Florida v. Jardines, a US Supreme Court case from 2013, related to the 4th Amendment and a drug sniffing dog and a front porch. And Florida (of course).  But, the same thing now applies to people in Lehigh County and your Lehigh County criminal lawyer should know the implications behind this very important case.  

The police received an unverified tip that marijuana was being grown in the defendant's residence. He began surveillance of the defendants home. After 15 minutes of no activity, two officers, one of them a trained K9 handler, approached the residence with the drug sniffing canine. Upon reaching the front porch, the dog alerted that it had picked up an odor of cocaine or marijuana, signaling that the source of the odor was the front door.  Based on the canine's alert and the unverified tip, the officers obtained a search warrant for the residence, and upon execution of the search, found multiple marijuana plants. 

The defendant was charged with drug trafficking. The Supreme Court of Florida affirmed an order of the Florida trial court suppressing the evidence, finding no probable cause for the 4th Amendment search, rendering such search invalid and the warrant based on the canines alert was therefore invalid. The Supreme Court of United States granted the review of the case to determine the limited question of whether the government's use of trained dogs to investigate. Around the residence constitutes a "search" for fourth amendment purposes. The High Court determine that such behavior does constitute a search for the 4th Amendment purposes. The court also determined the front porch of the residence constitutes "curtilage" under US Constitutional precepts. Accordingly, the search warrant was defective in this case, because the police use the device (a term that was argued by the dissent) unavailable to the public, the form of a trained police dog, to make observations not readily available otherwise, and uses those observations to justify the authorization of the warrant. The Supreme Court of Florida's affirmance of the order suppressing the evidence was affirmed in a 5 to 4 decision.

75 Pa. C.S.A. § 1553 authorizes the Department of Transportation (PennDOT) to issue an occupational limited license to a driver whose operating privileges have been suspended as long as the issuance of such a license is not otherwise prohibited by the section. The list of prohibited or otherwise ineligible drivers is long and your Lehigh County criminal lawyer should be ready to advise you properly. If the suspension was caused by violations committed while the driver was operating a commercial motor vehicle, the driver may not be issued an occupational limited license for the purpose of operating a commercial motor vehicle. Normally, the Department of Transportation will issue and occupational limited license when the individual is disqualified from obtaining one under the commercial motor vehicle safety act of 1986. 

The department issuing an occupational limited license to drivers whose operating privileges have been recalled, canceled, or revoked. A person whose operating privilege has been suspended for a conviction under 75 Pa. C.S.A. §1543 may not petition for an occupational limited license unless the department's records show that the suspension for a conviction under Section 1543 occurred only as a result of: a) the suspension for failure to respond to a citation imposed under the authority of 75 PA CSA § 1533; b) a suspension for failure to undergo a special examination imposed under the authority of Section 1538(a); c)a suspension for failure to attend a departmental hearing imposed under the authority of section 1538 (b); or d) a suspension that occurred as a result of a violation of Section 1772(b).  

The petition for an occupational limited license may not be filed until three months have been served for the suspension under Section 1543 (a). 

Here's the "punchline" in an important case regarding burglary and how it affects RRRI eligibility:

Where a trial court fails to make a statutorily required determination regarding a defendant's eligibility for an Recidivism Risk Reduction Incentive minimum sentence as required, the sentence is illegal. Commonwealth v. Robinson, 2010 PA Super 192 (Pa. Super. Ct. 2010)

If you are facing a state prison sentence in Lehigh County, you better review the RRRI program with your Lehigh criminal defense lawyer and look at your prior criminal history.  Remember -- The Recidivism Risk Reduction Incentive (RRRI) statute offers, as an incentive for completion of the program, the opportunity for prisoners to be considered for parole at the expiration of their RRRI minimum sentence. 61 Pa.C.S. § 4506.

In this case of Commonwealth v. Robinson, the Defendant challenged the trial court's refusal to grant her eligibility for the RRRI program. The appellate court first concluded, that contrary to the Commonwealth's claim that the issue not preserved for appellate review, the issue was non-waivable because it challenged the legality of defendant's sentence. The appellate court further concluded that application of the statute to defendant, who was convicted after the law became effective, did not violate the restriction on the retroactive effect of statutes, as the statute did not increase any rights due defendant or imposed any legal burden or additional punishment. As for the merits of defendant's claim, the appellate court concluded that the trial court erred in failing to consider defendant's eligibility for an RRRI sentence. Because the imposition of a negotiated sentence, like defendant's, does not conflict with the statutory scheme of the RRRI sentencing process and does not disqualify a defendant from eligibility under the RRRI statute, the trial court erred in failing to consider defendant's eligibility for an RRRI sentence.

Although the merger doctrine articulated in Anderson appears clear, a Lehigh County criminal lawyer must approach research on merger with great caution, reviewing not only the facts underlying the opinion as compared to the facts of the case being defended, but also the reasoning by which the appellate court reached its conclusion in that case, keeping in mind the rule and Anderson. With that caveat, here are a few cases on merger that will be helpful to any Lehigh County criminal attorney. 

The terms "greater" and "lesser-included" in merger analysis refer to the logical relationship between the elements of the offenses, not to the grading of the offenses or the punishments imposed. An offense that is more broadly defined is conceptualized as the greater offense, and the offense who's elements are entirely subsumed is conceptualized as the lesser-included offense. Once such a relationship exists, the merger doctrine requires that only one sends be imposed, but it has nothing to say about which sentence that should be.  This is from the case of Commonwealth v. Everett, from 1995. 

Similarly, a court could impose a sentence for homicide by vehicle while driving under the influence, a third-degree felony with a mandatory minimum sentence of three years, while vacating a separate sentence for involuntary manslaughter, a first degree misdemeanor. Possession of an instrument of crime does not merge with aggravated assault, even if the aggravated assault sentence is enhanced by the possession of the same weapon as the court in Commonwealth v. Brown in 1992 determined.  When one act gives rise to a conviction under several subsections of the simple assault statute, only one sentence under one subsection may be imposed. When a criminal act has been committed, broken off, and then resumes, at least two crimes have occurred in sentences may be imposed for each. This is the case of Commonwealth v. Belsar from 1996.  In Commonwealth v. Shannon from 1992, the court determined that since the crime of rape includes the crime of indecent assault, a defendant cannot be sentenced on both if they arose from the same criminal episode. Even if the sentence on one count is suspended, the prejudice is such that the sentence must be vacated on the improperly imposed suspended sentence. Separate sentences could not be imposed for violating separate subsections of the voluntary deviant sexual intercourse statute.

I previously blogged last month about cruel and unusual punishment and mentioned a case regarding whether a penalty is civil or criminal. That case that I quoted was, Commonwealth v. CSX Transportation Incorporated from 1998. In this particular case, several factors were mentioned by the court to determine when the legislature has intended to establish a civil penalty as opposed to a criminal penalty. These factors included:  1: whether the sanction involves an affirmative disability or restraint such as imprisonment; 2: whether the sanction has historically been regarded as a punishment; 3: whether the sanction only comes into play upon a finding of scienter; 4: whether the sanction's operation will promote the traditional aims of punishment such as retribution and deterrence; 5: whether the behavior to which it applies is already a crime; 6: whether an alternative purpose to which it may rationally be connected is assignable for it; and 7: whether the sanction appears excessive in relation to the alternative purpose assigned.

In a Lehigh County theft case, it is typical that a person is also charged with "receiving stolen property".  Such a charge is not easily known or apparent on its face.  The charge is defined under 18 Pa.C.S. § 3925, which states that a person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.  "Receiving" means acquiring possession, control or title, or lending on the security of the property.  So, it makes some sense that it is a companion charge to a theft, burglary, or robbery case.  

As such, the offense of receiving stolen property, which is traditionally treated as a distinct offense, is part of the comprehensive "theft" offense because analytically the receiver does precisely what is forbidden by 18 Pa. Cons. Stat. § 3921, namely, that a person exercises unauthorized control over property of another with the purpose of applying or disposing of it permanently for the benefit of himself or another not entitled.  Again, this is normally a "companion" offense and should be discussed with a Lehigh County criminal lawyer.  

On case in particular is Commonwealth v. Shaffer, 279 Pa. Super. 18, 20 (Pa. Super. Ct. 1980).  In this case, a truck driver with a load of beef became broken down.  Instead of waiting for a repair and continuing on to his intended destination, the driver/defendant went to his neighborhood and sold the beef to friends/family for a much reduced price that its fair market value.   He was arrested and charged with theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3921 (1973), and receiving stolen property, 18 Pa.C.S.A. § 3925 (1973). As you can guess, the defendant was not given permission to sell the beef on the side of the road.  The jury acquitted appellant of theft by unlawful taking or disposition but convicted him of receiving stolen property.The court affirmed the conviction, holding that consistency in the jury's verdicts was unnecessary because there was sufficient evidence to support the verdicts the jury returned, including substantial evidence as to the fact that defendant knew the beef was stolen when he disposed of it.

We previously wrote about extradition in part 1.  Once the governor's warrant is issued, the accused, upon arrest on the governors warrant, must be taken "forthwith" before a judge of a court of record (usually a Lehigh Common Pleas Court judge). The judge must inform the defendant of the accusations and demand, of the right to counsel from a Lehigh County criminal lawyer, and of the right to test the legality of the arrest by applying for a writ of habeas corpus. The accused may waive these rights and consent to returning to the demanding state. This is done normally to speed up and individuals return to the Commonwealth of Pennsylvania.  It is known as waiving extradition. Under the Post Conviction Relief Act, if a petitioner's conviction and sentence resulted from a trial conducted in his absence, and if the petitioner has fled to a foreign country that refuses to extradite him because a trial in absentia was employed, the petitioner is entitled to the grant of a new trial if the refusing country agrees by virtue of this provision to return him, and if the petitioner upon such return to this jurisdiction so requests. This is from 42 Pa. C.S.A. Section 9543. 

Unlike a request for extradition, which is a result that the state in which the prisoner is incarcerated transfer custody to be requesting state, a detainer lodged pursuant to the Interstate Capital Agreement on Detainers is merely a means of informing the custodial jurisdiction that there are outstanding charges pending in another jurisdiction and requesting that custodial jurisdiction hold the prisoner for the requesting state or notify the state of the prisoner's imminent release. This is from Commonwealth V. Davis of 2001 that determined that a detainer alone does not trigger the 120 day rule.  The legality of extradition must be challenged in the asylum state prior to extradition to the demanding state. This is from Commonwealth v. Carlos of 1975. Once a defendant is extradited, the legality of the extradition is moot. The only relief granted and accused illegally extradited by Pennsylvania (meaning - PA is the demanding state) has been suppression of evidence obtained as a result of the detention and transportation.

Entrapment happens, even in Lehigh County.  But, it is rare to prove and rare to prevail upon.  It is up to your Lehigh County criminal lawyer to make sure he or she knows how to protect your rights from entrapment.  

In a particularly important case from the Supreme Court, the defendant was convicted of two counts of distributing heroin in violation of 21 U.S.C.S. § 84(a)(1) in the district court. The court of appeals affirmed. The case arose from two sales of heroin by defendant to agents of the Federal Drug Enforcement Administration (DEA). The defendant contended that he neither intended to sell nor knew that he was dealing in heroin and that all of the drugs he sold were supplied by a government informant. The defendant further contended that if the jury had believed that the drug was supplied by the government information that he should have been acquitted. The United States Supreme Court held that defendant could be convicted for the sale of contraband which he procured from a government informant or agent. Defendant's counsel conceded on appeal that defendant was predisposed to commit the offense. Hence, his predisposition rendered the defense of entrapment unavailable to him and the court determined that the judgment was affirmed.  Hampton v. United States, 425 U.S. 484 (U.S. 1976)

An important Pennsylvania case is Commonwealth v. Bonace, 391 Pa. Super. 602 (Pa. Super. Ct. 1990).  In this case, the Commonwealth prosecuted the appellant for burglary, theft by unlawful taking, and criminal conspiracy, of which he was convicted. Appellant asked an individual to participate in the commission of several burglaries. The individual purported to agree but went to authorities. Appellant was arrested after commission of a burglary, rather than before, due to faulty surveillance equipment. The court held that the police involvement in the criminal activity was not so outrageous that the prosecution was barred on due process grounds. The police did nothing more than allow the appellant to commit the criminal acts before he was arrested. The court next stated that whether to declare a mistrial rested in the sound discretion of the trial court. The court concluded that only one of appellant's four asserted references to a prior bad act caused the trial court to give an instruction to disregard a witness' answer. Further, the court found no abuse of discretion occurred in not granting a mistrial because appellant's counsel elicited the remark; it was a fair response to the question asked, and appellee did not attempt to take advantage of the reference. Thus, the court affirmed the judgment.

Cruel & Unusual Punishment in Lehigh

This is a post about cruel and unusual punishment in Pennsylvania and, consequently, Lehigh County.  The Pennsylvania Constitution in Article 1 Section 13 provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted." In addition, the Eighth Amendment to the United States Constitution similarly provides, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The basic concept underlining the Eighth Amendment is nothing less than the dignity of man. Although the state has the power to punish, the Eighth Amendment stands to assure that this power be exercised within the limits of civilized standards. This is from the case of Rivera v. Pennsylvania Department of Corrections from 2003.  Moreover, the United States Constitution's Eighth Amendment banning cruel and unusual punishment has been applied to the states by the 14th Amendment. The standard of what constitutes "cruel and unusual punishment" is fluid, and includes not only the penalty inflicted but also the severity of the penalty measured against the crime committed, the process by which the penalty is inflicted, and whether the punishment makes a measurable contribution to acceptable goals of punishment or is nothing more than the purposeless and needless imposition of pain and suffering.  What constitutes cruel and unusual punishment in the constitutional sense is a matter which defies concrete definition. This is of tremendous frustration to a Lehigh County criminal lawyer as it empowers judges and prosecutors to provide alternative or lengthy sentences.  

More Case Law

Generally, the concept of cruel and unusual punishment is one of wide application, capable of acquiring new depth of meaning to conform to more enlightened concepts of criminal justice. The case involving this theory is from Coker v. Georgia from 1977. The Eighth Amendment protects individuals against excessive civil fines, including forfeitures. Whether a particular punishment is criminal or civil is initially a question of statutory construction. However even when the legislature has intended to establish a civil penalty, the courts will inquire further to determine whether the statutory scheme is so punitive in purpose or effect as to transform what was intended as a civil remedy into a criminal penalty. These factors were outlined in Commonwealth v. CSX Transportation Incorporated from 1998.

An expungement means the removal of criminal information so that there is no trace or indication that such information existed. It also means the elimination of all identifiers which may be used to trace the identity of an individual which allows only remaining data to be used for statistical purposes only. If your Lehigh criminal lawyer beats your case, gets you into section 17, or ARD, you can get an expungement.  This comes from Title 18 section 9101 of the Pennsylvania Code. Section 9122  states that criminal history record must be expunged when, 

1. no disposition is been received or upon request for criminal history record information, 
2. no disposition has been recorded in the repository within 18 months after the date of arrest in the court of proper jurisdiction certifies to the director of the repository that no disposition is available, and no action is pending. Expungement may not occur until the certification from the court is received and the director of the repository receives the expungement order; or 
3. the person 21 years of age or older who is been convicted of a violation of section 6308 petitions the court of common in the county where the conviction occurred seeking expungement and the person has satisfied all terms and conditions of the sentence imposed the violation, including any suspension of operating privileges. Upon review of the petition the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation really into said conviction.

Section 9120(2)(b) also provides for an expungement when one individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for 10 years following final release from confinement or supervision; or to an individual who is the subject of the information has been dead for three years. This can be filed by the Lehigh County family to clear a person's name in the elder years.  

Notice of expungement must promptly be submitted to the central repository (wherever the records are file -- i.e. at the police station) which then must notify all criminal justice agencies which have received the criminal history record information to be expunged. The court must give 10 days prior notice to the district attorney of the county where the original charges filed of any applications for expungement under the provisions of section 9120 282. Supports know that the state please like standing to object to an expungement request or an expungement order, but the district attorneys office may do so. 9120(2)(c) expressly permits the prosecuting attorney in the central repository to maintain a list of the names and other criminal history information of persons whose records must by law or court rule be expunged when the individual has successfully completed a pretrial or post-trial diversion or probation program.  This means that if you receive ARD and This information maybe used only for the purpose of determining subsequent eligibility for such programs and for identifying persons and criminal investigations, it must be made available to any court or law-enforcement agency upon request.