Philadelphia Criminal Defense Lawyer Blog

The United States Constitution contains what is known as the Bill of Rights; the first ten amendments to the Constitution which provide American citizens with their Fundamental Rights. These amendments alone apply to individuals solely within the confines of the Federal Government and Legal systems. The Fourteenth Amendment then applies those Fundamental Rights, as set forth in the Bill of Rights, to citizens of all individual States. Specifically, State Constitutions cannot provide less protections than that which is provided for by the Federal Constitution; but State Constitutions can provide greater protections.

The Superior Court of Pennsylvania recently decided an appeal by the Commonwealth of Pennsylvania, in the case of Commonwealth v. Antoszyk. Nolan Antoszyk was arrested and charged, after police obtained information from a confidential informant alleging he had recently been at the home of Antoszyk and witnessed bulk quantities of marijuana for sale. Based on this information, officers wrote and signed an affidavit of Probable Cause and used the affidavit to obtain a search warrant for Antoszyk’s home. Upon conducting the search, police found bulk quantities of marijuana; just as the confidential informant had alleged.

The defense moved to suppress the evidence seized in the search, based upon an argument of illegal search and seizure. At the suppression hearing, the confidential informant was called to testify, upon which he admitted under oath that the information he gave to police was false; although the allegations proved true, the confidential informant had never actually been to the home of the defendant or witness bulk quantities of marijuana for sale.

As the police search warrant cited no independent source of information other than the confidential informant, the trial court granted the suppression Order. On appeal, the Superior Court upheld the ruling, citing Commonwealth v. Edmunds and Commonwealth v. Clark. Under a Federal Constitutional analysis, and based on the case of Herring v. United States, suppression would not have been warranted because the United States Constitution allows for what is known as the “good faith” exception. The good faith exception allows police officers to rely upon a search warrant when they have reason to believe their actions are legal. Here, the officers believed the confidential informant was telling the truth about Nolan Antoszyk, and therefore their actions would have been legal under the Federal Constitution. However, in the Commonwealth of Pennsylvania, the State Constitution does not provide for the good faith exception; an added protection to those privacy rights which are already guaranteed by the Federal Constitution. Without this exception, the search warrant which was solely based upon false information was found illegal, despite the fact that the allegations were true, and all of the evidence obtained via the search warrant was suppressed.

Suppression of Evidence
In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate actions to do so.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

The Superior Court of Pennsylvania decided the case of Commonwealth v. Garcia-Rivera earlier this month, in which Melvin Garcia-Rivera had entered an open plea of guilt and was sentenced to two counts of involuntary manslaughter. Garcia-Rivera was charged in connection with a motor vehicle accident in which his two passengers were killed. The standard sentencing guideline for involuntary manslaughter is nine (9) to twenty-three (23) months imprisonment, which is increased or decreased based on aggravating or mitigating circumstances respectively.

Garcia-Rivera entered an open guilty plea submitting to sentencing by the Cumberland County Court of Common Pleas. At sentencing, his lawyers argued he was extremely remorseful, fully employed, cooperating with the victims’ attorneys in the civil trials and cooperating with the state Attorney General’s office in an ongoing investigation. The trial court sentenced Garcia-Rivera to the standard nine (9) to twenty-three (23) months incarceration for the first count, to be followed by a consecutive twenty-three (23) month period of probation for the second count. The court, on record, stated that Garcia-Rivera did not have a criminal record or troubled history, thereby meriting probation for the second count rather than consecutive prison terms. However, the court reasoned that the twenty-three (23) month probation, to be served consecutively with the prison term, still fell within the standard sentencing range.

On appeal by the Commonwealth, The Superior Court remanded the case for sentencing, finding the twenty-three (23) month probation actually fell in the mitigated sentencing range for involuntary manslaughter. The opinion referenced all of the mitigating factors discussed on record during Garcia-Rivera’s sentencing hearing, however found that the trial court based its decision solely on his not having a criminal record; a factor already considered in standard sentencing guidelines versus increased sentencing. Therefore, the Court found the sentencing judge was not justified in sentencing the defendant to probation and remanded the case for resentencing; for either mitigating factors to be considered on record in sentencing, or for a second consecutive prison term to be served.

Garcia-Rivera counter-argued that the trial court erred in sentencing him to consecutive sentences for the same act. Counsel for Garcia-Rivera argued that because both victims were killed in the same accident, the defendant should not be sentenced for each death but rather have two deaths factored into his one sentence. The Superior Court based their decision on Pennsylvania’s REAP statute, which states a person is guilty of reckless endangerment when s/he put another person in danger of death or serious injury. The Supreme Court has held the REAP statute could be used to impose multiple sentences for multiple victims, in a case where defendant recklessly drove his vehicle into a crowd of people. In the case of Commonwealth v. Frisbie, the Supreme Court reasoned that if the REAP statute provided for one sentence where multiple victims were put in danger, the statute would read another person or persons, rather than just a single person.
Sentencing

A sentencing hearing is held following a plea of guilt or a finding of guilty at trial. The purpose of the hearing is to hear both mitigating and aggravating factors, which may affect the duration of a defendant’s sentence. Some crimes carry mandatory minimum sentences, while others use guidelines which are advisory. Often times, a defendant can lower the level of his offense through mitigation; for example, cooperating with and assisting Police in an on-going investigation. There are other mitigating factors which are used to reduce a defendant’s sentence as well. An experienced criminal defense attorney is well versed in these mitigating factors, and can assist the defendant in reducing a potential sentence. If you have been charged with, or believe you are under investigation for a crime, please do not hesitate to contact the Law Offices of Marc Neff for a confidential consultation.

The United States Court of Appeals for the Eleventh Circuit held attorneys cannot be penalized criminally for accepting tainted money from clients, under a Federal money laundering statute. The Federal statute, 18 U.S.C. § 1957, excludes “any transaction necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution” from criminal penalties associated with money laundering; knowingly engaging or attempting to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity. The funds remain subject to civil forfeiture, but attorneys who accept such funds for attorney fees, in accordance with legal representation, have not committed a crime.

In the case of U.S. v. Velez, Kuehne, and Ochoa, a Miami attorney, Benedict Kuehne, was hired by the defense team of a reputed Columbian drug lord to examine the source of funds used to pay Defendant’s legal fees. Kuehne enlisted the assistance of a Columbian attorney and a Columbian accountant, to help examine the money trail. After careful examination, Kuehne wrote opinion letters finding the money was legitimate and forwarded the $5.3 million which had been paid to him, as an intermediary, to the defense team. The Government alleged Kuehne had used falsified documents in determining the legitimacy of Defendant’s funds.

The District Court dismissed the count of the indictment relating to money laundering, holding transactions made for the purpose of securing legal representation were exempt under Federal statute. On appeal, the Circuit Court affirmed the ruling, differentiating the criminal statute from civil forfeiture. The statute governing civil forfeiture, 21 U.S.C. § 853, contains no exemption for funds paid for legal representation. In Caplin & Drysdale, Chartered v. U.S., the Supreme Court of the United States refused to read into the statute an exemption for criminal proceeds used to pay attorneys’ fees, stating Congress has the authority to legislate such a clause should they so choose. 18 U.S.C. § 1957, rather, explicitly exempts such transactions from criminal penalty.

Velez exemplifies the exemption in the Federal money laundering statute for transactions relating to legal representation. Although funds accepted for legal representation may be forfeited civilly if investigation reveals those funds are tainted, an attorney is not subject to criminal penalties for accepting those funds. The Sixth Amendment’s guaranteed right to legal representation in criminal proceedings should not be infringed upon by attorney apprehension of criminal penalty, solely for acceptance of payment.

For a confidential consultation in matters involving money laundering or serious felony drug crimes, contact the Law Offices of Marc Neff at (215) 563-9800 or email Marc@nefflawoffices.com.

The Pennsylvania Superior Court decided the case of Commonwealth v. Smith lat month, remanding the case back to the trial court in order to determine proper sentencing. Smith was arrested and charged with four counts of possession of cocaine, four counts of intent to deliver cocaine, and three counts of delivery of cocaine. The arrest occurred following a prolonged police investigation, during which the defendant, Smith was observed committing four separate narcotics transactions. Smith was sentenced in the Court of Common Pleas, Allegheny County, to seven to fourteen years imprisonment, in accordance with Pennsylvania’s mandatory minimum sentencing statute.

Smith appealed his sentence to the Pennsylvania Superior Court, arguing the police purposely manipulated their investigation in order to increase the mandatory minimum associated with his sentence. In fact, a first offense carries a mandatory minimum of three years, five years for a second conviction, and ultimately seven years for subsequent convictions. Smith’s position was that the police could have arrested and charged him following the first or even second observed offense, rather than allowing him to continue his illegal activity. Judge Klein wrote the opinion of the Superior Court, remanding Smith’s case to the trial level for further examination. In the opinion, Judge Klein explained that police are well within their powers to delay making an arrest, if the purpose of prolonging their investigation is for example, to determine a supplier or a more important member of a criminal conspiracy. However, if the purpose of the prolonged investigation is merely to increase the potential sentence associated with a conviction, the Court must impose the mandatory minimum sentence associated with the initial count.

The Superior Court remanded the case for determination of whether the prolonged investigation had purpose or was rather an abuse of police discretion. It is important to note that even in the scenario outlined in Smith, a prior conviction will automatically bump the mandatory minimum sentence to the higher level. If charged with a narcotics offense, it is imperative you contact an experienced criminal defense attorney immediately. Attorney Marc Neff has over twenty years of experience successfully defending clients charged with narcotics, and all other criminal violations. If you have been charged with a crime or believe you are under investigation and could potentially be charged, there are defenses available to you. All consultations are confidential. Contact the Law Offices of Marc Neff as soon as possible, at (215)563-9800 or via e-mail at Marc@nefflawoffices.com.

The Sex Offenders Registration and Notification Act, otherwise known as SORNA, was enacted by Congress in 2006 as part of the Adam Walsh Child Protection and Safety Act; legislation enacted “in order to protect the public from sex offenders and offenders against children”. SORNA establishes a national database of sex offenders, requiring anyone convicted of certain sex offenses to register as an offender and report to law enforcement authorities every ninety (90) days for twenty-five (25) years. The Attorney General was given the authority by Congress, and accordingly chose to apply the registration and reporting requirements of SORNA retroactively to those with prior convictions of certain sex crimes. The Attorney General further applied the SORNA requirements to those convicted as juveniles, regardless of whether they had been adjudicated.

The Federal Juvenile Delinquency Act has long been in place in our justice system. It was created with the intention of removing juveniles from the ordinary criminal justice system in hopes of rehabilitation and to assist troubled youths in becoming productive adult members of society. As part of the Act, juvenile offenders generally do not have their names or a picture released to the public when charged with most criminal offenses and further safeguards the record of juvenile proceedings from unauthorized disclosure.

The Constitution of the United States also provides protection against Ex Post Facto laws, or laws which retroactively change the legal consequences of a person’s actions. The Constitution shields citizens from being punished for acts previously committed which did not carry consequence at the time they were committed. However, consequences must be deemed punitive in order for the Constitution’s clause to apply; regulatory or civil application, such as adult registration in a sex offender database, is not considered a violation of the Ex Post Facto clause.

A juvenile who was adjudicated for a sex offenses which he committed between the ages of thirteen (13) and fifteen (15), was required to register in the national sex offender database as per SORNA’s requirements. The juvenile’s offenses constituted aggravated sexual assault due to the young age of the victim. The Juvenile was adjudicated delinquent and sentenced to two (2) years detention in a juvenile facility, to be followed by supervised release; the adjudication occurred one (1) year prior to the passage of SORNA. As per the FJDA, the juvenile’s record was sealed.

On appeal from the District Court’s imposition of the SORNA requirement upon the juvenile, following his adjudication for delinquency, the United States Court of Appeals for the Ninth Circuit held that applying the SORNA requirements to the appellant violated the Ex Post Facto clause of the Constitution. The Court discussed the difference between applying SORNA retroactively to adults versus adjudicated juveniles. The FJDA seals a juvenile’s criminal record upon adjudication, allowing only authorized personnel to view juvenile offenses of an individual. The FJDA provides this protection in hopes of rehabilitating juveniles so they can become productive adults, rather than burden their early adult lives with a criminal record which would affect employment, credit, home rental and purchase, etc. Contrarily, an adult criminal record is open to the public upon search.

Based upon this analysis, the Court held application of SORNA’s registration and reporting requirements unconstitutional as applied to adjudicated juveniles, as the effect would be punitive rather than merely regulatory. The Court also mentioned that an opposite finding could require juvenile offenders, adjudicated decades ago, to register; potentially ruining families, businesses, and the lives of those who have been successfully rehabilitated.

Sexual Crimes

Sexual Crimes are serious matters in the Commonwealth of Pennsylvania, as well as throughout the United States. These crimes carry harsh penalties. In addition to prison sentence, a convicted offender may be subject to “Megan’s Law”, which is intended by the Pennsylvania General Assembly to “protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood”. Further, offenders may also be subject to a national sex offender registration database under the Federal SORNA Act.

Sexual offenses in Pennsylvania are serious crimes which carry many substantial penalties if you are convicted. An experienced Pennsylvania Criminal Defense Attorney can defend you against these charges.

A recent precedential case, decided by the United States Court of Appeals for the Third Circuit, held that a downward departure from the sentencing guidelines must result in a final sentence, less than the minimum provided by the guideline. The case of U.S. v. Vazquez-Lebron involved a Defendant who had pled guilty to conspiracy to possess and intent to distribute cocaine. For his cooperation and substantial assistance in the prosecution of others involved, the Prosecution agreed to grant Vazquez a downward departure from the sentencing guidelines which suggested forty-six (46) to fifty-seven (57) months imprisonment. This downward departure was intended to lower Vazquez’s offense level by one point, changing the applicable sentencing guideline to forty-one (41) to fifty-one (51) months. At sentencing, the District Court imposed a sentence of forty-eight (48) months for Vazquez, within the range of the downward departure but overlapping with the original sentencing guidelines.

Vazquez appealed the sentence for plain error, arguing he was not given any benefit of the downward departure the Prosecution had agreed upon. The Third Circuit cited to U.S. v. Floyd, quoting “the sentence reached after granting a departure motion must be less than the bottom of the otherwise applicable Guidelines range.” The Court further explained the only way Vazquez could have been sentenced to a greater term than allowed by the downward departure is if the new sentence failed to reflect the seriousness of the crime committed. The Court found the error to be plain and prejudicial, therefore vacating the sentence and remanding the case with instruction for re-sentencing.

Sentencing

A sentencing hearing is held following a plea of guilt or a finding of guilty at trial. The purpose of the hearing is to highlight both mitigating and aggravating factors, which may affect the length of a defendant’s sentence. Some crimes carry mandatory minimum sentences, while others use guidelines which are advisory. Often times, a defendant can lower the level of his offense through mitigation; for example, cooperating with and assisting Police in an on-going investigation. There are other mitigating factors which are used to reduce a defendant’s sentence as well. An experienced criminal defense attorney is well versed in these mitigating factors, and can assist the defendant in reducing a potential sentence. If you have been charged with, or believe you are under investigation for a crime, please do not hesitate to contact the Law Offices of Marc Neff for a confidential consultation.

The United States Court of Appeals for the Sixth Circuit recently reversed a District Court decision which denied a motion to suppress evidence seized without a warrant. The case, U.S. v. Quinney, involved a U.S. Secret Service investigation for the counterfeiting of American currency. Agents from the Secret Service arrived at the Defendant’s residence and obtained consent to search the Defendant’s bedroom. Agents discovered a printer which they believe was used for counterfeiting. The Defendant, however, admitted to passing phony currency, but not actually manufacturing counterfeit dollars.

After later interviewing two witnesses who claimed the Defendant actually had manufactured counterfeit money, the agents returned to the Defendant’s residence without a search warrant. The Defendant was not home at the time. The man’s stepfather, who was home when the agents arrived, claims the agents did not request his permission, but rather announced their presence and that they were seizing the printer.

In support of denying the Defense’s motion to suppress, the Prosecution argued the “Inevitable Discovery” doctrine applied, making the warrantless search and seizure legal. The Inevitable Discovery doctrine states “if the Prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means..., then the deterrence rational has so little basis that the evidence should be received.” In U.S. v. Alexander, the doctrine was applied where police, with a proper search warrant, arrested the defendant in his home and obtained an admission from the defendant of where contraband had been hidden, prior to reading the defendant his Miranda rights. The defense moved to suppress the evidence on the basis of an illegally obtained confession leading to the discovery of evidence, as fruit of the poisonous tree. The Court in Alexander held that because the police had a proper search warrant, they would have inevitably discovered the contraband when exercising the warrant, regardless of whether the confession had been given.

In Quinney, the agents failed to obtain a proper search warrant despite having probable cause to do so. The Court therefore held the Inevitable Discovery doctrine did not apply, as the agents were instead trying to circumvent the warrant requirement for whatever reason. The Court cautioned that a finding in the contrary could lead to an elimination of search warrant protections. The evidence was therefore suppressed and the case remanded for trial accordingly.

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate actions to do so.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

In a recent appeal, challenging a motion for summary judgment which had initially been granted, the Superior Court of New Jersey reversed the motion finding an employer can potentially be held liable where an employee uses a work computer for child pornography purposes. The employee in question had photographed and videotaped his ten-year old step-daughter nude, subsequently posting the material on a child pornography site via his workplace computer. The employer has a policy in place, which all employees must agree to as part of their employment agreement, stating e-mails are the property of the employer and not the employees, employees are subject to the monitoring of their work computers, and employees must report any unacceptable workplace activity witnessed on a co-workers computer. The employee in question had been reported numerous times to superiors for allegedly viewing pornographic material on his computer during work hours. Twice, supervisors inspected the employee’s computer, examining the list of recently visited websites and observing that some were pornographic in nature. Although the sites were never opened by supervisors, the name of at least one site indicated it was potentially child pornography. Although the employer’s policy allowed for the dismissal of an employee in breach of the agreement, the employee in question was merely reprimanded on both occasions.

A lawsuit was filed by the victim’s mother, alleging negligence of the employer due to its failure to adequately monitor the employee’s computer. To be found liable for negligence, the Plaintiff must prove a duty exists on the part of the employer to monitor the employee’s computer, that duty was breached, and that breach of duty caused the Plaintiff’s injuries. In the motion for summary judgment filed by the employer and initially granted, the Court held the final element of negligence could not be met because the sexual abuse of the victim would have occurred regardless of whether the employer had monitored the computer. On appeal, however, the Superior Court reversed the motion and remanded the case for trial. The Court found the employer had both the ability and the right to monitor the employee’s work computer. The employer had knowledge of the employee’s past access of pornographic websites, giving rise to a duty to prevent the possible harm to others. Although the employee potentially could have used another computer had he not been able to post the pornography via his workspace, the Court held the issue of cause as one for a jury to decide and remanded the case accordingly. The Court’s ruling illustrates an employer’s potential liability for an employee’s criminal acts, within the scope of business.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

A plan which would have allowed single-game betting on all major sporting events at Delaware’s three racetrack betting locations, beginning September 1st, was not allowed to take effect. The United States Court of Appeals for the Third Circuit ruled the plan a violation of a 1992 Federal Law. The Professional and Amateur Sports Protection Act of 1992 outlawed sports betting nationwide, with the exception of a few states. The Act allowed Nevada to continue licensed sports betting and also exempted the sports lotteries conducted by Oregon, Montana, and Delaware. The Act also provided a one-year grace period for states, who had allowed sports betting over the previous ten-year period, to create legislation permitting sports wagering; a clause which was clearly crafted for the State of New Jersey, however the State chose rather to let the grace period lapse. The Act applies to all major sporting events, both professional and amateur, with exceptions for horse and dog racing, and also jai alai, a Spanish sport which has not gained much popularity in the United States.

Delaware wished to institute its sports betting plan in accordance with the PASPA’s exemption for Delaware’s sports lottery; the proceeds to help offset an $800 million state budget deficit. Attorneys for the four major professional sports (football, basketball, baseball, and hockey) argued that allowing betting on single game sporting events would compromise the integrity of the games by promoting game fixing. Attorney Kenneth Nachbar argued the Act’s exemption for the Delaware sports lottery does not allow the State to institute single-game betting, stating “the closer you get to single-game betting, the more you call into question the integrity of what happens on the field or on the court.” Rather, Delaware’s sports lottery, which has not been in existence since 1976, allowed for betting on multiple games via parlay bets. Attorneys for the State of Delaware argued the plan meets the definition of a lottery under the 1992 Act, but to no avail.

Last year, Tim Donaghy, a referee in the National Basketball Association, was charged with crimes relating to betting on single games and passing along inside information to bookies. It is still unknown for sure whether Donaghy, through his position as a referee, affected the outcome of any NBA games he worked. He pled guilty to Federal Fraud charges and was sentenced this summer to fifteen months in prison.

Fraud

Fraud is defined as an intentional deception made for personal gain or to damage another individual. Fraud can be committed in many forms, including tampering with sporting events or other events which invite legal betting. The penalties for committing fraud vary, depending on the type of fraud and the damage caused by the fraudulent activities. The Law Offices of Marc Neff have over 20-years of experience successfully defending clients charged with fraud and related offenses. If you are under investigation of fraud, or have been charged with a criminal offense, contact our offices immediately. There are defenses available to you, and the Law Offices of Marc Neff can assist in developing a successful defense.

A case decided in the Supreme Court of the United States this past summer has held the use of cellular telephones between buyer and seller, to make misdemeanor drug purchases, does not constitute facilitating under United States statue; facilitation would otherwise constitute a felony. Federal Investigators suspected a man of trafficking and/or dealing drugs, and subsequently obtained a warrant to issue a wiretap on his cellular phone. While monitoring the wiretap, Investigators observed six phone calls between the man and a customer, some made by the man and some initiated by the customer. The six phone calls related to two transactions, each for one gram of cocaine. The sale of the cocaine is treated as a felony under United States statute; however the purchase of such minor quantities constitutes misdemeanor offenses.

Nevertheless, the buyer was arrested and charged with six felonies, one count for each phone call which took place between buyer and seller. The Government charged the buyer under 21 U.S.C. §843(b), a section of the Controlled Substances Act which makes it illegal to use any communication facility in facilitating felony distribution and other drug crimes. The Government argued that the communication between buyer and seller via cell phone facilitated the seller in his efforts to distribute controlled substances.

The Court held the Government’s interpretation of the statute was too broad, reversing the buyer’s felony convictions from the lower courts. The Court determined that the facilitation statue was not intended to increase the penalties of misdemeanor purchasers, rather to increase penalties of traffickers involved in the sale, purchase and distribution of larger quantities. The Court reasoned that in modern society, cellular telephones are prevalent and unfortunately are also used in making drug purchases. The use of a cellular phone in making a misdemeanor purchase does not facilitate the seller in making the sale, rather it creates a buyer-seller relationship which otherwise would not have existed. Punishing a purchaser under the felony statute, for making a purchase otherwise constituted as a misdemeanor, was not Congress’ intent in legislating the Controlled Substance Act.

Drug Possession

Possession of a controlled substance is a crime which carries many harsh penalties. Depending on the quantity of controlled substance you are found to possess, you may even be charged with intent to deliver or drug trafficking. Such charges carry even greater penalties. Larger quantities mandate longer minimum sentences as well.

Drug offenses are serious matters which involve serious penalties. If you have been charged with a drug offense, there are many defenses which may be available. Contact a Philadelphia Criminal Defense Lawyer immediately, so that your situation can be assessed and a defense to your charges can be developed.

A recent appellate decision affirmed a suppression of evidence order, granted due to a governmental violation of Pennsylvania’s Wiretap Act. Pennsylvania’s Wiretap Act criminalizes the intentional interception of wire, electronic, and oral communications and prohibits the use of any communication derived from such an interception. Accordingly, Police must strictly comply with the requirements of the Wiretap Act in order for the fruits of their investigation to be admissible at trial. Any non-compliance, even when in good faith, will cause the illegal interceptions to be suppressed.

Two individuals were stopped by Pennsylvania State Police while driving on a Pennsylvania highway when the officer noticed the vehicle was speeding. After citing the driver, the officer asked the individuals about their travel plans, as the vehicle was registered out-of-state. Two conflicting stories were given by the vehicle’s occupants, arising suspicion in the officer. The officer then asked if the individuals were transporting any firearms or narcotics to which the driver nervously responded that he had a weapon. The driver then consented to a search of the vehicle, upon which thirty-five pounds of marijuana, methamphetamine, paraphernalia, a handgun, and a cellular “tracfone” were found. The men were taken into custody; upon questioning, the passenger admitted he had been approached by a man named “Steve” who agreed to purchase thirty-five pounds of marijuana from him. The tracfone would be used to keep in contact and set-up the final meeting spot.

The officer, without first obtaining a warrant, began text-messaging Steve from the phone, to which Steve suspiciously responded with questions only his cohort would know. Obtaining the answers from the passenger, the officer responded and gained Steve’s trust. When a meeting place was established as a parking lot, Pennsylvania State Police began surveillance of the lot. Spotting a vehicle with New York license plates, and information that Steve was from New York, a uniformed officer in a marked car pulled-in behind the vehicle, asked if one of the occupants were named Steve, and after receiving an affirmative response, arrested the individual. At trial, the Court suppressed the evidence obtained, citing a violation of Pennsylvania’s Wiretap Act. The Commonwealth appealed this order.

The Commonwealth raised the issue of whether the trial court erred in finding the intercepted text-messages were obtained in violation of the Wiretap Act. The Commonwealth argued that the text-messages were not intercepted illegally and that the Act was not intended to prevent misrepresentation of identity; the Commonwealth argued that when the officer began sending the text-messages, he became the intended recipient. The Commonwealth also suggested that “interception” requires the use of a separate device and no expectation of privacy existed as the text message could have been shared once received.

The Superior Court examined the Wiretap Act on its face and ruled the Commonwealth’s arguments either wrong or irrelevant. Nowhere in the Act does it state interception requires the use of a separate police device. The Court further ruled that the facts of this case differed from cases cited by the Commonwealth in their brief, in that the phone was not voluntarily given to police, nor were the interceptions explicitly consented to by any of the parties. In a concurring decision, Justice Stevens opined that the state of Pennsylvania’s Wiretap Act gives narcotics dealers an enormous advantage over law enforcement; by the time the Act has been complied with by Police, the drug-dealers have long since completed their transactions. Nevertheless, he wrote that the majority opinion of the Court was correct based on the current state of the law.

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible and what is not. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

The Commonwealth Court of Pennsylvania recently affirmed a Common Pleas decision in favor of a suspected drunk driver, on appeal by the Department of Transportation, Bureau of Driver Licensing. Police were called to the seen of a single-car accident in the early morning hours of August 28, 2007. The driver was found by an arriving officer, sitting on the curb next to his overturned vehicle and claiming he had fallen asleep behind the wheel. The officer began questioning the driver and noticed that the driver was slurring his speech. The officer then asked the driver to submit to a field sobriety test. The driver agreed to the field testing, which involved the walk-and-turn, standing on one-leg, and the finger-to-nose test. The driver subsequently failed the test. The driver was arrested, read his Miranda rights, and also advised of Pennsylvania’s implied consent law, requiring the driver to submit to chemical testing or face an automatic one-year license suspension.

At trial, the officer testified that when he arrived on scene, the driver had slurred speech, unsteady gait, and could not maintain his balance. He further testified that the driver refused medical treatment. The officer claimed that based on the aforementioned facts, he had reasonable suspicion to suspect intoxication. On cross-examination, however, the officer admitted he had administered a breathalyzer test to the driver which was negative for intoxication. The officer further admitted he searched the vehicle for evidence of drugs or other contraband, finding none.

The driver was picked-up from the Police station by a family member and was taken immediately to the hospital. Upon examination, it was discovered that the driver had likely suffered a head injury from the accident. The Court found that the suspicions of the officer could have been attributed to a head injury, rather than intoxication. Further, the officer had administered a breathalyzer and a search of the vehicle which both produced negative results as to intoxication; his suspicions were therefore no longer reasonable as to require the driver to submit to chemical testing. Finally, the Court held the driver could not have knowingly and voluntarily refused chemical testing, due to his head injury and condition.

Important to note is a dissent to the decision, pointing out that an officer’s reasonable suspicion is not unreasonable if later proven to be false. Also, the dissenting Judge was perturbed because no doctor testified at trial as to the driver’s head injury and whether it could have affected his knowing and voluntary refusal to testing. Nevertheless, the majority of the Court affirmed the trial decision, holding no violation of Implied Consent and therefore no suspension of driving privileges.

Drunk Driving

Driving under the influence in Pennsylvania is a serious matter, as it is in every state, and carries minimum penalties required by Pennsylvania statute. The mandatory minimum is based on elements of the conviction, with increases in the mandatory minimum based on any previous conviction for DUI or comparable offense within the past ten years. Penalties can range from 6-months probation to up to one year in prison; along with other fines and penalties.

If you have been arrested for Drunk Driving, DUI, DWI, or Underage Drinking, contact a Philadelphia Criminal Defense Attorney immediately. There are defenses which are available to you, which can reduce or eliminate penalties associated with these charges. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or email: Marc@nefflawoffices.com.