Philadelphia Criminal Lawyer Blog

Philadelphia Criminal Lawyer Update: For Federal Constitutional Standards, an Illegal Stop Can Lead to a Lawful Search Incident to Arrest in Utah v. Strieff

noreply@blogger.com (Brad Shuttleworth) — Wed, 06 Jul 2016 17:48:00 +0000

The United States Supreme Court recently issued the majority opinion in Utah v. Strieff, ___ S.Ct. ___ (2016), authored by Justice Clarence Thomas. The opinion held that, even though an initial stop was illegal, the existence of a valid arrest warrant discovered during the illegal stop justified the recovery of contraband discovered during a search incident to arrest (for the warrant). The court's majority conclusion was justified under the attenuation doctrine. Read the opinion, and be sure to read the opinion of Justice Sotomayor, who upends the majority opinion.

Philadelphia Lawyers: First, always base a motion to suppress evidence, not only on the Fourth and Fourteenth Amendments to the United States Constitution, but also on Article 1, Section 8 of the Pennsylvania Constitution. Why? The Pennsylvania Constitution offers broader protections than the federal constitution, and the purpose of the exclusionary rule under the Pennsylvania Constitution is based on deterrence and privacy, whereas the exclusionary rule under the federal constitution is only based on deterrence. Second, if a prosecutor attempts to cite Strieff to justify a search incident to arrest or attenuation issue, be sure to distinguish that your motion to suppress is based on the Pennsylvania Constitution, and the reasons why.

To read the opinion, click here.

Criminal Lawyer Update: Pennsylvania Supreme Court Strikes Down Mandatory Minimum Sentence in Sex Case

noreply@blogger.com (Brad Shuttleworth) — Wed, 22 Jun 2016 18:05:00 +0000

On June 20, 2016, the Pennsylvania Supreme Court, in Pennsylvania v. Wolfe, with the opinion authored by Chief Justice Saylor, struck down the mandatory minimum sentencing provisions of 42 Pa.C.S. § 9718, which mandated for mandatory minimums for certain offenses where the victim is less than 16 years of age. Wolfe involved two convictions for Involuntary Deviate Sexual Intercourse.

To read the opinion, click here.

Brad V. Shuttleworth Again Has Been Named as a Pennsylvania Super Lawyers Rising Star

noreply@blogger.com (Brad Shuttleworth) — Mon, 20 Jun 2016 17:24:00 +0000

Brad V. Shuttleworth again has been named as a Pennsylvania Super Lawyers Rising Star. According to the Pennsylvania Super Lawyers website:

"Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations."

Mr. Shuttleworth was selected in this regard in 2008, 2010, 2012, 2013, 2014, 2015, and 2016.

Brad V. Shuttleworth

Jordan Brown Free From Juvenile Confinement

noreply@blogger.com (Brad Shuttleworth) — Fri, 17 Jun 2016 19:19:00 +0000

Remember in 2011, when I wrote a couple of posts about Jordan Brown, the juvenile charged with homicide charges in Lawrence County, Pennsylvania? Well, today, I returned to my office from court and lunch at about 1 o'clock in the afternoon, and, for some reason, Jordan Brown popped into my head. I don't know why, but it sure was a coincidence, because this article from the Pittsburgh Post-Gazette about Jordan Brown being released from juvenile confinement within the past week.

View the article from the Pittsburgh Post-Gazette here.

Criminal Lawyer Update: Probation and Parole Agents Required to Give Miranda WarningsCommonwealth

noreply@blogger.com (Brad Shuttleworth) — Fri, 17 Jul 2015 21:38:00 +0000

The Pennsylvania Supreme Court recently held that probation and parole agents/officers must give Miranda warnings to individuals before questioning them if they are in custody. The case is Commonwealth v. Cooley. Read it here.

Criminal Lawyer Update: Police Need a Warrant to Search a Personal Computer

noreply@blogger.com (Brad Shuttleworth) — Thu, 16 Jul 2015 18:43:00 +0000

On June 5, 2015, the Pennsylvania Supreme Court decided the case of Commonwealth v. Sodomsky, 2015 PA Super 133 (Pa. Super. Ct. 2015), wherein it held that police need a warrant to search a personal computer, even where the computer was not in the possession of the defendant, but at a computer store for servicing.

To read Sodomsky, click here.

Criminal Lawyer Update: No Interception When iPad Texts Revealed To Police After They're Received

noreply@blogger.com (Brad Shuttleworth) — Thu, 02 Jul 2015 11:39:00 +0000

In Commonwealth v. Diego, 2015 PA Super 143 (Pa. Super. June 23, 2015), the Pennsylvania Superior Court ruled that text messages sent by the defendant to an informant's iPad were not intercepted under the Pennsylvania Wiretapping and Electronic Surveillance Control Act.

To read Diego, click here.

Criminal Lawyer Update: Elonis v. United States Leaves More Questions Than Answers

noreply@blogger.com (Brad Shuttleworth) — Sat, 06 Jun 2015 13:50:00 +0000

This week, the United States Supreme Court decided the case of Elonis v. United States, interpreting a federal statute criminalizing threats to injure another, 18 U.S.C. §875(c). Chief Justice Roberts delivered the opinion of the court. Basically, Section 875(c) is silent on the level of intent, or scienter, the government must prove to find a defendant guilty, and the trial court only instructed the jury on negligence, and the jury convicted the defendant.

Although the Supreme Court held that a negligence standard is not enough to convict a person of Section 875(c), it does not clarify (other than Justice Alito in a concurring opinion) what level of scienter is required. Read the opinion and tell me what you think is required: recklessness, knowledge, purpose (intent)? Maybe Justice Alito sums it up in his concurrence, which provides more guidance thatn the majority opinion authored by Chief Justice Roberts.

The court also dodges the question of whether the defendant's words (he uttered on social media) were afforded any protection under notions of free speech under the First Amendment.

To read Elonis, click here.

Criminal Lawyer Update: Dog Sniff During Routine TrafficStop Held Unconstitutional

noreply@blogger.com (Brad Shuttleworth) — Sat, 06 Jun 2015 13:29:00 +0000

The following story is one I wrote, which was originally published in the April 2015 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association. The original work can be viewed by clicking here.

Sit! Stay! Dog Sniff During Routine Traffic Stop Held Unconstitutional.

Brad V. Shuttleworth, Esq. on 4/22/2015

"Well, we'll see how smart you are when the K-9 come."1 If a dog sniff prolongs a traffic stop beyond the time reasonably required to complete the mission of investigating a traffic violation, it violates the Fourth Amendment's prohibition against unreasonable searches and seizures.

On April 21, 2015, the United States Supreme Court, in a 6-3 decision, ruled in Rodriguez v. United States, 575 U.S. _ (Apr. 21, 2014), that there is a Fourth Amendment violation when, during a traffic stop justified only by a police-observed traffic violation, the police prolong the traffic stop beyond the time reasonably required to handle the matter for which the stop was made. This case involved a dog sniff conducted after the completion of a traffic stop. The majority opinion was authored by Justice Ruth Bader Ginsburg.

In Rodriguez, a K-9 police officer saw Rodriguez commit a minor traffic violation by slowly veering his vehicle onto the shoulder of a highway for one or two seconds and then jerking it back onto the road. Because of this, the officer pulled him over. There was a passenger in the vehicle. The officer approached the vehicle on the passenger side, asked Rodriguez why he had driven onto the shoulder. Rodriguez responded that he was avoiding a pothole. The officer returned to his patrol vehicle and ran a records check on Rodriguez. The officer then asked the passenger for his driver's license and began to question him about where they were coming from and where they were going. The officer then returned to his patrol vehicle, where he ran a records check on the passenger, and called for a second officer. The officer then began writing a warning ticket for Rodriguez for driving on the shoulder of the road.

The officer returned to Rodriguez's vehicle a third time to issue a warning, and within about 21 or 22 minutes after the initial stop, the officer had finished explaining the warning to Rodriguez, and had given the two back their documents, along with the written warning. The investigation for the traffic stop was concluded.

However, despite the justification for the traffic stop being out of the way, the officer did not consider Rodriguez free to leave. The officer asked for permission to walk his drug-sniffing dog around Rodriguez's vehicle. Rodriguez declined the request. The officer then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol vehicle to wait for the other officer, a deputy sheriff, to arrive. Rodriguez did so, and the deputy arrived about five minutes after the initial stop had concluded. At that time, the officer led his dog twice around the vehicle, and the dog alerted to the presence of drugs halfway through the second pass. "All told, seven or eight minutes had elapsed from the time Struble issued the written warning until the dog indicated the presence of drugs." *3 (slip op.). Then, a search recovered a large bag of methamphetamine.

After being charged federally for possessing with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§841(a)(1) and (b)(1), Rodriguez moved to suppress the drugs. He lost the suppression motion in federal district court, and the court of appeals affirmed the district court's ruling. The U.S. Supreme Court granted certiorari "to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff." *4 (slip op.).

The Court began by noting that seizures for traffic violations are akin to Terry stops, justifying a relatively brief encounter for investigation, the duration of which is determined by the "mission," i.e., "to address the traffic violation that warranted the stop . . . and attend to related safety concerns." *5 (slip op.), citing Illinois v. Caballes, 543 U.S. 405 (2005). Traffic stops may last no longer than is necessary to address the traffic violation and safety concerns, and authority for the seizure ends when tasks related to the traffic infraction are, or reasonably should have been, complete. Id. Police are required to investigate diligently. Id. CitingCaballes and Arizona v. Johnson, 555 U.S. 323 (2009), the majority recounted that the Court has concluded unrelated investigations are tolerated if they do not lengthen the roadside detention. Id. It quoted language in Caballes that cautioned "that a traffic stop 'can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a warning ticket," and language in Johnson that "[t]he seizure remains lawful only 'so long as [unrelated] inquiries do not measurably extend the duration of the stop.'" Id. (Internal citations omitted). In most cases, inquiries concerning a traffic infraction include checking the driver's license, checking warrants, and inspection proof of registration and insurance -- which all relate to the mission of investigating the justified stop for traffic violations. Id.

In contrast, the Court went on, dog sniffs are aimed at criminal wrongdoing, and are not incident to the investigation for traffic violations. *6-7 (slip op.). "On-scene investigation into other crimes ... detours from that mission." *7 (slip op.). Clarifying that the critical analysis includes substance over sequence, the majority stated, [t]he critical question . . .is not whether the dog sniff occurs before or after the officer issues a ticket . . . But whether conducting the sniff 'prolongs' - i.e., adds time to - 'the stop[.]'" *8 (slip op.).

Justices Thomas and Alito wrote dissenting opinions, which, along with the majority opinion, you can read at the following URL: www.supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf

In real life, extraneous investigations during a traffic stop, while annoying, and illegal if they prolong the time it normally takes to conduct a traffic investigation and issue a ticket, are going to continue to occur, because law enforcement relies on traffic stops as a net to ferret out crime. So, turn off your engine, place your hands on the wheel, be respectful, and have your paperwork in order in an easy-to-acquire location, so you are not prolonging your own investigation.

1. Jay Z, "99 Problems", The Black Album (2004 Roc-A-Fella Records, LLC). Interestingly, Jay Z's "99 Problems" song was released while Illinois v. Caballes, 543 U.S. 405 (2005), an important prior dog sniff case, cited and analyzed in Rodriguez, was pending before the US Supreme Court. For an in-depth legal analysis of "99 Problems", read Caleb Mason, Jay-Z's 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, ST. LOUIS L.J., Vol. 56, No. 567, 2012.

Criminal Lawyer Update: PA Superior Court Invalidates Consensual Car Search Conducted During Illegal Detention in Commonwealth v. Nguyen

noreply@blogger.com (Brad Shuttleworth) — Tue, 12 May 2015 13:53:00 +0000

Just a week after the United States Supreme Court suppressed evidence discovered as a result of an dog sniff because police unjustifiably prolonged a traffic stop in Rodriguez v. United States, 575 U.S. _ (Apr. 21, 2014) (see my April 26, 2015 blog post), the PA superior Court in Commonwealth v. Nguyen, 2015 PA Super. 98 (Apr. 27, 2015) held that a consensual car search was illegal when it was conducted after the conclusion of a traffic stop when officers re-engaged the defendant.

There's no word yet whether the Commonwealth will seek review in front of the PA Supreme Court. To read Nguyen, click here.

Philadelphia Courts Closing Early Today

noreply@blogger.com (Brad Shuttleworth) — Thu, 30 Apr 2015 11:22:00 +0000

Today, 4/30/15, according to the Philadelphia Courts Website:

The FJD was informed today that on Thursday, April 30, 2015 at 4:30pm there will be a "Philadelphia is Baltimore" rally in the vicinity of 15th and Market Street. In an abundance of caution and for the purpose of crowd control, traffic congestion and possible reassignment of law enforcement, the Administrative Governing Board has authorized the 3:30pm dismissal of all court employees. As in the past, all critical services are expected to remain operational during normal business hours.

Criminal Lawyer Update: United States Supreme Court Rules That GPS Monitoring of a Person Constitutes a Search, and it Grants Certiorari on Whether a State's GPS Monitoring Program for Sex Offenders is a Reasonable Search Under the Fourth Amendment to the United States Constitution

noreply@blogger.com (Brad Shuttleworth) — Wed, 15 Apr 2015 20:52:00 +0000

In Grady v. North Carolina, 575 U.S. ____ (2015) (March 30, 2015), the United States Supreme Court has granted certiorari on whether the non-consensual GPS monitoring of a sex offender constitutes an unreasonable search under the Fourth Amendment to the United States Constitution. In granting certiorari, it held that the monitoring program is a search, but the question of whether it is a reasonable search was remanded back to the Supreme Court of North Carolina. I'll keep monitoring this case to keep you updated.

To read the per curiam grant of cert., click here.

Educate Yourself Despite the Thinning of the Herd of Philadelphia Judicial Candidates

noreply@blogger.com (Brad Shuttleworth) — Mon, 30 Mar 2015 13:43:00 +0000

Just because about a third of the approximately 60 judicial candidates for the Philadelphia primary elections have dropped out of the race, doesn't mean you shouldn't get educated on the remaining candidates. The public's knowledge of individual Philadelphia judicial candidates may not be as good as its knowledge of more high-profile elections this year, but there are ways that you can educate yourself.

Because of the Philadelphia mayoral race, people will show up at the polls, and many may just vote down party lines for the top ballot positions. Don't want to be part of those masses - get educated and vote wisely. New judges are usually first assigned to criminal court or family court, where lives are at stake. The citizens of Philadelphia deserve the best on the bench.

There are a few resources for you to educate yourself about judicial candidates for the upcoming judicial primary elections on May 19, 2015. Here's a list of a few essential websites you can use to help make your decisions on judicial elections at the polls this year:

See you at the polls!

Why Keep a Criminal Defense Lawyer on Speed Dial?

noreply@blogger.com (Brad Shuttleworth) — Sun, 15 Mar 2015 00:02:00 +0000

CNN correspondent Kelly Wallace interviews author Lisa Green on why parents of teens need to keep a criminal defense lawyer on speed dial. She makes some very valid points for parents of teens, which can apply to anyone, not just parents of teens. Everyone should have a criminal defense lawyer on speed dial, because you never know.

View the article and video at http://www.cnn.com/2015/03/11/living/feat-parents-teens-legal-advice-on-your-case/index.html

This interview gives very practical advice. For example, law enforcement often relies on people not knowing their rights, not knowing how to enforce their rights, and not having a criminal lawyer early in any investigation.

Don't be fooled by law enforcement saying they "just want to talk."

Philadelphia Courts Closed Today

noreply@blogger.com (Brad Shuttleworth) — Thu, 05 Mar 2015 11:34:00 +0000

Due to the inclement weather all Courts will be closed Thursday, Mar. 5, 2015 All critical Court services are expected to remain operational.

Criminal Lawyer Update: In Commonwealth v. Berger, the Pennsylvania Superior Court ruled this summer that a trial court can order forensic interviewer of child to produce records.

noreply@blogger.com (Brad Shuttleworth) — Sat, 06 Sep 2014 15:36:00 +0000

To read the case of Commonwealth v. Berger, ___ A.3d ___, 2014 WL 3398354 (Pa. Super. July 14, 2014), click here.

Criminal Lawyer Update: Pennsylvania Superior Court Rules Most Mandatory Minimum Sentencing Statutes Unconstitutional in Commonwealth v. Newman, 2014 Pa. Super. 178 (Aug. 20, 2014)

noreply@blogger.com (Brad Shuttleworth) — Thu, 21 Aug 2014 12:43:00 +0000

In Commonwealth v. Newman, the Pennsylvania Superior Court, ruling unanimously, en banc, holds most mandatory minimums in Pennsylvania unconstitutional as a result of Alleyene v. United States. Defendants in criminal court will no longer have to endure the overwhelming leverage of the Commonwealth's threat of the imposition of a mandatory-minimum sentence.

It's too early to tell if the Commonwealth will seek allocatur from the Pennsylvania Supreme Court.

Enjoy...

Read the opinion, authored by Ford Elliot, P.J.E. here.

Read the concurrence, authored by Mundy, J. here.

Search of Digital Information on a Cell Phone Cannot be Justified Under the Search Incident to Arrest Doctrine

noreply@blogger.com (Brad Shuttleworth) — Fri, 25 Jul 2014 16:46:00 +0000

The following story is one I wrote, and which was originally published in the July 2014 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association. The original work can be viewed at https://uponfurtherreview.philadelphiabar.org/page/Article?articleID=41281ca5-2ddd-4673-8ba6-5cf57db0bc98

Search of Digital Information on a Cell Phone Cannot be Justified Under the Search Incident to Arrest Doctrine

This past spring, we wrote about two companion cases argued before the Supreme Court of the United States that could settle the question of whether the search of the digital information contained in a cell phone can be justified under the search incident to arrest doctrine. Now, on June 25, 2014, the Supreme Court, in a settling, unanimous decision ruled that police may not, without a search warrant, search digital information on a cell phone seized from an individual who has been arrested. Chief Justice John Roberts authored the opinion of the Court.

The companion cases are Riley v. California and United States v. Wurie. The salient facts of each of these cases were summarized in the March 2014 edition of Upon Further Review, which can be accessed by clicking [here].

In the Supreme Court’s Riley and Wurie opinion, the analysis began by citing the Fourth Amendment to the United States Constitution, noting how the labeling of the search incident to arrest doctrine as an exception to the warrant requirement of the Fourth Amendment is a misnomer, because warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant." The opinion then laid out a discussion of the handful of Supreme Court precedent in the search incident to arrest arena, beginning with the seminal case limiting the scope of a search incident to arrest, Chimel v. California, 395 U.S. 752 (1969) (disallowing the search of an arrestee’s home even where he is arrested therein), and on through United States v. Robinson, 414 U.S. 218 (1973) (permitting the search of a container, a cigarette pack, found on the arrestee’s person at the time of arrest), United States v. Chadwick, 433 U.S. 1 (1977) (disallowing the search of a 200-pound, locked footlocker with an arrestee at the time of arrest), and Arizona v. Gant, 556 U.S. 332 (2009) (disallowing the search of a vehicle where the arrestee is secure and outside the reaching distance of the passenger compartment at the time of the search).

Before applying a balancing test for warrantless searches, the Court began by stating how modern cell phones "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." In applying the balancing test for warrantless searches, which assesses the degree to which a warrantless search intrudes upon an individual’s privacy versus the degree to which the warrantless search is needed for the promotion of legitimate governmental interests, the opinion discussed a realistic dichotomy between the search of digital information contained in a cell phone and the search of physical objects like the case in Robinson. The Court then discussed the two rationales weighing in favor of permitting a search incident to arrest established in Chimel, the need to uncover and disarm weapons from an arrestee and to prevent the destruction or loss of evidence. As for the need to uncover and disarm weapons from an arrestee, the court held that law enforcement officers are still free to search the physical aspects of a cell phone to make sure there are no physical threats, like, for example, a concealed razorblade secreted between the phone and its case. However, the digital information contained with a cell phone poses no physical danger to a police officer. Then, as for the interest of preventing the destruction or loss of evidence, the Court held that there is not much of a threat of this, and that there are reasonable, cost-effective options available to law enforcement which can ensure that data will not be lost if they thereafter choose to apply for a search warrant.

The opinion further outlined the significant privacy interests involved with cell phones, and the way people use them in today’s age. It also discussed how data that is accessible on a cell phone is stored, and the facts that data accessible on a cell phone may not be stored on the phone at all with the burgeoning prevalence of cloud computing. In arguing a point in favor of permitting searches, the United States proposed a solution where law enforcement could either disconnect a phone from the network before searching it or develop protocols to address concerns raised by cloud computing. The Court found that the development of protocols to address cloud-computing concerns was a good idea, "but the Founders did not fight a revolution to gain the right to government agency protocols."

After the United States and California proposed several other situations where they believed exceptions could be made, the Court remained steadfast with a bright line rule against the warrantless search of a cell phone absent exigent circumstances, concluding: "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant."

Philadelphia Homicide Detectives to Begin Taping Interrogations

noreply@blogger.com (Brad Shuttleworth) — Sat, 29 Mar 2014 01:36:00 +0000

As reported on Philly.com today, the Philadelphia Police Department will begin taping interrogations in homicide cases. Do you think this will help the truth-determining process in Philadelphia courts? To read the article, click here.

SCOTUS to Hear Companion Cases Involving Cell Phone Searches Incident to Arrest - Criminal Lawyers in Philadelphia Courts Should Keep Watch

noreply@blogger.com (Brad Shuttleworth) — Sat, 22 Mar 2014 17:07:00 +0000

The following story is one I wrote, and which was originally published in the March 2014 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association. The original work can be viewed at https://uponfurtherreview.philadelphiabar.org/page/Article?articleID=62d4670c-0bd7-40e7-a7a7-d581fb2cfe37

SCOTUS to Hear Companion Cases Involving Cell Phone Searches Incident to Arrest

Brad V. Shuttleworth, Esq. on 03/18/2014

One of the first things we learn in law school is how slowly the law can trail industry and technology. Sometimes, the length of that trail can be astonishing. Take the case of a smartphone for example. Apple’s revolutionary smartphone, the iPhone, came out about eight years ago. Now it stands six generations deep. Even years before the iPhone’s premiere, Blackberry led the smartphone market, with devices capable of shooting photos and video, e-mailing, messaging, browsing the web, playing music and storing private data. Throughout this time, law enforcement officers across the country have been searching smartphones incident to arrest. In court, there has been little guidance on a law enforcement officer’s ability to dive deep into the mounds of data contained in a smartphone, once it is lawfully seized pursuant to an arrest. Finally, after years of waiting, the United States Supreme Court will hear arguments on April 29th in two cases on the ability of law enforcement officers to search the data contained within a cell phone upon a seizure incident to arrest. The two cases have markedly different facts, and they come from two jurisdictions.

The first case is Riley v. California (13-312). Riley was ultimately decided in the California Court of Appeals. The California Supreme Court declined review. The case was then taken to the United States Supreme Court by way of a Petition for Allowance of Appeal, which was granted.

In Riley, the defendant was convicted by jury trial of shooting at an occupied vehicle, attempted murder and assault with a semi-automatic firearm. About 20 days after a shooting occurred, police stopped the defendant in a car, and they learned he had been driving without a license. Because of him driving without a license, police were able to impound his car. While conducting an inventory search, they discovered illegally-possessed firearms. Upon arresting Riley for the guns, they seized his cell phone, which provided photographic and video evidence of gang affiliation, and evidence that the phone was used near the place of the shooting 20 days earlier, and it was used about 30 minutes near the location where police found Riley’s other car after the shooting.

The California Court of Appeals found that the search of the cell phone was permissible as a valid search incident to arrest, as it was “immediately associated” with his “person” when he was arrested. Because the cell phone was on Riley’s person when he was arrested, the police were justified in performing a full search incident to arrest, which are generally broad in scope for items found on a defendant’s person.

The second case is United States v. Wurie (13-212). Wurie was granted allowance of appeal out of the United State Court of Appeals for the First Circuit. The incident giving rise to the arrest in Wurie occurred in South Boston. Sergeant Detective Paul Murphy, while conducting surveillance, observed what he believed to be a drug transaction. After Sergeant Murphy stopped the buyer, the buyer admitted that he bought drugs from Wurie. Sergeant Murphy notified another police officer, who arrested Wurie after he parked his car. Once Wurie was transported to the police station, two cell phones, a set of keys, and a rather large amount of cash were taken from him. Before Wurie was booked, two officers noticed that one of his cell phones, a gray Verizon LG phone, was repeatedly receiving calls from a number identified as “my house” on the external caller ID screen on the face of the phone. This was visible in plain view. After about five minutes passed, officers opened the phone to look at Wurie’s call log. They then saw a photograph of a young woman holding a baby, which was set up as the phone’s “wallpaper”, or background image. The officers continued on by pressing another button on the phone, allowing them access to the phone’s call log, which showed the incoming calls from “my house”. They then pressed yet another button to determine the phone number associated with the “my house” caller ID reference. The officers then traced the phone number to an address on Silver Street in South Boston, not far from where Wurie parked his car just before he was arrested.

Officers proceeded to the address, armed with Wurie’s keys. One of the mailboxes at the address listed the names of Wurie and Cristal. Officers looked through the first-floor apartment window, and saw a black woman who looked like the woman whose picture appeared on the phone wallpaper. They then entered the apartment, without a warrant, to “freeze” it while they obtained a search warrant. They ultimately seized from the apartment, among other things, 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was charged with possessing with intent to distribute cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress evidence, which the trial court denied.

The First Circuit reversed the denial of the suppression motion. After thoroughly discussing United States Supreme Court precedent, and opinions of other jurisdictions, it held that “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception. . . .” (Emphasis in original). It noted that the government failed to demonstrate that a cell phone search under such circumstances is ever necessary to promote officer safety or prevent the destruction of evidence.

There have been no cases in Pennsylvania discussing the search of the data contained within a cell phone solely because of a search incident to arrest. It will be helpful if the United States Supreme Court were to rule on this case by the end of this term, because Pennsylvania is not the only jurisdiction where this issue has not yet been settled. Once the Supreme Court rules, in whichever way it rules, we will know at least the baseline protections afforded to individuals for searches in these circumstances under the Federal Constitution.

Philadelphia Criminal Lawyer Update: PA Superior Court Rules Trial Court's Refusal to Strike Juror Who Was Former Member of Law Enforcement Permissible

noreply@blogger.com (Brad Shuttleworth) — Mon, 24 Feb 2014 00:06:00 +0000

The case is Commonwealth v. Hale, ___ A.3d ___, 2014 Pa. Super. 19 (Feb. 6, 2014). The court began by stating that 'challenges for cause should be granted: (1) when the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims, or witnesses, that the court will presume the likelihood of prejudice; and (2) when the potential juror's likelihood of prejudice is exhibited by his conduct and answers to questions at [v]oir dire.' In addition, when it comes to a law enforcement official, that official must have some real relationship to the case, such as being on the same police force as testifying officers, in order for a trial court to be deemed to have abused its discretion in refusing to strike a law enforcement official. In Hale, the prospective juror was a school police officer, and retired as a detective with the Philadelphia District Attorney's office, so there was no real relationship with the case. In addition, the defense did not allege that police officer credibility would be at issue at trial. Thus, the trial court's refusal to strike this prospective juror for cause was not an abuse of discretion. You can read the case here.

Court in Philadelphia Closed Again Today

noreply@blogger.com (Brad Shuttleworth) — Fri, 14 Feb 2014 13:58:00 +0000

Philadelphia courts are closed again today (2/14/14) because of the inclement weather, not because of Valentine's Day. Courts will reopen on Tuesday, February 18, 2014. Be safe everyone.

Clients Seeking a Criminal Lawyer Want Effective Communication

noreply@blogger.com (Brad Shuttleworth) — Sat, 01 Feb 2014 17:34:00 +0000

Being charged with a crime can be one of the scariest experiences of anyone's life. I've been a criminal lawyer practicing in Philadelphia for a long time. From this experience, I've learned a very important lesson: communicating effectively with clients is the key to their satisfaction. People who are charged with a crime need a criminal lawyer who effectively communicates with them. After all, they're going through a lot of emotional turmoil.

Effective communication allows the client to effectively participate in the lawyer's representation and obviates the need for the client to constantly reach out to the lawyer for reasonable requests for information. If a lawyer is constantly bogged down by phone calls from current clients, that lawyer should examine his or her practice to see if the clients are calling because they do not have the information they need about their cases. Here are some tips for criminal lawyers to make their clients happy:

1. Keep clients' phone numbers handy and call them whenever something happens in their case. Clients appreciate this, and it is a proactive approach to lawyer-client communications. If you make a habit of this, you'll see that the total length of phone conversations drops considerably because you've kept the client informed.

2. Return all phone calls within 24 hours. When clients have a question, they want a quick response. And, they deserve a quick response. No client wants to think you're too busy working on other clients' cases that you can't return their call.

3. Write letters to clients. Writing a simple letter to a client can take less then five minutes, and the client will feel like they're getting something for the fee they've paid.

4. Copy clients on written communication with opposing counsel or the court. Make it simple - you don't have to write a cover letter for the copied letter you're sending. Copying a client is an easy way for you to keep them informed.

Make these practices a habit, and you'll see that it actually saves you time, makes clients happy, and will be better for your practice in the long run.

Communicating information to a client about his or her matter is not just something that lawyers should do. It's also required by law. For example, the Pennsylvania Rules of Professional Conduct, Rule 1.4, sets forth the minimal standard for a lawyer's communication with a client. It reads:

Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) A lawyer in private practice shall inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing at any time the lawyer's professional liability insurance drops below either of those amounts or the lawyer's professional liability insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client.

Criminal lawyers, try these simple tricks, follow the law, and feel free to let me know how they work for you in your practice!

Philadelphia Criminal Lawyer Update: PA Supreme Court Reigns in Application of Mandatory Minimum Sentences for Drug Dealing with a Firearm

noreply@blogger.com (Brad Shuttleworth) — Sun, 12 Jan 2014 16:00:00 +0000

The case is Commonwealth v. Hanson, ___ A.3d ___ (2013), 2013 WL 6831854 (Pa. Supreme Ct., Dec. 27, 2013). The opinion is written by Justice Saylor. And, the application of a gun plus drug dealing mandatory minimum is overruled, because a defendant must be in knowing, physical possession or control, which is constructive control, an analogue to constructive possession, and the firearm must be in close proximity to the drugs in question.

To read Hanson, click here.

Pennsylvania Supreme Court Strikes Down Act 152 of 2004 as Violative of the Single-Subject Rule of Art. III, Sec. 3 of the Pennsylvania Constitution

noreply@blogger.com (Brad Shuttleworth) — Thu, 02 Jan 2014 18:28:00 +0000

On December 16, 2013, the Pennsylvania Supreme Court struck down Act 152 of 2004 ("Act 152"), in its entirety, as violating the single-subject rule of Article III, Section 3 of the Pennsylvania Constitution. Act 152 made various changes to the Pennsylvania Judicial Code, including portions which amended the version of Megan's Law in effect at that time. The Supremes stayed the decision for 90 days "in order to provide a reasonable amount of time for the General Assembly to consider appropriate remedial measures, or to allow for a smooth transition period."

One of the criminal statutes stricken as part of this decision is 18 Pa.C.S. § 4915 (Failure to Comply with Registration of Sexual Offenders Requirements) (expired December 20, 2012), now replaced by the analog SORNA version at Section 4915.1 (effective December 20, 2012). If you or a loved one has been convicted of Section 4915, there is a 60 day window to file a petition under the Post-Conviction Relief Act to attempt to have your conviction reversed. Contact a criminal lawyer, like me, as soon as possible.

To read the majority opinion in Commonwealth v. Neiman, ___ A.3d ___ (Pa. Dec. 16, 2013), 2013 WL 6598735, click here.