enterprises secure their congressional mandated percentage of federal contract dollars. To discourage such fraud, the courts are instructed to value of the total loss equal to the face value of the contract fraudulently obtained. This practice lets these corporate entities know that no matter what, their will be no profit available for stealing this contract money from otherwise eligible competitors. Your corporation will lose all of the expenses it incurred in building the road because it will have to disgorge the entire contract value.

Pennsylvania State and Federal Cell Phone and Car Searches Now With Out a Warrant

The Pennsylvania Supreme Court issued two important evidentiary decisions this week. The first decision focuses on the admissibility of drug evidence discovered after a warrantless automobile search. The second decision focuses on the admissibility of statements and other evidence gathered when police, with owner authority, listen in on drug transaction cell phone conversations.

The car search case is Commonwealth vs. Gary, 2014 PA Lexus 1119 (April 29, 2014). In this matter, Mr. Gary operated a motor vehicle in Philadelphia. He was pulled over due to excessive window tint. Upon approaching the car, the police smelled marijuana. The police asked Mr. Gary if there was anything in the car they should know about. He responded, “Some weed.” Mr. Gary was removed from the vehicle and placed in the patrol car, from which he later attempted to flee.

Pennsylvania automobile stop and search jurisprudence has long established that illegal window tint evidence alone constitutes probable cause that crime, a motor vehicle code violation, has occurred. This permits the police to conduct a motor vehicle stop. That is not the issue in this case. As well, additional probable cause of criminal activity is presented by marijuana odor and Mr. Gary’s legal blurt out that there is weed in the car. He was not detained and he was not under interrogation. Also, prior Pennsylvania Supreme Court precedent allows the police can take Mr. Gary out of the vehicle for any or no reason as a result of a lawful motor vehicle stop (the window tint).

As such, the car stop and initial contact with Mr. Gary is legal and has been for a long time. The unusual part of the Gary case is what the police did after Gary attempted to flee; they searched the vehicle without a warrant or consent, finding two pounds of marijuana in the trunk.

Mr. Gary filed a motion suppress in Philadelphia Municipal Court, which the court denied. He was found guilty of possession of marijuana with intent to deliver and given four four years probation. Mr. Gary appealed the case to the Philadelphia County Court of Common Pleas, which court affirmed the denial of the motion to suppress. Mr. Gary appealed to the Pennsylvania Superior Court claiming the search without a warrant was illegal. Superior Court agreed and reversed the conviction and vacated the evidentiary ruling in the case. The Commonwealth appeal the case to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court spent a significant amount of time reviewing the long history of Pennsylvania case law regarding automobile searches. Without repeating all here,the court eliminated any exigent or emergency need prior to police being able to search a vehicle without a warrant. Rather, they simply said police office who possess probable cause to stop and search a motor vehicle may search that vehicle at the scene without a warrant, If the probable cause to which the police claim as a basis to stop the case is sufficient thereto, then it would be sufficient in a warrant. The level of probable cause may be tested in a court of law. Commonwealth of Pennsylvania police departments no longer are required to secure a motor vehicle and impound it and then wait to secure a warrant before any search.

Importantly, the case does not eliminate the legal requirement that the Police must possess reasonable suspicion of a motor vehicle code violation, probable clause of a motor vehicle code violation, or probable cause that a crime has been committed for which evidence of that crime may be located in the motor vehicle subject to search without a warrant. This test is a fundamental due process requirement imbedded in every state and federal constitution. Every person charged with a crime who possesses an ownership or privacy interest in the vehicle searched is still able to file a Motion to Suppress. The significant aspect of the Gary decision is only that the police no longer need to secure an impound the vehicle and wait to secure a search warrant. The court determined that the inherent mobility of a motor vehicle is a sufficient basis for the Pennsylvania Constitution to allow motor vehicle search without a warrant but based upon probable cause.

The second case issued by the Pennsylvania Supreme Court this week focuses on the police using modern-day telephonic techniques to intercept and utilize cell phone communications to investigate crime. The frequency and widespread use of cell phones and cooperating witnesses prompted the Pennsylvania legislature to amend the Pennsylvania Wiretap Act, 18 Pa. C.S.A. §5701. These amendments were effective in 2012. I have extensively written on the new law for Pennsylvania’s legal newspaper, The Legal Intelligencer. Pleases visit my website webpages under articles published for an extensive discussion on the amendments to the wiretap back. http://www.phila-criminal-lawyer.com/Publications/204101201Hark-2.pdf

Suffice it to say for the purposes of this blog that the Pennsylvania Supreme Court ratified the police conduct of listening in on cellular telephone conversations via speakerphone or ear plugs. The court also ratified police conduct of receiving the authority of confidential informant to participate in and impersonate the owner in a cellular phone to secure evidence. The police conduct does not require a warrant or judicial oversight. The police may utilize any and all information gathered from the cell phone conversations to investigate and prosecute individuals committing crimes. Any evidence gathered is admissible in a court of law.

The widespread use of cell phones prompted the case to reach the Pennsylvania Supreme Court. The Delaware County Court of Common Pleas precluded the use of any police evidence secured via cell phone, suggesting that those conversations were subject to Pennsylvania’s Wiretap statute. However, the Pennsylvania Supreme Court merely reviewed the 2011 amendments to the Wiretap Act, which specifically precluded cellular telephones as a device subject to the act. More importantly, the Supreme Court indicated that listening in on conversations with the authority of one of the two recipients was a wholly prescribed and anticipated idea that act authorized as an evidence gathering Technique.

Please call me to discuss the search of your vehicle, the taping of your cellular phone conversations, or any other evidentiary issues secured in your potential for prosecution.

Mortgage Fraud, Scope of Criminal Activity and Actual Loss

The end of the housing bubble and mortgage fraud induced economic downturn is giving birth to numerous prosecutions for mortgage fraud. The recent case of U.S. v. David McCloskey, 2013 U.S. Dist. Lexis 168220 (November 26, 2013), is indicative of the numerous issues guilty pleas or guilty verdicts in these cases preset. Issues of forged appraisals, engaging in mortgage brokering without a license, submitting fraudulent bank and asset information upon which mortgage qualification documents are based (this is fake W-2 forms, bank account statements, asset information) must be addressed head on with competent counsel.

The facts of these cases, when incorporated in a guilty plea or form the basis for a guilty verdict, significantly expand a potential base line sentence in accordance with the federal sentencing guidelines. Please review http://www.phila-criminal-lawyer.com/Publications/201031202-Hark.pdf, for my publication in the Legal Intelligencer discussing of the process of a federal sentencing.  This blog will discuss the major issues of scope of criminal activity and the resulting loss calculus.  A second blog will address secondary sentencing enhancements.

Sentencing enhancements are one of the major issues mortgage fraud cases confront. In accordance with the Guidelines, the first issue to be addressed controls the entire sentencing scheme: what is the scope of the criminal activity. The Guidelines define scope as a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy, for which “sentencing adjustments are determined by considering “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(B). The importance of this scope of criminal activity definition is that all losses associated with the scope of activity are then attributed to the defendant and for which the guidelines provide a sentencing enhancement.

The amount of loss is defined at in U.S. Sentencing Guidelines Manual § 2B1.1(b)(1). It is the government’s burdened by a preponderance of the evidence to establish scope of loss Once the government makes out a prima facie case about the amount of loss, the burden of production shifts to the defendant to provide evidence showing that the government’s evidence is incomplete or inaccurate.” The ultimate burden of persuasion, however, remains with the government. The court “need only make a reasonable estimate of the loss.” Id.; U.S.S.G. § 2B1.1 cmt. n.3(C).

The accordance with U.S.S.G. § 2B1.1 cmt. n.3(F)(v), “services were fraudulently rendered to the victim by persons falsely posing as licensed professionals[,] … loss shall include the amount paid for the property, services or goods transferred, rendered, or misrepresented, with no credit provided for the value of those services.” This amount includes fake mortgage service appraisal fees, broker fees, and attorney’s fees.

Objections to unearned or fake broker’s fees, sometimes amounting to millions of dollars, will not win. Case law indicates that: “A victim’s loss will count against the defendant at sentencing if it would not have occurred but for the fraud. In this context, but for the fraud’ means ‘had the defendant refrained from the conduct that gave rise to the fraud, not had the defendant engaged in such conduct but did so lawfully (rather than fraudulently).” Although a defendant and his bank could have earned these fees legally, the professional fees paid to borrowers will be appropriately considered loss under U.S.S.G. § 2B1.1 because the loans closed due to fraudulently inflated appraisals.

A second aspect of losses includes the amount of the bank’s losses due to default and mortgage foreclosure. The calculations also multiply each loss by the total number properties purchased in the scheme. Each house’s price and therefore loss calculus may be derived from the HUD-1 loan amount.

However, it benefits the defendant to use the value of the foreclosure judgment, excluding interest, finance charges, late fees and penalties. The guidelines specifically exclude interest, finance charges, late fees, and penalties from the loss calculation. U.S.S.G. § 2B1.1 cmt. n.3(D)(i). In one case, a court found the judgment amount to be a reasonable estimate of loss because the government did not include other expenses associated with foreclosure–such as closing costs, insurance payments, and management fees -in its loss calculation. This equation also must include mortgage payments made and foreclosure prices paid. This equation will produce the lowest possible figure in most cases.

Importantly, the courts have found that the government loss cannot be based upon a percentage of been appraised value. Typically, the property price or value will vary. The courts have held that with a variance this high, it cannot make a reasonable estimate of the principal amount at foreclosure from the appraised value alone. The court has stated “[T]he 80% formula value is not a reasonable estimate unless there is evidence to indicate that the relevant loan was for the purchase. As well the appraised value does not factor in specifically property sold at sheriff sale, money paid down, tax value, actual value, or a correct appraised value.

It fighting the scope of criminal activity and actual loss calculation, a defendant must contest every aspect of the government calculated loss. Consideration must be paid attention to the principal owed at the time of foreclosure, the foreclosure sales price which permits a credit to the lost value, the resale price after the foreclosure, and then the actual loss calculated. The issues as to brokerage fees and appraisal fees must also be addressed to come to ascertain the gross loss value. There, however, must be a balance so as to not loss any acceptance of responsibility deductions.

Please call to discuss your case.

Automobile Warrantless Searches and the Exclusionary Rules

Sometimes crazy things happen on the way to surrendering to federal prison. A recent case discusses issues a convicted federal felon confronted when he chose to not surrender but flee to the New Mexico border. When U.S. Marshals found him sitting in his car in the parking lot of a border motel, strange search and seizure constitutional violations of his hotel room and car began to take place. I am sure many of these search techniques are utilized daily.

The case is U.S. v. Donahue, out of the Middle District of Pennsylvania. The searches of his hotel room and car were incident to his arrest for failing to report to federal prison as ordered. However, at the suppression hearing, it was discovered that upon Donahue’s detention near his car, U.S. Marshal searches of Donahue’s car and hotel room were pursuant to instruction for a Scranton, Pa U.S. Marshal, not investigative in nature.

Importantly, the Court determined that the U.S. Marshal’s office in Pennsylvania authorized a search of Mr. Donahue’s car. An inventory search of the car was performed one day later by the New Mexico FBI office. It is at that time a gun was found. Donahue moved to suppress the search of his vehicle aiming to not be convicted of being a federal felon in possession of a firearm.

Donahue argued 1) he had standing to move to suppress the illegal car search as he was a permissive user of the car, 2) the searches were illegal because they were not pursuant to either a warrant or probable cause of criminal activity, 3) there were no exigent circumstances present allowing for the warrantless search of his car, and 4) the inevitable discovery doctrine regarding inventory searches was equally inapplicable.

The government argued that Mr. Donahue had stolen the car and therefore did not possess standing to seek to suppress the evidence. Thereafter, the government argued that the search was pursuant to a reasonable suspicion of criminal activity (a federal felon not reporting for prison), and even if there was no probable cause, FBI search procedures of vehicles impounded pursuant to criminal investigations warranted application of the inevitable discovery doctrine.

As the car was being inventoried, seats were moved and the gun was found underneath. My experience with these cases and the law addressing propriety of U.S. Marshall, FBI, and state police officers searching and inventory tactics is expansive. This case presents clear overreaching by government investigative measures and on the scene search techniques.  The governmental attorneys failed in their attempt to masquerade the search as a legal on the scene warrantless search or policy driven inventory search.

First the court addressed Donahue’s standing to contest the car search. The Court found that the vehicle was not stolen. The government cited a psychiatrist report stating Mr. Donahue stole the vehicle. The defendant presented vehicle owner testimony whom provided authority to operate the vehicle. As such, Mr. Donahue had standing to contest the search of his vehicle.

Having standing to object to the search, Mr. Donahue then contested the government’s search of his vehicle without a warrant. The Fourth Amendment guarantees that: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend IV. “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. The automobile exception to the warrant requirement requires the search occur on a readily mobile car for which exigent circumstances present itself.

The government argued that because Mr. Donahue was a convicted felon who did not surrendered to prison, the car was the instrumentality of that crime and thus the warrantless vehicle search was proper . The same argument applied to the hotel room. The court expressly disagreed, citing the elements of the offense of failing to report to prison as a formal court order and failing to be present at the federal prison on the date and time identified. There is no requirement in the statute that the defendant be in a house, hotel room, or car. As such, searching Mr. Donahue’s hotel room or car did not present a fair probability that evidence of the crime (failure report to prison) would be discovered. Hence, the car and hotel room searches without a warrant were illegal.

Having determined that the search of the car illegal, the government argued that the government was still permitted inventory the contents of the car for the purposes of further investigative reasons. The court disagreed with this position as well. Because the car was searched based upon U.S. Marshal instruction and not FBI investigative procedures, the government’s argument was contrary to the evidence.  As such, there was no basis to inventory the items in the vehicle or apply the inevitable discovery doctrine. All evidence secured from the initial illegal search was therefore precluded and determined to be inadmissible.  The gun was suppressed and any additional criminal charges of a felon possessing a firearm while failing to report to prison would have to be dismissed.

Please call me to discuss your case.

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

Strip Searches in Pennsylvania

This blog shall review the legality of body cavity searches in light of a recent case discussing the issue. Typically employed as a result of either highway traffic investigations or specific, fact-based search warrants, the courts are approving of this search mechanism more and more.

The recent case of Commonwealth v Martinez, 2013 Pa. Super 102 (May 2013), highlights the typical fact pattern and legal issues. Martinez was identified by a confidential source “CI” as a heroin supplier to be picked up in Lancaster and transported to Chester County to deliver heroin. The CI identified the location of Martinez’ pick up, the car in which he would be traveling, and was provided the buy money to purchase the drugs from Martinez.  All of this information was attested to in an affidavit in support of a search warrant to stop and search the vehicle in which Martinez and the CI were traveling.  The state troopers handling the case executed the search warrant by initiating a specious motor vehicle traffic violation stop on the vehicle and its occupants on the PA Turnpike, in Chester County.  The car was searched, but no heroin was found. Martinez was taken back to the State Trooper barracks, where he was subdued, tazered, and forced to submit to a strip search, which revealed over 14 grams of heroin. At trial, Martinez filed a motion to suppress, which was denied. After a non-jury trial, Martinez was found guilty of Possession With Intent to Deliver and was sentenced to 5-10 years in state custody.

On appeal, Martinez contested the legality of the strip search and the factual basis supporting the warrant to search a specific person versus the place where that person may be found. In rejecting Martinez’ argument, Superior court reviewed federal and state court cases addressing legal strip searches. The court held that searching naked individuals was less of an important fact than the extent of the search techniques employed. The appellate court was more impressed with the regularity with which drug dealers secret their booty in or on their persons, thereby warranting the strip search, as compared to tazing an individual and removing his clothes with force and penetrating his body under the auspices of an approval from a magistrate to stop the drug trade. The appellate court did not consider that the entire drug transaction was set up by the government’s confidential source for the purpose of arresting Martinez, the alleged source of the drugs.

Because the state troopers in Martinez set up the drug buy, all facts in the warrant were known to them, set forth with precision in the warrant, and magically testified to with remarkable clarity and consistency at the suppression hearing. Finding that all of the facts “matched and supported” a conclusion under the totality of the circumstances, that drugs would be found in the car or the vicinity of where Martinez was sitting, even though none was found, both the trial and appellate court found sufficient probable cause existed which support both the warrant and search of Martinez’ naked body, which was in the vicinity of the place to be searched. The courts found the search, conducted in private by a trooper of similar gender, was not malicious and supported the state’s interest in securing evidence of criminal activity.

Significantly, the the trial and appellate courts sanctioned strip searches conducted with the level of invasion and penetration reasonably necessary to uncover the contraband that was alleged to be present in the search warrant. This conclusion is disturbing in that it authorizes police investigations to proceed to any level of invasiveness when an investigator says drugs will be present and claims to know such, therefore they are there, so we must search everywhere to find them. It’s the old sociological term “self-fulfilling prophecy.” Privacy interests and personal dignities give way to the overriding interest of the state to investigate, find, and prosecute all persons engage in the illegal drug trade. Call me to discuss the legality of your strip search or body cavity search.

December 20, 2012 Megan’s Law Reclassification Issues

The typical questions I am receiving in these Megan’s Law reclassification cases are “I have been registering for 9 years, with one year left and I now am told effective December 20, 2012 I will have to register for a lifetime. Can they do this? Or, I am on probation and I do not have register. The Pa. State Police are telling me I now have to register. Can they do that?

The answer under both scenarios is YES.

The cases have held the following: Megan’s Law (Megan’s Law I), was first enacted in Pennsylvania on October 24, 1995. Subsequently, the Law was reenacted and amended on May 10, 2000, effective July 9, 2000 (Megan’s Law II). Megan’s Law II has been amended several times, most recently on December 20, 2011, to be effective in one year. In the latest amendments, Megan’s Law III, the length of registration has been altered for anyone still under supervision or currently registering under the Act.

The new registration provisions are under 42 Pa.C.S. § 9799.14 and 42 Pa.C.S. § 9799.15. There are now three tiers and multiple years of registration.

Thomas v. Pa. Bd. of Prob. & Parole Secy. Kimberly Barkley, 2012 Pa. Commw. Unpub. LEXIS 892, 1-3 (Pa. Commw. Ct. 2012), is a case that discusses the legality of the legislature reclassifying probationers or registrants. Following Comm v. Benner, 2004 PA Super 243, 853 A.2d 1068 (Pa. Super. 2004), the court said reclassification is OK and there is nothing illegal about it.

In Benner, neither Megan’s Law I nor Megan’s Law II was effective at the time of his rape conviction. However, Megan’s Law II was in effect in 2009 when Benner was paroled. Section 9793 of Megan’s Law I, which required registration of certain offenders for ten years, including those individuals convicted of rape under Section 3121 of the Crimes Code, as amended, 18 Pa. C.S. § 3121, was repealed. Section 9795.1 of Megan’s Law II, enacted on that same date, changed the registration requirement for those individuals convicted of rape from the previous ten-year registration requirement to a lifetime registration requirement. 42 Pa. C.S. § 9795.1(b)(2).

Benner similarly argued that he could only be subject to the registration requirements in Megan’s Law I, and not Megan’s Law II, which was not in effect when he pled guilty and was sentenced. The Superior Court found that the registration provisions of Megan’s Law did not constitute criminal punishment, but were a collateral consequence of the individual’s conviction. The court noted that “while a defendant may be subject to conviction only under statutes in effect on the date of his acts, and sentence configuration under the Guidelines in effect on that same date, the application of the registration requirements under Megan’s Law is not so limited.” The court therefore determined that “the collateral effect of current legislation may be imposed on the defendant so long as he remains in the custody of correctional authorities to discharge any part of his sentence for the sex offense.” Accordingly, because defendant Benner was still serving his sentence for a sex offense after Megan’s Law II was enacted, he remained “subject to the collateral effect of its application [i.e., lifetime registration].” Thompson argued the same issue and also lost.

The issues of whether the reclassification registration requirements under Megan’s Law constitute ex post facto punishment has already been roundly rejected by the courts in, e.g., Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008) (registration is merely collateral consequence of a conviction of a Megan’s Law predicate offense and not punitive in nature); and Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) (registration is remedial in nature, not punitive). Thomas v. Pa. Bd. of Prob. & Parole Secy. Kimberly Barkley, 2012 Pa. Commw. Unpub. LEXIS 892, 8-9 (Pa. Commw. Ct. 2012)

More importantly, the courts have held that while it is clear that under Megan’s Law II the inconvenience of verifying one’s residence has been extended from ten years to the remainder of one’s life for certain offenders, the courts cannot discern how the extension of this time period effectuates such a change in the registration requirements that the effects of the provisions are so harsh that they are now punitive. A registrant must still has to provide the same information in the same manner as set forth in Megan’s Law Iⅈ he is merely subject to the requirements for a longer period of time. Moreover, the requirement that a registrant provide information to law enforcement will not have a large impact on their life. An extension of time alone does not render the effects of the registration requirements so harsh as a matter of degree that they now may be characterized as punishment. Additionally, the court notes that: “a registration requirement is perhaps the least burdensome among the various modes of regulation a state may seek to impose. Commonwealth v. Mountain, 711 A.2d 473, 477 (Pa. Super. 1998), appeal denied, 561 Pa. 672, 749 A.2d 469 (2000) (quoting Commonwealth v. National Federation of the Blind, 18 Pa. Commw. 291, 335 A.2d 832, 835 (Pa. Cmwlth. 1975), aff’d at 471 Pa. 529, 370 A.2d 732 (1977)). Accordingly, the courts conclude that the effects of the registration provisions of Megan’s Law II are not so additionally burdensome as to constitute punishment, Commonwealth v. Fleming, 2002 PA Super 190, P17 (Pa. Super. Ct. 2002), and will so for the reclassification scheme under Megan’s Law III in effect after December 20, 2012.

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