May 2, 2014

PA Supreme Court Rules That No Warrant Is Needed to Search Vehicles

The Pennsylvania Supreme Court has recently ruled that a search warrant is no longer needed when searching a vehicle, so long as probable cause exists. The Court determined that the Pennsylvania Constitution does not provide a greater protection than the Federal Constitution and effectively brings the Pennsylvania search and seizure law in alignment with Federal law.

The facts presented to the court arise from a motor vehicle stop in Philadelphia. The officers stopped the vehicle on a motor vehicle violation and on their approach to the vehicle, noticed a strong odor of marijuana emanating from the vehicle. When asked if there was anything in the vehicle that the police should know about, the operator admitted that there may be weed in the car. Based upon the strong odor of marijuana and the admission by the operator, the court determined that there was sufficient evidence to support a finding of probable cause.

Based on this ruling, the Court review reveals no compelling reason to interpret Article I, Section 8 of the Pennsylvania Constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. This is a direct departure from the current Pennsylvania law directing that warrants are needed for vehicle searches. Therefore, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. Now, the prerequisite for a warrantless search of a motor vehicle is probable cause to search.

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March 4, 2014

Pennsylvania Supreme Court Declines to Apply “Good Faith Exception”

The Supreme Court of Pennsylvania has issued an opinion declining to apply the “good faith exception” for an individual’s arrest. In March of 2010, a Pennsylvania State Trooper received radio communication that a vehicle was involved in a drug transaction, and then observed that the vehicle had a broken tail light. The Trooper initiated a traffic stop for the vehicle. The Trooper requested identification from the defendant, driver of the vehicle. After processing the defendant’s name through his patrol car computer, the Trooper received a “hit” message advising there was an active warrant. The Trooper placed the defendant under arrest and discovered drugs. Some time later, the Trooper determined that the warrant notification he relied upon when he arrested the defendant was no longer valid and should have been recalled since the warrant was already served about a week earlier. The defendant was still charged with possessing the drugs.

The Supreme Court ultimately held that as a fact, the Trooper had acted in good faith in arresting the defendant on the basis of what the Trooper believed was an active warrant, but the Court reasoned that there is no good faith exception to the exclusionary rule under the Pennsylvania Constitution. The court concluded that the physical evidence, as well as statements obtained later at the police barracks, were fruits of an illegal arrest based on an invalid warrant, and therefore must be suppressed.

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October 25, 2013

United States Supreme Court Says GPS Tracking Requires a Warrant

Antoine Jones was being investigated by the FBI and a local police department for narcotics violations. During the course of the investigation, the FBI placed a global positioning device on Jones’s vehicle without a warrant. This device tracked his movements 24 hours a day for about four weeks. The government used the tracking information in the criminal trial against Jones to show his whereabouts and to show how Jones visited the “narcotics stash house” on multiple occasions.

After numerous arguments and appeals, the Supreme Court ultimately held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment. This police action violated Jones’s reasonable expectation of privacy. This violation precluded the government from introducing the tracking information at trial against Jones.

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September 25, 2013

No Warrant Needed for Inventory Search of Unresponsive Crash Victim’s Vehicle

Danielle Gatlos was involved in a motor vehicle accident in Pennsylvania. When the police arrived on the scene, she was unconscious and unresponsive. The officers went into Danielle Gatlos’ vehicle and handbag to obtain her identity and to inventory her belongings. During this investigation, the police discovered marijuana. Danielle was eventually charged with possession of marijuana and DUI. Before trial, a motion to suppress the physical evidence was presented to the court where the defense attorney argued that the evidence was obtained illegally and violated the constitutional protections afforded to individuals against illegal search and seizures.

The Court denied the motion to suppress the physical evidence and held that the police may conduct a warrantless inventory search of a vehicle for the purpose of identifying an unresponsive and otherwise unidentifiable crash victim. The court explained that an inventory search must be conducted pursuant to reasonable police procedures, in good faith, and not as a substitute for a warrantless investigatory search. Here, the inventory search for the victim’s identity was conducted pursuant to standard police procedure, in a good faith attempt to identify the victim, who was unconscious and in immediate need of medical assistance. Thus the marijuana that was found in the car was admissible at the trial.

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September 13, 2013

Attorney General Proposes Drug Sentencing Reforms

Attorney General Eric Holder has approached the Justice Department with a new initiative called “Smart On Crime.” Mr. Holder is calling for major changes to the nation’s criminal justice system that would hopefully scale back the use of harsh mandatory sentences for certain drug-related crimes. Mandatory minimum prison sentences were initiated in the 1980's during the government’s war on drugs. The result of these mandatory sentences limited the discretion of judges to impose shorter prison sentences and has led to significant prison overcrowding.

Mr. Holder has claimed that the mandatory minimum prison sentences are “ultimately counterproductive” and is hoping that low-level, non-violent drug offenders will not be charged with offenses that require the mandatory minimum sentences. Moreover, he believes that people convicted of low-level offenses should be diverted to diversion programs that would include drug treatment and community service. When formulating these proposals to the Justice Department, Mr. Holder cited several states, including Pennsylvania, for its efforts in investing in being smart on crime and its diversion programs to help relieve the growing prison population.

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September 3, 2013

Third Circuit Grants a New Trial in Drug Distribution Case

In Unites States v. Terrell Davis, Police arrested Terrell Davis after finding him in a Jeep with nearly a kilo of cocaine in the backseat. The arrest led to a conviction for possession with intent to distribute. As evidence that Davis recognized the cocaine in the Jeep, the government proved at trial that he had two prior convictions for possessing cocaine. However, the government never proved that the cocaine from his past was similar in appearance, quantity, or form. The matter was appealed to the United States Court of Appeals for the Third Circuit. The Appeals Court granted a new trial reasoning that the prior convictions were inadmissable to prove knowledge or intent for possession with intent to distribute.

The Federal Rules of Evidence and American courts have long excluded evidence of a person’s prior bad acts and prior crimes. A person charged with a crime, may only have their prior bad acts and prior crimes introduced at trial for very specific and limiting purposes. This tradition reflects a fear that the jury will place too much weight on past crimes and prior misdeeds.“[I]t is said to weigh too much with the jury and to so overpersuade them as to prejudice one with a bad general record and deny [the accused] a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 476 (1948). The risk is that jurors will focus on evidence of prior acts, believing that someone with a criminal record cannot change and may discount any evidence to the contrary.

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March 28, 2013

Seventh Circuit Reiterates the Importance of a Suspect Invoking Right to Counsel

In United States v. Hunter, officers stopped a truck after they witnessed occupants apparently engaging in a drug deal. Hunter fled from the passenger seat with something resembling a gun in his hand. Officers ordered Hunter to stop, but Hunter continued to run. The officers heard a gunshot and fired at Hunter, striking him in the left buttock and in the foot. Hunter fell to the ground and was handcuffed. Police recovered a revolver from the ground close to Hunter, with one spent shell casing in the cylinder. Hunter was transported to a hospital by ambulance.

A Detective Karzin accompanied Hunter to the hospital, and Hunter was handcuffed to the hospital gurney at all times. Doctors administered narcotics, but a treating nurse later testified that he had remained “alert and oriented.” While Hunter was receiving treatment, Karzin sat silently in the room until Hunter initiated interaction. Karzin read Hunter his Miranda rights. At some point, Hunter gave the name of his lawyer and asked if Karzin would call him. Karzin did not do so. Hunter made incriminating statements to officers who arrived after the conversation. The district court suppressed the statements. The Seventh Circuit affirmed, stating that because appellant unambiguously and unequivocally invoked his right to counsel, the officers should have stopped questioning him. As a result, the statements appellant made after asking for his attorney were properly suppressed.

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December 21, 2012

What You “Need to Know” to Help Make Meth

In United States v. Munguia, 2012 U.S. App. LEXIS 24294 (9th Cir. Nov. 27, 2012), Appellant was charged with drug conspiracy and possession. She was alleged to have purchased a significant amount of pseudoephedrine at the direction of one of her co-defendants. Pseudoephedrine is a common ingredient in many over-the-counter cold medications, including Sudafed, Claritin-D, and similar cold-and-allergy medications. Pseudoephedrine is also a methamphetamine precursor, and is therefore strictly regulated.

The key issue at trial was whether Munguia knew or had reason to know that the drugs she purchased were being used to manufacture methamphetamine. Given this focus, she requested a jury instruction explaining that "reasonable cause to believe" must be evaluated from her perspective, based on her knowledge and sophistication. The District Court refused her request. On appeal, the Court of Appeals held that the district court erred in failing to give defendant's requested jury instruction and that the error was not harmless. The instruction given by the district court provided that "reasonable cause to believe" had to be evaluated from the perspective of a hypothetical reasonable person rather than from the perspective of defendant. The "reasonable cause to believe" standard of § 841(c)(2) required a jury to evaluate scienter through the lens of the particular defendant on trial. The jury therefore had to be instructed to consider the knowledge and sophistication of the particular defendant on trial, not that of a hypothetical reasonable person not before the court. The error was not harmless because it was not clear beyond a reasonable doubt that a rational jury would have found defendant guilty absent the error. The appellate court reversed Munguia’s convictions.

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December 12, 2012

No Crack Reduction for Career Offenders Even if Sentence is Based On the Crack Range

In United States v. Ware, 2012 WL 4216831 (3d Cir. Sept. 21, 2012) Defendants, each designated career offenders, were ultimately sentenced based on the federal crack cocaine guidelines through a variance and a departure. Each moved for sentence reductions under 18 U.S.C. § 3582(c)(2), based on the amended crack cocaine guidelines implementing the Fair Sentencing Act of 2010.

In the first case, Ware, the district court granted the motion for sentence reduction, reasoning that the sentence was "based on" the crack guideline (as required in 18 U.S.C. § 3582) as that term was defined by the plurality and Justice Sotomayor in Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (holding that "if a [plea agreement pursuant to Rule 11(c)(1)(C) ] expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2)."). The district court held that a newly amended application note in U.S.S.G. § 1B1.10 defining "applicable guideline range" to mean pre-departure or pre-variance range, thus precluding eligibility for career offenders, was invalid because it conflicted with the meaning of "based on" in the federal statute as defined by Freeman. The government appealed.

In the second case, Stratton, the district court declined to reduce the sentence after the 2010 amendments, finding Stratton ineligible because of the Commission's new commentary and rejecting his argument that the new commentary was invalid. Defendant also appealed, and the cases were consolidated.

The Third Circuit reversed the decision in Ware and upheld that in Stratton. The Court opened its analysis by noting that the Sentencing Commission is authorized by statute to determine "in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced." 28 U.S.C. § 994(u). Consequently, the Commission’s amended commentary is binding unless it conflicts with a statute’s plain language. citing United States v. LaBonte, 520 U.S. 751, 757 (1997). The amended commentary in question reads:
... Eligibility for consideration under 18 U.S.C. 3582(c)(2) is triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance)....U.S.S.G. § 1B1.10 cmt. 1(A).

Thus, the commentary precludes a reduction in any case where a sentence is calculated using the career offender provision, even if a variance or departure were granted, and the ultimate sentence was based explicitly on the drug guideline. Ware and Stratton argued that the commentary improperly redefined eligibility and the meaning of "based on" in § 3582, in conflict with the Supreme Court’s interpretation in Freeman.

The Court disagreed, finding that the plain language of § 3582(c)(2) authorizing the court to reduce the sentence of a defendant who was sentenced "based on" a sentencing range that has been lowered, also requires any reduction be "consistent with applicable policy statements issued by the Sentencing Commission." Therefore, the plain language of the statute incorporated the Commission's statements which, although narrowing eligibility, did not run contrary to § 3582(c)(2). The Court further found that the commentary did not present an interpretation of the statutory term "based on," but instead an additional limit on eligibility, therefore the meaning of the term "based on"—and the holding of Freeman—were not relevant.

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September 12, 2012

If Police Prevent Your Car From Legally Moving, They Have Seized You

In United States v. Jones, 678 F.3d 293; 2012 U.S. App. LEXIS 9513, Defendant Frederick Jones was convicted of one count of possession of a firearm by an unlawful user of controlled substances, in violation of 18 U.S.C.S. § 922(g)(3), and the U.S. District Court for the Eastern District of Virginia sentenced him to 41 months' imprisonment and a 3-year term of supervised release. Defendant appealed the denial of his suppression motion.

In Jones, two police officers in a marked patrol cruiser closely followed a car from a public road onto private property, and then blocked the car's exit. The officers observed no traffic violation. The only assertedly suspicious activity they saw was the car's presence in a high-crime neighborhood with out-of-state tags. These facts alone led the officers to suspect that the car's occupants, four African American men, were involved in drug trafficking. Immediately after the driver, Frederick Jones, exited his car, the officers approached him and asked that he lift his shirt, which he did. The officers then asked him to consent to a pat down search, which he did. After neither the shirt lift nor the search revealed anything, the officers discovered that Jones had committed a traffic violation, and so detained him. Subsequently, they found he possessed a firearm and a small quantity of marijuana.

Defendant moved to suppress the evidence, alleging that the officers illegally seized him when an officer asked him to lift his shirt and then submit to a pat down search – an encounter that the Government contended was consensual. The appellate court agreed with Defendant, holding that although the officers did not draw their holstered weapons or use a threatening tone, the existing circumstances – including the fact that Defendant’s car was blocked from leaving – would suggest to a reasonable person that the officers were not treating the encounter as routine in nature, but rather that the officers were targeting him because he was engaged in illegal activity. The court noted, “Any one of these facts on its own might very well be insufficient to transform a consensual encounter into a detention or seizure, but all of these facts viewed together crystallize into a Fourth Amendment violation”. Id. at 305.

The judgment of the district court was reversed and the case was remanded for further proceedings.

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August 10, 2012

Eighth Circuit Finds That Two Nearly Simultaneous Drug Sales Are One Offense for Sentencing Purposes

In United States v. Willoughby, 653 F.3d 738 (8th. Cir. 2011), Defendant Willoughby appealed from the United States District Court for the Western District of Missouri, which designated him an armed career criminal under the Armed Career Criminals Act (ACCA), 18 U.S.C.S. § 924(e) and sentenced him to the ACCA's mandatory minimum sentence of 15 years' imprisonment.

The presentence report (PSR) prepared in advance of Willoughby’s sentencing recommended that defendant be classified as an armed career criminal, pursuant to the ACCA. Defendant objected to this finding by the PSR, specifically challenging whether his selling marijuana to two different people during one drug deal constituted two offenses that were committed on different occasions as the ACCA required. Reversing, the court rejected the government's argument that defendant's sale to an undercover officer and, seconds later, to a confidential informant, constituted "separate and distinct criminal episodes," instead finding that the sale was, in actuality, one continuous course of conduct.

The court noted that it had never held two convictions to be sufficiently separate and distinct to serve as predicate ACCA convictions where those convictions were for drug offenses that the defendant committed, in essence, simultaneously. The insignificant disparity between the amounts of marijuana that the officer and the confidential informant purchased was insufficient to demonstrate a substantive discontinuity. The court reversed and remanded for resentencing.

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June 8, 2012

5th Circuit Increases Defendant’s Sentence for “Importation” of Narcotics in Routine Distribution Case

In U.S. v. Rodriguez, 666 F.3d 944; 2012 U.S. App. LEXIS 202, Defendant Melanie Marie Rodriguez pled guilty to possession with intent to distribute more than fifty grams of a mixture and substance containing methamphetamine in violation of 21 U.S.C.S. § 841(a)(1) and (b)(1)(B). The United States District Court for the Northern District of Texas sentenced defendant to 180 months' imprisonment and five years of supervised release. Defendant’s sentence was enhanced under U.S.S.G. § 2D1.1(b)(4) because the district court determined that the offense "involved the importation of amphetamine or methamphetamine. . . ." On appeal, Defendant argued that the offense did not involve the importation of methamphetamine, because the importation was complete before she came into possession, and she was not involved in the importation.

The record established that the methamphetamine in question was transported from Mexico to the Dallas area by the La Familia drug trafficking organization, then stored in the "stash house" of its local leader, Arnulfo Hernandez. Hernandez sold the methamphetamine to a man named Rolando Vasquez, who sold it to Defendant on about six to ten instances over the course of approximately two to three months. Hernandez sometimes accompanied Vasquez to deliver the drugs to Defendant.

With regard to Defendant’s arguments, the appellate court determined that Defendant's offense involved the importation of methamphetamine because (1) even if the appellate court accepted her narrower interpretation of "importation," it meant only that she did not import the drugs, not that her possession did not involve importation, and (2) her proximity, familiarity, and repeated business with the importers justified the enhancement.

The court found that there was sufficient evidence to support the finding that Defendant knew the drugs were imported. The Court noted that Defendant and her husband had an established relationship with Vasquez, from whom they had been buying drugs weekly for at least nine months. Defendant had been buying from Vasquez for only about three months, but she took over for her husband after he was incarcerated. Furthermore, Hernandez, the local leader of a drug-trafficking organization based in Mexico, would sometimes accompany Vasquez to Defendant’s house to deliver drugs. The appellate court affirmed the judgment of sentence.

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March 12, 2012

Police Must Have Probable Cause that a Crime is Being Committed in Order to Seize a Vehicle While Waiting to Obtain a Search Warrant

Commonwealth of Pennsylvania v. Trayvon Nmn Joseph, 34 A.3d 855, was an appeal from a Judgment of Sentence in the Court of Common Pleas. Joseph appealed his convictions for persons not to possess, use, manufacture, control, sell, or transfer firearms, in violation of 18 Pa.C.S. § 6105(c)(2), and firearms not to be carried without a license, in violation of 18 Pa.C.S. § 6106(a)(1).

Appellant had been pulled over by a Pennsylvania State Trooper who claimed that there were four types of drug paraphernalia in appellant’s vehicle: (1) a number of air fresheners hanging from the rear view mirror; (2) a small burlap bag of potpourri on the dash near an air vent; (3) bars of soap on the back seat; and (4) a wrapped "blunt" cigar on the passenger seat. After returning to his vehicle to write out a warning card for appellant, the trooper ran a record check and found that appellant had a "significant drug history," including prior charges for possession and possession with intent to deliver. Based on this, the trooper told appellant he would detain the vehicle on the side of the road and apply for a warrant to search it. Defendant did not consent to a search, and left the scene with his car locked and running. The trooper called a tow truck to move appellant’s vehicle and when it arrived, conducted what he called an inventory search of the vehicle, discovering a loaded handgun under a jacket on the floor.

Appellant’s motion to suppress was denied by the trial court. The Appellate Court held that the trial court erred by ruling that the existence of reasonable suspicion justified the trooper's seizure of appellant's vehicle pending the submission of an application for a search warrant. The court held that the trial court erred in denying appellant's motion to suppress evidence obtained from his vehicle after its seizure without probable cause as the officer’s seizure of his vehicle during the course of the traffic stop was impermissible because it was not constitutionally justified.

The court concluded that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified based upon mere reasonable suspicion.

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March 9, 2012

Fourth Amendment Protects Homes From Warrantless Drug Dog “Sniff Tests”

The Supreme Court of Florida has decided the case of Joelis Jardines, Petitioner, v. State of Florida, Respondent, No. SC08-2101, 2011 WL 1405080 (April 14, 2011).

In this matter, police conducted a warrantless "sniff test" by a drug detection dog at defendant's home and discovered live marijuana plants inside. The trial court granted defendant's motion to suppress, the district court reversed, but the Supreme Court stated that the warrantless "sniff test" that was conducted at the front door of the residence was an unreasonable government intrusion into the sanctity of the home. The court stated, “The United States Supreme Court has held that at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Or, more succinctly, with few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no."

The court further found that the "sniff test" at issue was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence.

The court felt that if government agents could conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there would be nothing to prevent the agents from applying the procedure in an arbitrary and discriminatory manner, or based on whim and fancy, at the home of any citizen. Therefore, the warrantless "sniff test" that was conducted at the front door of Jardines’ residence was an unreasonable government intrusion and a violation of the Fourth Amendment of the United States Constitution.

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November 12, 2010

Charges Dropped Against Rapper T.I.

Prosecutors recently dropped drug charges against rapper T.I. stemming from his September arrest in Los Angeles with his wife, Tiny. Police had stopped the two after their vehicle made an illegal U-turn, at which time officers reported smelling marijuana as they approached the car. After searching the car and its occupants, police discovered tablets of the illegal drug Ecstasy.

Although the Los Angeles District Attorney’s Office elected to drop charges against the rapper, his arrest and subsequent failed drug test violated the terms of his probation for his 2007 federal felony gun conviction. T.I. served nine months in federal prison after securing an usual plea bargain which required him to complete 1500 hours of community service and remain on house arrest in exchange for a lesser sentence. He was also required to complete a probation period, upon which he remained at the time of his September arrest. As a result of violating the terms of his probation, T.I. will return to federal prison for eleven months.

Unlike her husband, who avoided state court charges because of his federal probation violation and return to federal prison, Tiny could face up to one year in jail in California if found guilty on the state possession charge.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at

September 21, 2010

Sentencing in Drug Case Vacated

The Superior Court of Pennsylvania recently vacated a defendant’s conviction for drug charges upon a finding that the evidence was obtained as a result of an unlawful search and seizure. In 2008, the defendant was arrested and charged with possession and possession with intent to distribute a controlled substance after he was found carrying large quantities of marijuana and crack cocaine. An on-duty officer had noticed the defendant on a street corner with three separate individuals over the course of an hour, each time entering a near-by grocery store when he noticed that the patrol car. Although the defendant had entered the store on three separate occasions, he never appeared to make any purchases.

After making these observations, the officer pulled alongside the defendant and requested his identification, exiting the patrol car. The officer then went back inside his car to run the defendant’s license, making conversation with him during this time. After discovering that the defendant had an outstanding warrant, the officer placed him under arrest. The officer then performed a routine search of the defendant and found thirty-six bags of crack cocaine, eleven bags of marijuana, and $1235.00. In 2009, the defendant was convicted in Berks County of two counts each of possession of a controlled substance and possession with intent to distribute a controlled substance.

Upon review, the Superior Court held that the officer’s conduct in taking and maintaining possession of the defendant’s license while he ran a background check constituted an investigative detention, because no reasonable person in the defendant’s possession would have felt free to terminate the encounter with the officer and depart the scene. As such, the detention must have been based on the officer’s reasonable and articulable suspicion that the defendant was involved in criminal activity, which the Court further found that the officer lacked. The Court noted that the officers observations had been nothing more than the defendant meeting with three men and walking into and out of a grocery store, all of which were lawful activities.

Those accused of crimes are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at

September 15, 2010

Prosecutorial Misconduct Causes Reversal in Drug Case

The Third Circuit Court of Appeals recently vacated a defendant’s conviction on the grounds that the prosecutor’s introduction of testimony, that he had promised not to rely on at trial, had deprived the defendant of a fair trial. In US v. Liburd, Liburd was convicted of attempted importation of cocaine and possession with intent to distribute more than 500 grams of cocaine.

On Oct. 4, 2008, Liburd attempted to board a flight to Atlanta from the St. Thomas airport. As he passed through TSA security, one of the officers noticed an image of two large masses in his carry-on bag. He was referred to an inspection station, where another TSA officer searched his bag and asked about the two brick-like masses, which Liburd identified as “cheese.” He was subsequently permitted to continue to his flight, where, as he waited to board, another officer approached him for a “random inspection” because he appeared to be nervous. Upon a second search of his carry-on bag, Liburd made a statement that “there’s something in my bag.” The search revealed that the two brick-like objects were in fact over 2 kilograms of cocaine. Liburd was subsequently charged with possession with intent to distribute more than 500 grams of cocaine and attempted importation.

Liburd moved to suppress the statement “there’s something in my bag” and the cocaine. Defense counsel did not move to suppress Liburd’s statement that the cocaine was “cheese” during the first search of the bag because, at that time, the statement had not been disclosed. At the suppression hearing, the prosecutor stated that he would not rely on any statements made by Liburd at trial. As a result, the court declined to rule on the admissibility of the statements.

Right before the trial, the prosecutor disclosed Liburd’s “cheese” statement. At trial, he repeatedly referred to Liburd’s cheese statements. The court declined defense counsel’s objection and request for a mistrial, instead giving jurors an instruction not to consider statements attributed to Mr. Liburd that were improperly introduced. Liburd was convicted on both charges, and subsequently appealed.

On appeal, Liburd argued that the prosecutor’s use of his cheese statement was misconduct that violated his right to due process. The Court of Appeals agreed, explaining that once a prosecutor makes a promise to defense counsel, or the court, they are committed to keeping it, and that the prosecutor’s actions made a fair trial impossible in this case, therefore violating Liburd’s due process rights under the Fifth Amendment. The Court specifically noted that the prosecutor’s promise not to use any of Liburd’s statements affected his trial strategy, because but for this promise, the strategy would have been different. The Court vacated Liburd’s conviction and remanded the case for further proceedings.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at

June 14, 2010

Pennsylvania Superior Court Holds that Trial Court May Impose Both Mandatory Minimum and Conditional Minimum Sentences upon a Defendant, Pursuant to State Statutes

The Superior Court of Pennsylvania recent decided an appeal by the Commonwealth of Pennsylvania, in the case of Commonwealth v. Hansley. In Hansley, Frederick Hansley pled guilty to one count of possession with intent to deliver a controlled substance, for an incident in which he sold cocaine to a police officer in September of 2008. Hansley pled guilty to a second count of possession with intent to deliver for an incident in which he sold cocaine to the same officer in October of 2008. Both sales were conducted within 1,000 feet of a school zone. Hansley’s guilty pleas subjected him to mandatory minimum sentences, according to state statute, of one to two years for selling drugs in a school zone and three to six years for the possession with intent to distribute charges.

The Recidivism Risk Reduction Incentive Act, or RRRI, is a Pennsylvania statute which allows a Court to impose conditional minimum sentences upon a defendant; the act is written to allow non-violent offenders an early release from prison so long as they comply with the necessary requirements. The amount of controlled substance in Hansley’s cases required the imposition of mandatory minimum sentences according to statute, however also allowed for sentences to be imposed under the RRRI. As such, Hansley was sentenced to the mandatory minimum sentences of one to two and three to six years respectively, but also allowed entry into the RRRI program with minimum sentence of eighteen to twenty-seven months. Therefore, Hansley would be eligible for parole after the conditional minimum sentence is served, assuming he’s complied with all necessary requirements under the program; a shorter term than the mandatory minimum sentence imposed.

The Commonwealth appealed Hansley’s sentence to the Superior Court, citing the RRRI’s conditional minimum sentences conflicted with the mandatory minimum sentences which were required by statute. The Commonwealth argued that the Trial Court did not have authority to impose sentence under the RRRI where a mandatory minimum sentence is in place. The Superior Court discussed the assumption that when a new law is passed, the legislature considers all applicable laws which are currently in place. Since there is no mention in the RRRI as to a conflict with the applicable statutes to Hansley’s case, the Court rationed that the Trial Court was at liberty to impose the sentence as such. Further, the Court reasoned that Hansley must comply with the requirements under the RRRI in order to receive early parole; otherwise he will serve the entire sentence as applicable under the mandatory minimum statute.

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 be charged with intent to deliver or drug trafficking. Such charges carry even greater penalties. For example, possessing between 2 and 10 grams of crack-cocaine with intent to traffic carries a minimum penalty of 1 year in prison for a first offense, and 3 years for subsequent offenses. 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. To schedule a confidential consultation contact Marc Neff at (215) 563-800 or email at

March 25, 2010

Philadelphia Appellate Court Upholds Conspiracy Conviction in One Hundred Kilogram Cocaine Trafficking Case

In a precedential decision, the Unites States Court of Appeals for the Third Circuit reversed a judgment of acquittal from the United States District Court for the Eastern District of Pennsylvania, resulting from a 2007 drug trafficking operation involving one hundred kilograms of cocaine. Defendant, Ruben Boria was convicted of both conspiracy and aiding and abetting the possession with intent to distribute more than five kilograms of a controlled substance, after a four-day jury trial in the District Court. Subsequent to receiving the guilty verdict, Boria filed for a judgment of acquittal and also for a new trial; arguing that the evidence was not sufficient to sustain convictions for conspiracy and aiding and abetting, and that the Court erred by allowing certain evidence which should have been found inadmissible. After hearing arguments on the Motions, the District Court granted Boria’s Motion for a directed judgment of acquittal. The District Court’s ruling was then appealed to the Third Circuit by Federal Prosecutors.

By way of background, the drug trafficking ring in question was part of a Mexican drug cartel, involved in distributing controlled substances throughout the United States. Federal officials were alerted to the movement of cocaine when one of the players involved phoned a contact in Philadelphia, who happened to be a Drug Enforcement Agency informant. Miguel Morel contacted Jose Alvarado, the informant, seeking an available garage to unload a tractor-trailer. Alvarado was unable to find an available garage for Morel to unload the truck, but instead found a lot where the truck could be stored temporarily overnight. Once the truck arrived in Philadelphia and parked in the overnight lot, Alvarado continually monitored the truck overnight; at some point, he was also able to alert law enforcement to the suspicious activity. The following morning, Alvarado “returned” to the parking lot to take the truck driver, Marcus Diaz to breakfast.

While at breakfast, Alvarado received a phone call from Morel, advising that he was sending someone to pick-up the truck and take it to a garage for unloading. Alvarado and Diaz returned to the parking lot where they were met by Ruben Boria. Diaz and Boria entered the truck and began driving to the garage, with Alvarado following. At one point along the journey, Diaz pulled the truck over into a parking lot while he awaited confirmation that the garage was ready for the trucks arrival. Upon exiting this parking lot, the truck was immediately stopped by Philadelphia Police, who had been observing the truck based upon Alverado’s previous information. A subsequent K-9 search alerted the officers to illegal contraband and officers were able to enter the trailer via a key they found on a key-ring, which was left in the ignition upon the stop. After three hours of searching the trailer, one hundred kilograms of cocaine were found hidden within boxes of rotten fruit.

Federal Court case law has established that in order to sustain a conviction for conspiracy to possess with the intent to distribute controlled substances, there must have been a shared unity of purpose, an intent to achieve a common illegal goal, and an agreement to work towards that goal, but also specific knowledge that controlled substances were involved, rather than some other contraband or illegal activity. A long line of case decisions has established that when a co-conspirator’s activities do not demonstrate sufficient knowledge that the illegal activity involved a controlled substance, a conviction for conspiracy to distribute controlled substances can not be substantiated.

On appeal, the government argued the facts of the case, which they believe showed Boria’s knowledge that he was transporting a controlled substance. The government cited Miguel Morel’s reputation as a drug trafficker; Alvarado’s testimony established that Morel would often hire others to do his leg work while he remained far away from the controlled substance, would share information with these workers relative to their duties, and that Morel was known for these practices. The government established that Boria has fourteen telephone calls to and from Manuel Baroso in the hour prior to the police stop, a known drug supplier according to Alvarado, and that Boria’s phone continued to ring after the stop. Based upon Alvarado’s testimony that the individuals whom Boria contacted were well known for their involvement in drugs, the Third Circuit found sufficient evidence to sustain convictions for conspiracy and aiding and abetting possession with the intent to distribute a controlled substance, thereby reinstating the convictions and remanding the case for further proceedings.

Drug Crimes

Possession with the intent to distribute 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 drug trafficking. Such charges carry even greater penalties.

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.

November 12, 2009

Police Cannot Prolong Investigations for Purpose of Increasing Potential Penalties

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