Philadelphia Criminal Defense Lawyer Blog

PA Superior Court Rejects Random Searches of Home as Condition of Probation

Fri, 01 Apr 2011 16:17:02 -0500

In the recently decided case of Commonwealth of Pennsylvania v. Alexander, No. 2555 EDA 2008, 2011 WL 941191, 2011 PA Super 54 (March 18, 2011), the PA Superior Court considered whether a condition of the defendant’s probation which subjected him to random searches of his residence violated his rights under both the federal and Pennsylvania Constitutions. The defendant had entered an open guilty plea to violations of the Uniform Firearms Act, and was sentenced to 1-2 years of imprisonment, to be followed by three years of reporting probation. The judge also imposed a condition on his probation and/or parole that would subject him to random searches of his residence by agents of the Gun Violence Task Force.

On appeal, the defendant challenged the validity of the search condition, arguing that it violated his right to be free from unreasonable searches and seizures absent a warrant based upon probable cause under both the Fourth Amendment to the U.S. Constitution and Article I, § 8 of the Pennsylvania Constitution. The defendant argued the minimum level of reasonable suspicion required to search the home of a defendant on parole should similarly apply in order to search the home of a defendant on probation. The Superior Court agreed, vacating the portion of the defendant’s sentence permitting such searches of his residence while on probation.

Ninth Circuit: Deleted Computer File Not Enough For Child Porn Conviction

Thu, 31 Mar 2011 09:05:24 -0500

In the recently decided case, U.S. v. Flyer, No. 08-10580 (2-8-11), the Ninth Circuit Court of Appeals determined that deletion of an image alone is insufficient evidence to support a conviction for knowing possession of child pornography on or about a certain date under US federal law.

In an undercover operation, the FBI had downloaded various files containing child porn through a file-sharing program, which were traced back to the defendant’s IP address. A search of the defendant’s residence produced a computer, on which child pornography was found in the “unallocated space” on the defendant’s hard-drive. Files found in unallocated space are files which have been deleted, but which can be viewed or accessed with special software. Based upon the government’s finding of child pornography files in the “unallocated” space on the defendant’s hard-drive, he was charged with possession of child pornography and convicted at trial.

On appeal, the defendant argued that evidence presented at trial was insufficient to support his conviction. The Ninth Circuit agreed, reversing his conviction. The court explained that the government had presented no evidence that the defendant knew that the files existed on the unallocated space of his computer’s hard-drive, or that he had the special software required to see or access the files. The Court also noted that there was no evidence that the defendant had “accessed, enlarged, or manipulated any of the charged images”, and that “he made no admission that he had viewed the charged images on or near the time alleged in the indictment.” Thus, because the only evidence supporting the defendant’s conviction was the deletion of an image (leaving it in the “unallocated space”), the Court determined that the evidence failed to support a conviction for possession of child pornography.

Third Circuit Upholds Warrant in Child Pornography Case

Mon, 28 Mar 2011 12:15:31 -0500

The Third Circuit Court of Appeals recently found that a search warrant in a child pornography case was sufficient, even if not based on a detailed description of the computer hard drive being searched. In US v. Miknevich, 2011 US App. LEXIS 3824 (3d Cir. March 1, 2011), the Court considered whether the affidavit providing the basis for a search warrant in a child pornography case need to include copies of the items being searched for or a detailed description of these items.

Defendant Stephen Miknevich was charged with possession of child pornography in the United States District Court for the Middle District of Pennsylvania. At trial, he moved to exclude from evidence the images of child pornography found by police on his home computer by challenging the validity of the search warrant used by the police. The District Judge denied his motion, and Miknevich pled guilty, understanding that he could still challenge the legitimacy of the warrant before the Third Circuit Court of Appeals.

When reviewing the validity of a search warrant, an appellate court (such as the Third Circuit Court of Appeals) must determine whether the judge issuing the warrant had “probable cause” to believe that the defendant was guilty of a crime. A judge issuing a warrant may find “probable cause” when, viewing the totality of the circumstances, “there is fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). If a substantial basis exists to support the judge’s finding of probable cause, the appellate court must uphold the finding even if a different judge “might have found the affidavit insufficient to support a warrant.” US v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).

Here, Miknevich argued that the warrant was invalid because the police affidavit that the issuing judge relied on did not include either a copy of the movie that the police expected to find on his computer, or a description of the movie’s content. Still, the Third Circuit found that the warrant was adequate, because it did contain the file name for the movie, which referred to explicit sexual acts being conducted by six and seven year old children. Although the Court recognized that file names do not always accurately describe file contents, they also noted that for a warrant, a judge need not be certain that the defendant was guilty of a crime, only that there was a substantial chance that he was. Based upon this standard, the Court held that the file name was enough, and that the warrant was valid.

PA Supreme Court Finds Search of Woman’s Purse Unreasonable

Mon, 06 Dec 2010 12:00:00 -0500

The Supreme Court of Pennsylvania recently reversed a decision by the Superior Court that a police officer had reasonable suspicion to conduct a warrantless search of a woman’s handbag for safety reasons based solely on the fact that the owner of the handbag was located inside a residence where another individual had been selling drugs. The case arose from an incident where, after a drug sale outside of a house, police officers obtained consent to search the home. Inside, they saw the Appellant sitting on a sofa with her handbag next to her on the floor. The officer testified that she had searched the Appellant’s purse because she feared that it might contain a firearm, stating that “the drugs were coming out of the property. The boy had drugs on him, and drugs and guns go hand-in-hand.”

The Appellant was convicted in the Court of Common Pleas of Philadelphia County, and appealed to the Superior Court. The Superior Court affirmed the Court of Common Pleas decision and upheld the legality of the search, noting that the Appellant had a large bag, easily capable of holding a gun, and that, a few minutes prior to the search, a suspect had emerged from the house after selling drugs to a confidential informant. The majority opinion explained that “drugs and guns frequently go hand-in-hand”, and that “the officer had a right to conduct a minimally intrusive search for weapons in order to protect herself.”

Upon review by the Supreme Court of Pennsylvania, the Superior Court’s decision was reversed. The Supreme Court’s opinion held that the police cannot frisk an individual for weapons unless the officer observes suspicious behavior or has prior knowledge of the individual’s criminal propensities. A protective search cannot be justified unless the officer can articulate facts that establish an individualized, objective basis for perceiving a threat of armed violence. An individual’s location, standing alone, does not provide sufficient grounds for a search, pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Courts cannot abandon the totality of the circumstances test and rely exclusively on the “preconceived” notion that certain types of criminals regularly carry weapons.

The Court explained that here, the officer conducted a protective search of the Appellant’s purse based on a generalization that firearms are commonly found in close proximity to illegal drugs; however, upon entering the house, the officer did not detect any unusual behavior or furtive movements on the Appellant’s part, nor did she observe a suspicious bulge in the Appellant’s purse. An officer must have a particularized, objective basis for a protective search; an individual’s mere proximity to others engaged in criminal activity is insufficient. Thus, the Court held that the contraband discovered in the Appellant’s handbag should have been suppressed, because the Commonwealth had failed to elicit any facts that supported an objectively reasonable belief that the Appellant was armed and dangerous.

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 marc@nefflawoffices.com.

Third Circuit Criticizes Child Porn Sentencing Guidelines

Fri, 26 Nov 2010 10:00:00 -0500

The Third Circuit Court of Appeals recently affirmed a New Jersey U.S. District Judge’s decision to impose a sentence of less than the mandatory minimum for a defendant convicted of child pornography charges. In United States v. Grober, the defendant pled guilty to six child pornography charges. Under the sentencing guildelines set forth by the Department of Justice, the judge was advised to sentence the defendant to a term between 235 to 293 months imprisonment. Calling the guidelines “draconian”, the judge instead sentenced the defendant to 60 months imprisonment, the mandatory minimum sentence.

The Department of Justice appealed the sentence, arguing that the District Court rejected the guidelines without adequately addressing the prosecution’s arguments about the rationales of Congress and the Sentencing Commission, embodied in the guidelines. However, they did not argue that the District Court lacked the authority to disagree with the guidelines on policy grounds, or that the sentence imposed was substantively unreasonable. Upon review, in a 2-1 decision the Third Circuit rejected the government’s appeal, noting widespread dissatisfaction amongst federal judges as the sentencing guidelines for child pornography crimes have grown increasingly harsh.

Peer-to-Peer Networks Remain Target of Child Pornography Investigations

Wed, 24 Nov 2010 10:00:00 -0500

Although a federal judge ordered peer-to-peer (“P2P”) network LimeWire to shut down last month due to copyright infringement issues, investigations continue by law enforcement officials into the use of older versions of LimeWire and other P2P networks as forums for the distribution of child pornography.

Since 2003, federal law enforcement agencies have undertaken a major initiative against the distribution of child porn over peer-to-peer networks. Unlike traditional computer networks, which use a central server to exchange files, peer-to-peer networks like LimeWire allow users to connect their computers directly to one another. Once a user installs a peer-to-peer software application on his or her computer, he or she can access it directly to search for and download files designated for distribution on any computer using the network at that time.

Investigators and agents from participating state and federal agencies continue to infiltrate P2P networks to identify those who have distributed and taken possession of child pornography. Sophisticated computer programs have been developed to identify child pornography stored in folders shared through peer-to-peer applications. These applications work by searching for and identifying the “fingerprints” of known child pornography files. Every computer file, regardless of name, has a unique “fingerprint” that distinguishes it from any other file. Known child pornography files have been recorded in a national database. The investigator’s software searches for the digital fingerprints of these known child porn images on LimeWire, and then reveals the location of the computers trading the illegal images.

Although the Fourth Amendment generally requires police to have a valid warrant to seize a computer from a person’s private home, several federal courts have recently ruled that the police do not need a warrant to search publicly accessible files from a private computer on a peer-to-peer network. The Fourth Amendment prohibits unreasonable searches and seizures. Except for several well-noted exceptions, the police must have a valid warrant prior to conducting a search of a person or their private property. If the police do not have a valid warrant, any evidence seized during the illegal search is generally inadmissible at trial. Recent decisions have held that individuals do not have reasonable expectations of privacy in content made publicly available on LimeWire; therefore, law enforcement need not have a warrant to search and download content from the peer-to-peer site.

“Mini-Madoff” Sentenced to 14 Years in Prison

Mon, 22 Nov 2010 09:30:00 -0500

Florida hedge fund manager Arthur Nadel recently was sentenced to 14 years in prison, stemming from a $162 million Ponzi scheme. Nadel, 77, had pled guilty to 15 counts of securities fraud, mail fraud and wire fraud. According to prosecutors, Nadel had defrauded investors by falsely claming that he was a successful attorney and trader, only later to spend their money to furnish his lavish lifestyle.

Nadel will serve his sentence at the same federal prison in North Carolina that houses famed inmate and Ponzi mastermind Berni Madoff. Madoff, 72, pled guilty to fraud charges last year after cheating investors out of billions of dollars. He is currently serving a 150-year sentence. Prior to surrendering to authorities in 2009, Nadel went on a two-week, cross-country trip, during which time he communicated in a letter to a family member that he anticipated that the press would call him “mini-Madoff”.”

“Massive Frauds” on the Rise

Fri, 19 Nov 2010 10:00:00 -0500

An FBI official recently reported to the U.S. Senate Judiciary Committee that the bureau has uncovered “massive frauds” in its continuing effort to fight financial crime. Kevin Perkins, Assistant Director of the FBI’s Criminal Investigative Division, reported that new corporate fraud cases, including newly identified Ponzi schemes, are up by 111 percent. In addition, high-yield securities frauds have grown by more than 200 percent.

Several high-profile securities fraud cases have surfaced in just the past few months alone. In June, former chairman of Taylor, Bean, and Whitaker, a large mortgage origination company, was charged with a $1.9 billion fraud that contributed to the failure of Colonial Bank, one the United State’s largest banks and the sixth-largest bank failure in the country. In July, a managing partner at WG Trading and Westridge Capital Management pleaded guilty to his participation in a $700 million scheme that defrauded charitable and university foundations as well as pension and retirement plans. In September, the owner and former chief executive officer of Capitol Investments pleaded guilty to an $880 million Ponzi Scheme involving his New Jersey Firm.

Perkins also reported that in the last three years, the number of mortgage fraud cases seen by the FBI has steadily climbed from 1,200 in 2007 to over 3,000 in 2010. Of these cases, nearly 70 percent represent losses to financial institutions and other victims exceeding $1 million. In many of these cases, according to Perkins, “the loss far exceeds $1 million.” In response to the growing number of mortgage fraud schemes, the government has undertaken “Operation Stolen Dreams”, a take-down of mortgage fraud schemes throughout the country by President Obama’s interagency Financial Fraud Task Force.

Facebook Fraud a Serious Concern

Mon, 15 Nov 2010 10:00:00 -0500

Hacking of Facebook accounts has become a “major issue” for the popular social networking site. Richard Allan, Facebook’s head of European public policy, recently addressed the growing concern, promising that the site would counter the problem through the implementation of “sophisticated methods of tracking unusual user behavior.” Concern over user’s privacy arose recently after hackers gained access to the Facebook account Ronald K. Noble, secretary general of international law enforcement agency Interpol. The hackers had sought access to access to highly sensitive information on wanted criminals via Noble’s account.

Although the hacking of Noble’s account has been the most high profile incident of “Facebook fraud”, a recurrent problem for the site has been the hacking of user’s accounts to contact friends and dupe them out of relatively large sums of money.

According to Allan, the company has launched a “site integrity” projected devoted to tracking suspicious activity. The site plans to add warnings if it is accessed from unusual locations or by different methods than usual, and to require users to verify the names of their friends to ensure that only the real user has access to their account.

Charges Dropped Against Rapper T.I.

Fri, 12 Nov 2010 10:00:00 -0500

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.

Juror’s Use of iPhone Causes Mistrial in Manslaughter Case

Wed, 10 Nov 2010 10:00:00 -0500

The Florida Court of Appeals recently overturned a manslaughter conviction because a juror used his iPhone to look up a definition during jury deliberations. In 2006, Jose Tapanes was convicted of manslaughter after fatally shooting his neighbor during a heated argument. Tapanes claimed to have feared for his life at the time of the argument so as to render his decision to shoot his neighbor “prudent”, a term used both in closing arguments and in the jury instructions.

After Tapanes was convicted, a juror informed defense counsel that the jury foreperson had used his smart phone during a break in deliberations to look up the definition of “prudent”. Under Florida law, the introduction of external information into jury deliberations could be grounds for a new trial if a court finds that this information may have affected the verdict. Based upon the jury foreman’s use of his iPhone, defense counsel moved for a new trial.

Upon review, the Court of Appeals granted the defendant’s motion for a new trial, based upon a finding that the juror’s use of his smart phone to look up a definition and then share that definition with other members of the jury constituted misconduct that may have affected the verdict in the case. The Court emphasized that the juror’s use of the iPhone to access a dictionary was no different than referencing a bound dictionary, a material long recognized by Florida courts to be prohibited during jury deliberations. Further, the Court noted that the fact the juror was not physically inside the jury room when he accessed the definition made no difference, since he conveyed his recollection to other jurors once deliberations resumed, and that the concept of “prudence” was one that may have been key to the jury’s deliberations in the case.

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 marc@nefflawoffices.com.

New Jersey Court Throws Out State’s Fraud Suit Against Springsteen Ticket Sellers

Wed, 22 Sep 2010 10:00:00 -0500

The New Jersey Superior Court recently threw out a lawsuit filed by the State against ticket resellers Orbitz Worldwide and TicketNetwork Direct. The suit arose from the sale of tickets to Bruce Springsteen shows at Giants Stadium last year, six days before Ticketmaster began selling tickets. The state alleged that the resellers had violated New Jersey’s Consumer Fraud Act by offering tickets, some of which they did not actually possess or which did not correspond to actual seats, before they were made available to the public. Both Orbitz and TicketNetwork Direct operate as an internet market-places for independent ticket sellers; neither possessed actual tickets for sale. The Superior Court held that these providers do not have liability for a ticket seller’s mistake in the description of an item being sold.

Those accused of crimes, or administratively punished by “state” officials, 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 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 marc@nefflawoffices.com.

Sentencing in Drug Case Vacated

Tue, 21 Sep 2010 16:00:28 -0500

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.

Counsel can be Deemed Ineffective for Failing to Advise a Defendant of Collateral Consequences

Thu, 16 Sep 2010 10:00:00 -0500

The Superior Court of Pennsylvania recently considered whether a defendant’s counsel was ineffective for failing to inform him that a guilty plea to indecent assault would result of the loss of his vested pension rights under the Public Employee Pension Forfeiture Act (PEPFA). Defendant Joseph Abraham, a high school teacher, had offered $300 to a student in exchange for sex, and also touched her buttocks. Abraham gave the student a business card with his private cell phone number written on it. Several months later, the student disclosed the incident to school police. Abraham, 67 years old at the time, was allowed to retire with pension. In December of 2008, Abraham pled guilty to one count of corruption of minors and one count of indecent assault in the Court of Common Pleas of Allegheny County. Pursuant to PEPFA, by pleading guilty to indecent assault, Abraham forfeited his rights to his pension upon conviction.

On appeal, Abraham argued that his counsel at trial had been ineffective for failing to have informed him that he would lose his pension upon conviction prior to entering his guilty plea. In order for a plea bargain to be valid, a defendant’s plea must be knowing and voluntary. Under the Sixth Amendment to the US Constitution, all criminal defendants are guaranteed a right to assistance of counsel in making all decisions related to critical stages of the criminal process. In Strickland v. Washington, 466 U.S. 668, 686 (1984), the US Supreme Court held that counsel must be competent, and that the attorney’s actions must be effective. In reviewing Abraham’s claim of ineffective assistance, the Superior applied the test set forth in Strickland, considering whether Abraham’s attorney’s so undermined the adversarial process that the trial could not be relied on as having produced a fair result in his case.

The Court found that Abraham’s attorney’s failure to inform him that he would forfeit his pension rights upon pleading guilty to indecent assault rendered his assistance ineffective. It reasoned that because forfeiture of benefits is punitive in nature, it is intimately connected to the criminal process, and thus is knowledge that must have been communicated to Abraham by his attorney. The Court remanded the matter to hearing to determine what prejudice Abraham suffered.

Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures that 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 marc@nefflawoffices.com.

Prosecutorial Misconduct Causes Reversal in Drug Case

Wed, 15 Sep 2010 09:00:00 -0500

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.