Attorney Goldstein Wins Motion to Suppress Firearm

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently won a motion to suppress a firearm in the case of Commonwealth v. J.C. In J.C., the client was charged with carrying a firearm on the streets of Philadelphia (VUFA § 6108), possession of a concealed firearm without a license (VUFA § 6106), possession of a controlled substance (K&I), and possession of a firearm by a prohibited person (VUFA § 6105). Prosecutors claimed that J.C. had a firearm in the glovebox of his car and marijuana in a bag sitting on the back seat of the vehicle.

Attorney Goldstein filed a motion to suppress the physical evidence in the Philadelphia Court of Common Pleas, arguing that the police improperly searched J.G.’s car without first obtaining a search warrant. Although they later obtained a search warrant before actually removing the gun from the vehicle, the police had already seen the gun due to the initial search before they obtained the warrant.

At a hearing on the motion, the Commonwealth called one of the arresting officers to testify as to the circumstances of the stop and search. The officer testified that they attempted to pull J.C. over for window tint. He initially pulled over right away, but then he started driving again for about half of a block. The police then pulled behind him again and waited for backup. As they were sitting and waiting for backup, they observed J.C. moving around the car in a furtive manner as if he were reaching for something, attempting to conceal something, or about to take off. They also believed that he was going to flee based on the way he was looking around.

Accordingly, once backup arrived, the police surrounded the car. J.C. repeatedly asked why they had stopped him and why they were trying to search the car. He provided them with his driver’s license, and he insisted that he had the registration and insurance paperwork on his phone. The police began to pull him out of the car, and he did not immediately go with them, so they then tased him. Once they tased him, they put him in handcuffs, arrested him, and took him to the hospital for medical treatment. After he was out of the car and had been tased, the officer looked in the glove box and saw a gun. The police then held the vehicle until detectives arrived and obtained a search warrant. At that point, they recovered the gun and the marijuana. J.C. had a criminal record which prohibited him from carrying a firearm, and he also did not have a license to carry.

Attorney Goldstein moved to suppress the evidence, arguing that the initial warrantless search of the vehicle was unconstitutional under the Pennsylvania Constitution and tainted the search warrant which the police obtained later. Attorney Goldstein also argued that the police did not have exigent circumstances for the search that would justify failing to get the warrant first.

Through cross-examination and body camera footage, Attorney Goldstein established that the police had not seen J.C. do anything other than drive a car that may have had window tint, he pulled over on command, he moved the car only about half a block before pulling over again, he told them that he had moved not to flee but because he was blocking traffic, and that they could not see in the car to see if he was actually doing anything while they were waiting for backup. Additionally, J.C. did not attempt to flee, he did not drive away, the police did not see any contraband in the vehicle, and he gave them his driver’s license. Accordingly, there was no actual reason to believe he was armed and dangerous. Further, once J.C. was out of the car and had been tased and arrested, the police were obviously not going to let him get back in the car. Instead, they had to take him to the hospital. Accordingly, under the recent case of Commonwealth v. Camacho, any exigent circumstances which might have justified a “frisk” of the vehicle and checking the glove box for a weapon had dissipated.

In general, the police must obtain a search warrant prior to searching a car. There are some exceptions, however. For example, the police may conduct a “frisk” of the passenger compartment of a vehicle for weapons when they have conducted a legal stop and they have reasonable suspicion to believe that the suspect is engaged in criminal activity and armed and dangerous. The frisk cannot be a search for evidence; instead, it is a search for weapons for officer safety purposes during the stop. Nervousness alone does not justify the frisk of a car, but nervousness along with furtive movements or other strange behavior may sometimes justify a frisk.

In this case, however, any need to conduct the frisk before obtaining a warrant ended when J.C. was removed from the car, tased, handcuffed, and arrested. At that point, even if he had initially posed some sort of threat to the officers’ safety, the threat had ended, and there was nothing preventing the officers from simply waiting until detectives could obtain a warrant. The trial judge agreed and granted the motion to suppress. The Commonwealth then withdrew the charges.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.  

Can I buy a gun if I have a juvenile record in Pennsylvania?

Most people do not realize it, but there are many juvenile adjudications which make it a crime for an adult to possess or attempt to purchase a gun. Pennsylvania law makes it a third degree felony to knowingly and intentionally make a a false statement or omission in connection with the purchase of a firearm. Most gun purchasers will undergo a state and federal background check in connection with the purchase of a gun, and the application form is not always easy to understand. This makes ignorance of the disclosure obligations a risky proposition. If you are considering purchasing a firearm and have any prior arrests as an adult or juvenile, click here to learn more about Pennsylvania's Making a False Statement in Connection with the Purchase of a Firearm statute and the types of arrests and other issues which need to be included when filling out the Pennsylvania State Police and federal background check forms. Additionally, recent developments in the law may change the analysis in terms of what old convictions or adjudications may properly prevent you from being able to buy a gun in Pennsylvania.

Third Circuit Finds Laws Prohibiting 18 – 20 Year Olds From Carrying Guns Probably Unconstitutional

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Lara v. Commissioner Pennsylvania State Police, holding that Pennsylvania’s firearm laws, which prohibit 18 – 20-year-olds from carrying firearms, are probably unconstitutional. Federal courts in Pennsylvania and throughout the country have recently found many firearms regulations unconstitutional, and this latest case may have the effect of making Pennsylvania’s VUFA § 6106 and § 6108 statutes unconstitutional when applied to someone who is 18, 19, or 20 because Pennsylvania law prohibits someone who is under 21 from obtaining a license to carry a firearm and Philadelphia bars all public carrying of firearms without a license.

Under 18 Pa.C.S. § 6106(a), 6109(b), and §§ 6101 – 6128, an individual may not carry a concealed firearm without a license, and an individual must also be at least 21 years old to apply for a license. This is true even during a state of emergency. Ordinarily, Pennsylvania citizens may open-carry without a license outside of Philadelphia, but when the state has declared an emergency, an individual may not open carry without a license unless they are actively engaged in a “defense” or one of the fifteen other exceptions in § 6106(b) applies. There are exceptions for transporting a gun home from purchasing it or traveling to and from a shooting range.

The plaintiffs filed suit in federal court against the Commissioner of the Pennsylvania State Police in October 2020 seeking an injunction prohibiting the Commissioner from arresting them for carrying firearms. At that point, Pennsylvania had been in a state of emergency for three years due to COVID-19, the opioid addiction crisis, and Hurricane Ida. Accordingly, the plaintiffs, who were under 21, could not carry firearms outside of their homes openly due to the state of emergency or in a concealed manner because someone under 21 cannot obtain a license to carry. The district court granted the Commonwealth’s motion to dismiss the case. The plaintiffs appealed to the Third Circuit Court of Appeals, and the Third Circuit ruled that the statutes are unconstitutional when applied to 18-to-20-year-old citizens.

Where do these gun challenges come from?

The recent successful challenges to gun regulations come from two United States Supreme Court cases – District of Columbia v. Heller, and Bruen v. New York State Rifle & Pistol Association, Inc.

In Heller, the Supreme Court recognized that an individual has a Second Amendment right to possess a handgun in the home for self-defense regardless of whether they serve in a militia. Any law that banned all firearm possession in the home would therefore be unconstitutional. Specifically, the Court found a DC law which required firearms in the home to be rendered and kept inoperable at all times to be unconstitutional.

Then, in Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect the right to carry a handgun outside the home. Bruen in particular has supported these recent challenges to gun regulations.

The US Supreme Court adopted a two part test for evaluating the legality of firearms regulations.

First, a court determines whether the Second Amendment’s plain text covers an individual’s conduct. If it does, then the Constitution presumptively protects the conduct.

Second, a court determines whether the regulation in question is consistent with the Nation’s historical tradition of firearm regulation. If it is, then the presumption applied as part of the first test is overcome, and the regulation is permissible. If it is not, then the regulation is unconstitutional. In order to prove that a regulation satisfies the second part of the test, the government bears the burden of identifying a “founding-era” historical analogue to the modern firearm regulation. In other words, the government must find similar laws from around 1791, or the regulation is unconstitutional. The laws need not be identical, but they must be very similar.

Here, the Third Circuit ruled in favor of the plaintiffs.

First, it concluded that the Second Amendment plainly applies to the action of carrying a firearm outside of the home and that adults under 21 are among the people protected by the Second Amendment.

Second, it concluded that the government could not point to a historical regulation that is analogous to the laws in question. Although there were similar laws on the books when the Fourteenth Amendment was ratified in 1868, the Court found that the government had to find similar laws from 1791 when the Second Amendment was ratified. In the court’s view, the government could not satisfy this burden, so the statutes are unconstitutional. The only law the government could find was a 1721 law which prohibited “carrying any gun or hunting on the improved or inclosed land of any planation other than his own.” This law had nothing to do with age, so the court found it to be irrelevant to this case. Meanwhile, numerous laws from that time period showed that young adults were actually permitted to or even required to arm themselves and serve in the miliia upon turning 18. Therefore, the Court granted the plaintiffs’ request for an injunction prohibiting the Commissioner from arresting law-abiding 18-to-20 year olds who openly carry firearms during a state of emergency declared by the Commonwealth.

The final impact of the Court’s holding is still open to debate. The Court did not find the statutes to be entirely unconstitutional. Instead, it simply granted an injunction directing the State Police not to arrest 18-to-20-year-olds for openly carrying guns during a state of emergency. The injunction was not technically issued against the Philadelphia Police Commissioner, but he would likely be sued should he ignore it. It also did not address the unique statutes in Philadelphia. This is important because Philadelphia does not allow the open carrying of a firearm without a license to carry. Similarly, for the rest of the state, the statute is arguably applicable only to carrying a firearm during a state of emergency because the statutes only completely prohibit open carry without a license during such a state of emergency. If the state of emergency provision were eliminated, then the laws may be constitutional, and it is not clear whether 18-to-20-year-olds have the right to obtain a license to carry.

It does seem likely, however, that the federal courts would find Pennsylvania’s statutes unconstitutional in Philadelphia because the laws which apply to Philadelphia make it permanently illegal for an 18-to-20-year-old to carry a firearm either openly or in a concealed fashion. Philadelphia never allows open carry without a license, and someone under 21 cannot get a license, so like an 18 year old in the rest of the state during a state of emergency, an 18 year old in Philadelphia can never carry a firearm outside of the home. Accordingly, if you are 18-to-20 years old and charged with carrying a firearm without a license in Philadelphia, you may have a viable motion to dismiss the charges as unconstitutional.

It is important to remember that even though you may have a viable motion to dismiss and the laws may be unconstitutional, the laws are still on the books. The Philadelphia Police are still enforcing them, and the state courts have largely rejected these types of constitutional challenges. Further, the Third Circuit could revisit this opinion en banc, or the United States Supreme Court could grant review. The Supreme Court has accepted appeals in post-Bruen cases challenging gun regulations, and it is very possible that the Supreme Court could decide that many of these regulations are still constitutional and overrule the lower courts. Therefore, it is generally better not to carry a firearm illegally and potentially be the test case in case this opinion does not hold up or the state courts ignore it. Nonetheless, if the Supreme Court approves of these rulings or does not address them, it will become increasingly difficult for the state courts to continue to ignore them. Ultimately, if you have been charged with carrying a firearm without a license or on the streets of Philadelphia and you are under 21, you should speak with one of our experienced gun lawyers today.

Read the Third Circuit’s Opinion

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.  

PA Superior Court: Back Seat Passenger Not Automatically in Possession of Drugs and Guns in the Front of Car

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Parrish, reversing the defendant’s conviction for Possession with the Intent to Deliver (“PWID”), Conspiracy, Possession of a Controlled Substance, Paraphernalia, and gun charges such as Violation of the Uniform Firearms Act Section 6106. In Parrish, the Superior Court found that the evidence was insufficient to convict Parrish of the gun and drug charges because Parrish was merely the back seat passenger in a car which had guns and drugs in the front of the car.  

The Facts of Commonwealth v. Parrish

Parrish involved a motor vehicle stop. Police pulled a car over in Luzerne County for having illegally tinted windows. The vehicle pulled over on command, but as police approached the car, they noticed that it was rocking back and forth as if people were moving around inside of it. They could not see what caused the rocking because of the tinted windows. When the police got up to the car, the driver of the car rolled down the window. The officers immediately smelled marijuana and saw a plastic bag containing marijuana in plain view. They also saw the driver straddling the center console between the two front seats and the grip of a silver handgun protruding from under the front passenger seat. Obviously, that is a strange place for the driver of the car to sit. They saw the defendant, Parrish, seated behind the driver’s seat with his hands on the headrest of the driver’s seat.

Because they saw drugs and a gun in plain view, the officers immediately arrested the driver and Parrish. They searched the entire car. They found a black bag on the passenger side in the front of the car. That bag contained a loaded gun, 250 packets of heroin, 12 packets of methamphetamine, a baggie of loose heroin, two scales, and other drug paraphernalia and ammunition. They found marijuana on the passenger-side door and a .40 caliber handgun protruding from underneath the front passenger-side seat. The glove compartment contained an extra magazine of bullets, and in the trunk, they found a bulletproof vest. They found $1,335 in cash on the defendant and $2,168 on the driver. Parrish cooperated with the police during his arrest. He gave his real name, and he did not attempt to run.

Gun and Drug Charges Based on Constructive Possession

Police charged Parrish with various drug and gun charges, as well as Receiving Stolen Property. Before trial, the court separated the felon in possession of a firearm charge from the remaining charges so that the jury would not be prejudiced by knowing that the defendant had a prior criminal record. The defendant then proceeded by way of jury trial, and the jury convicted him of all charges.

At trial, police testified to the above facts. They also confirmed that Parrish was not the registered owner of the car, and he did not have a key to the glove compartment or trunk. Police also believed that based on the positions of the men in the car, the defendant was probably not the driver. They did not test any of the items for fingerprints or DNA. The Commonwealth also presented an expert witness to testify that based on the totality of the circumstances, the drugs in the bag were likely for sale and possessed with the intent to deliver.

In this case, the defense presented evidence, as well. The defendant called a friend to testify that he had been at a party at the friend’s house all afternoon on the day of the arrest. Parrish stayed at the party until approximately 2 am. The friend then asked the driver of the car to drive the defendant home. When the defendant left the party, he was not carrying a satchel or any kind of bag. The friend also saw defendant lay down in the back seat when the defendant got into the car. The jury convicted the defendant of all charges, and the trial court sentenced him to 88 to 176 months of incarceration in state prison.

The Appeal of the Criminal Case

The defendant filed post-sentence motions for reconsideration of the sentence, for a new trial, and for discovery which the prosecution had apparently not provided prior to trial. The trial court denied those motions, and the defendant appealed to the Superior Court. On appeal, the defendant raised four issues:

1. whether the evidence was sufficient to sustain the convictions,

2. whether the trial court should have awarded a new trial based on the weight of the evidence,

3. whether the court abused its discretion in allowing one of the police officers to testify as an expert witness that the fact that there were two guns in the car meant that one probably belonged to the defendant, and

4. that the sentence was illegal because the court ordered a restitution payment in a case with no victim.

The Superior Court’s Decision

The Superior Court only addressed the first issue because it resolved the case in the defendant's favor. The court noted that sufficiency of the evidence claims involve viewing all of the evidence admitted at trial in the light most favorable to the verdict winner and determining whether there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Additionally, a conviction may be sustained entirely based on circumstantial evidence, but a jury is not permitted to simply guess. 

Here, the jury convicted Parrish of both gun charges and drug charges. Both types of charges required the prosecution to prove beyond a reasonable doubt that Parrish possessed the illegal items. Because the items were not physically on him, the prosecution’s case depended on a constructive possession theory. Possession can be found by proving actual possession, constructive possession, or joint constructive possession. Constructive possession exists when the defendant has the power to control the contraband and the intent to exercise that control. It may be proven by circumstantial evidence. At the same time, the defendant’s mere presence at the place where contraband is found or secreted is insufficient, standing alone, to prove that he exercised dominion or control over the items. Location and proximity to contraband alone are thus not conclusive of guilt. Instead, the Commonwealth must be able to prove at least that a defendant knew of the existence and location of the contraband.

Here, the court reversed the conviction because the defendant was sitting in the back of the car and all of the guns and drugs were in the front. Further, the evidence established that Parrish was not carrying any type of bag when he entered the car, he did not have the keys to the car, and he was not the owner or operator of it. There was no evidence that he had ever been seated in either of the car’s front seats. Neither of the recovered firearms was registered to him, and the police had failed to test any of the items for fingerprints or DNA. The Commonwealth also failed to present any evidence whatsoever that the defendant knew of the contents of the black bag in the front because the bag was opaque. The court also rejected the idea that the defendant could have moved from the front of the vehicle to the back due to his height and weight and the size of the vehicle. The court also ignored the testimony of the Commonwealth’s expert witness, which was likely improper, and it ultimately reversed the defendant’s conviction.

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta

Constructive possession is an issue that often comes up in gun cases and drug cases. In many cases involving traffic stops, the contraband in the vehicle is not actually physically on the defendant. In these types of cases, there are often defenses based on constructive possession because the prosecution may not be able to prove who in the car, if anyone, possessed the prohibited items. Even where the drugs or guns are in the actual possession of the defendant, there may be constitutional defenses to the search and seizure of the vehicle and its occupants. If you are facing criminal charges or under investigation for contraband recovered during a car stop, we can help. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding Philadelphia criminal defense lawyer today.