PA Supreme Court Tackles Issue of Civil Forfeiture Again

Com v. $34,440: Proximity to Drugs presumption may be rebutted in forfeiture proceeding

The Supreme Court of Pennsylvania continues its consideration of the powers of civil forfeiture in a 5-2 decision that the “proximity to drugs” presumption in civil forfeiture proceedings may be rebutted by evidence that the seized property was not involved in any illegal activity.

Juan Lugo was pulled over for tailgating in a “borrowed” car with several friends in Monroe County (home of “The Tricky Triangle”). The officer who pulled Lugo over then smelled marijuana, obtained consent to search the car, and discovered ecstasy in the cigarette outlet, a small amount of marijuana by the rear passenger door, and the subject dollar amount in the “b-pillar” on the passenger side of the car.

Rafael Falette came forward claiming ownership of the vehicle, and claiming that the seized money was part of a personal injury settlement which he had withdrawn in cash and used to impress his friends. He produced settlement checks in nearly this amount, making his claim plausible, but the trial court granted the Commonowealth’s forfeiture petition because the proximity between the drugs and the money produces a statutory presumption that the money was involved in drug trafficking.

The controversy in this case was whether the effect of the statutory presumption should be irrebuttable or not. The statute provides for an “innocent owner” defense; is that the only way to rebut the presumption?

Majority by Baer: Entire Record’s Evidence Must be Considered

Justice Baer, writing for the 5-2 majority, rules that the presumption that arises from physical proximity of drugs is rebuttable regardless of whether the elements of the “innocent owner defense” are met. Thus, where evidence derived from the “entirety of the record” demonstrates that the money or other property had no actual connection to drug trafficking, the forfeiture petition should be denied.

The Court first ruled, however, that the discovery of property in close proximity shifts the burden to the defendant. Accordingly, it remains the defendant’s burden to adduce sufficient evidence to prove his innocence in regards to the property at issue. In this case, the Court vacated and remanded for further consideration, holding only that the trial court erred in refusing to consider evidence outside of the “innocent owner” defense.

Dissent by Saylor: No statutory grounds exists for this interpretation

Chief Justice Saylor dissents, arguing that no other statutory grounds exist outside of the innocent owner defense to rebut the presumption of guilt created by the statute.

Dissent by Mundy: Trial Court found Falette’s testimony incredible

Justice Mundy dissents, agreeing with the Chief Justice, and also noting that the trial court did not find Falette’s testimony about his personal injury settlement credible. Mundy would have ruled that the trial court’s assessment of the facts could not be disturbed, and that the judgment should stand on that basis.

Conclusion: Civil Forfeiture is Alive and Well

The legislature recently made modifications to and moved the civil forfeiture statute to a new section (now at 42. Pa.C.S. § 5802). The Court in this opinion was not asked to consider and does not question the constitutionality of the civil forfeiture process. This is the third case this year that the Court has taken on forfeiture, and twice it has asked serious questions about the validity of the overall scheme. In this case, the Court does not raise the same questions.

 

Read the whole Opinion Here.

Must I Let the Police Enter My House Even if they Don't Produce a Warrant?

My old boss, William Platt, a judge on the Pennsylvania Superior Court wrangled with the question of whether a citizen must allow the police to enter their home even if the police fail to show a valid warrant in the case Commonwealth v. Scott, decided in a non-precedential decision issued earlier today.  Commonwealth v. Scott, 3637 EDA 2016 (Pa. Super. Ct., 12/13/2017).

The Facts

The facts were these: the Allentown Police and Lehigh County Children and Youth services decided to conduct a home inspection where there was suspected child abuse.  Upon approaching the home, the officer detected a strong foul smell or urine and feces.  Upon approach to the doorway, the officers noticed that the home was littered with garbage.

On these facts, the police decided that they needed to take emergency custody of the children.  Mr. Scott refused to allow the police to enter without a written warrant and instead closed the door in the face of the police.  On these facts, Mr. Scott was found guilty of obstruction of justice and sentenced to jail.

What the Superior Court Said

Judge Platt, writing for the Superior Court upheld the conviction stating that once a police officer states his purpose clearly, the citizen must accept that purpose as true and is not entitled to see paperwork authorizing the police action.  Thus, you can choose to ignore the police order, but, you do so at your own peril.

The Takeaway

An interesting side question that the opinion leaves open is what would happen if a court later determined the police order had been illegal from the get go.  The opinion makes no effort to investigate weather the police's conclusion that there was an emergency situation where the children had to be removed was a valid conclusion.  If the police were mistaken, and the citizen resisted, could the citizen still be guilty of obstruction of justice?  My gut feeling would be no, but, with the Courts as pro-police as they are, my guess is it could be "comply or else" pretty soon.

 

Read the Whole Opinion Here.

Disorderly Conduct has a Higher Bar than Most Think

An interesting published decision came down today from the Pennsylvania Superior Court:  Commonwealth v. Pennix, 1709 WDA 2016 (Pa. Super. Ct., 12/12/2017).  The case is unusual because the appellate court completely reversed the conviction of a defendant.

The facts of the Case

The case concerned a teenage girl.  For whatever reason, this girl had to appear in the Allegheny County Family Court Building.  On her way into the court building the girl had to pass her backpack through a metal detector.

The metal detector went off and the sheriff told the girl to find the metal object.  As she did so, she became agitated and the Sheriffs began to pressure her.  Eventually the girl screamed “Fuck you I ain’t got time for this,” “Fuck you police” and “I don’t got time for you fucking police.”

The girl was subsequently instructed to leave the building, but she refused and continued to scream and be disruptive until she was escorted from the building by Sheriff’s deputies.  The Sheriffs then searched her bag and found a two-inch pocket knife and several loose razor blades.

On these facts, the girl was charged with possession of a dangerous weapon in a court facility and disorderly conduct.

The Decision of the Court

The Pennsylvania Superior Court, reviewing the conviction wisely reversed the decision of the trial court.  First, the court reasoned that the two inch knife and loose razor blades strewn helter-skleter in a backpack did not constitute a "dangerous weapon.  This is an important holding going forward, because had the court determined otherwise, virtually any sharp object on a person could be considered to be a weapon and subject that person to criminal sanction, or be used as a "sentence aggravator" which result in longer prison sentences.

Next, and even more importantly, the Superior Court correctly reasoned that the defendant's actions did not constitute disorderly conduct.  Disorderly conduct is probably the most over-abuse trick in the police handbook.  Often times a person will be charged with disorderly conduct because they were rude to a police officer (as happened here) or because they were acting generally impolite to another person.

Why This is Important

The crime of disorderly conduct requires that a person's actions bring about a situation where a fight with another person could happen at any moment.  Acting the fool or being a jerk may not win you many friends, but it shouldn't make you a criminal.  Police and Courts forget this all the time; instead they give people criminal records because they disapprove of the way they react to a situation or the language they use.  In all honesty, its just a type of social control over other people because the police and the courts have power and defendant's don't.  The criminal law, however, isn't meant to punish trifling social insults, its meant to prevent violence and real harms to others, thus why the touchstone of disorderly conduct is that a defenant's conduct is about to result in a physical fight.

Thankfully, the Superior Court got this decision right and the teenage girl will have learned a lesson in manners without having become a criminal.

Read the whole decision here.

 

 

Someone I know in the Lehigh Valley was Just Arrested by the Police for a Serious Crime, what is the next Step?

This information is provided by Andrew Theyken Legal, for educational reference only.  Always contact an attorney about your legal issues.

Arrest with a Warrant and Without a Warrant

If someone you know in Allentown, Bethlehem, or Easton, was just arrested by the police, it went down in one of two ways, either with an arrest warrant or without an arrest warrant.

Generally, the law prefers when people are arrested under the power of an arrest warrant.  This is because to get an arrest warrant, a police officer had to go in front of a judge previously and produce evidence through a criminal complaint that the person to be arrested probably committed the crime for which the defendant is about to be arrested.  This is a check in the system to make sure that police do not abuse their power by arresting people for no reason.

Although arrest warrants are the preferred method of getting someone into the criminal justice system, they are fairly rare beasts unless the crimes are extremely serious.  More often than not, people enter the criminal justice system after being arrested by a police officer on the beat.  The Pennsylvania Rules of Criminal procedure permit arrest without a warrant in two general classes of cases: (1) where a police officer has probable cause that a felony occurred, and (2) where a police officer witnessed a misdemeanor occur.  If either of these two events happened, a police officer can arrest a suspect without a warrant and that arrest starts the criminal court proceeding.  Penna. R. Crim. P. 502(2) cmt.

What Will Happen After the Arrest?

The question of what happens after the arrest depends on whether or not the arrest was made under the authority of an arrest warrant.  The discussion that follows is a bit technical, but, you should know that after your loved-one has been booked at the police station, their next stop is likely the jail and then a district magistrate (though they may appear in front of the district magistrate by closed circuit TV).  If you are looking for a loved one who has just been arrested, your best bet is to call the police department who made the arrest and the county jail where the arrest occurred.  If the arrest concerned a crime that is not very serious, the police may release a criminal suspect directly from the police station, in which case, the suspect will likely get a summons in the mail explaining what to do next.  Such a release is permitted if three conditions are met:

  • the most serious offense charged is a misdemeanor of the second degree or a misdemeanor of the first degree in cases arising under 75 Pa.C.S. 3802;
  • the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and
  • the arresting officer has reasonable grounds to believe that the defendant will appear as required.  Penna. R. Crim. P. 519(B).

Assuming your loved one isn't released from the police station, the following procedure will occur, depending on whether the arrest was or was not made under the authority of a warrant.

Arrest was Made under the Authority of an Arrest Warrant

If the arrest of your loved-one occurred under the authority of an arrest warrant, then, the purpose of appearing in front of the district magistrate (known technically as the preliminary arraignment) is to apprise the defendant of why they were arrested, to set bail, and to set a date for a preliminary hearing.  During the preliminary arraignment, the defendant must be told:

  • what charges have been filed against the defendant;

  • of the right to secure counsel of choice and the right to assigned counsel if indigent;

  • of the right to have a preliminary hearing; and

  • wheather or not bail is possible. Penna. R. Crim. P. 540(F).

If bail is possible in your case, the district magistrate will set bail and you will be permitted to try to make bail.  Penna. R. Crim. P. 540(H).

In addition, the district magistrate will set a date for your preliminary hearing.  At the preliminary hearing, the Commonwealth will present evidence to the district magistrate in an attempt to prove that there is probable cause that your loved one committed the crime that has been charged.  That preliminary hearing must occur within 14 days of the preliminary arraignment if the defendant is in jail and within 21 days if the defendant is out on bail.  Penna. R. Crim. P. 540(G)(1).

Arrest was Made not under the Authority of an Arrest Warrant

If the arrest of your loved-one occurred not under the authority of an arrest warrant, then, the purpose of appearing in front of the district magistrate (known technically as the preliminary arraignment) is to preliminary determine if there is probable cause to support the warrantless arrest (the determination may be based on written affidavits, an oral statement under oath, or both Penna. R. Crim. P. 540 cmt. E), apprise the defendant of why they were arrested, to set bail, and to set a date for a preliminary hearing.  During the preliminary arraignment, the defendant must be told:

  • what charges have been filed against the defendant;

  • of the right to secure counsel of choice and the right to assigned counsel if indigent;

  • of the right to have a preliminary hearing; and

  • wheather or not bail is possible. Penna. R. Crim. P. 540(F).

If bail is possible in your case, the district magistrate will set bail and you will be permitted to try to make bail.  Penna. R. Crim. P. 540(H).

In addition, the district magistrate will set a date for your formal preliminary hearing.  At the preliminary hearing, the Commonwealth will present evidence to the district magistrate in an attempt to prove that there is probable cause that your loved one committed the crime that has been charged.  That preliminary hearing must occur within 14 days of the preliminary arraignment if the defendant is in jail and within 21 days if the defendant is out on bail.  Penna. R. Crim. P. 540(G)(1).

First Opportunity for Bail

The key take-away from this discussion is that a preliminary arraignment is the first opportunity for a defendant to make bail.  If at all possible, you want Attorney Bench with your loved one at this point, because Attorney Bench is equipped to explain to the Court why your loved one should be bailed out of jail.  Without an effective argument about why bail is appropriate, you loved one may have two wait over two weeks before they are in front of a judge again.  Has your loved one been arrested and needs to make bail?  Contact Attorney Bench right away.

 

Parking Tickets in the Lehigh Valley

This information is provided by Andrew Theyken Legal, for educational reference only.  Always contact an attorney about your legal issues.

Did you get a Parking Ticket in Allentown, Bethlehem, or Easton?

If you are reading this, you likely got a parking ticket in Allentown, Bethlehem, or Easton.  There are probably a few questions going through your mind, like: (1) do I really have to pay this thing, (2) what happens if I don't pay? and (3) is it worth fighting?

Do I really have to Pay this Thing?

The answer, sadly is yes.  However, take some solace in the fact that you got the parking ticket in the Lehigh Valley and your only out a couple of bucks.  Decades ago, I got a parking ticket in New York City: $150 that I am never going to see again.

My first reaction when I got my $150 ticket was, "I'm not gonna pay this thing, what are they going to do to me?"  But, that was the wrong response.  In Pennsylvania at least, the Rules of Criminal Procedure treat parking tickets (not parking citations written by police officers) as a special class of violation.

Penna. R. Crim. P. 401(A) provides that municipalities may issue parking tickets to inform a motorist that the government believes that the motorist was parked illegally and therefore subject to a fine.  In fancy terms, when you get a parking ticket it is considered to be a civil violation.  If you pay the parking ticket, that's it and there is no long-term record of your civil transgression.

What Happens if I don't Pay the Fine?

Things start to get ugly if you don't pay your parking ticket.  The Rules of Criminal Procedure provide that if the parking ticket is not paid in a reasonable amount of time that the municipality may start a criminal lawsuit against you by filing a citation with a district magistrate.  Once a district magistrate is involved, you are going to have to pay the fine as well as court costs, which can range in hundreds of dollars.

What's worse, is if you don't respond to the summons issued by the district magistrate.  The failure to respond to a summons can result in your arrest.  And in this way a civil transgression could end up with you spending a night in jail.

Can I Fight the Parking Ticket?

Technically yes.  Your best bet is to call the parking authority of the city that you got the ticket and ask what their review policy is.  Usually there is a fairly simple form that you can fill out by yourself explaining the situation.  Or you could go down to the parking authority and throw yourself on the mercy of the clerk.  They may take pity on you---my roomate in college did this all the time and somehow got his tickets wiped clean.  But, more than likely, the clerk is going to look at you askance and just say "next" if that happens, don't make a scene.

If the parking authority refuses to wipe the ticket clean, your only hope is waiting until the municipality files a citation and you get a summons in the mail.  At which point, however, you are now going to have to deal with district magistrate court costs.  At this point, you will probably be wondering why you didn't just pay the $15 ticket.  But, if you have gotten this far on principle, it can't hurt to contact Attorney Bench and he will be able to give you some tailored suggestions for your fight against the man (or meter-maid).

One last thing, if you fight the ticket all the way to the magisterial district judge and loose, you are going to have a criminal record.

Should I talk to a Lehigh Valley Police Officer or Prosecutor without an Attorney Present?

This information is provided by Andrew Theyken Legal, for educational reference only.  Always contact an attorney about your legal issues.

The Answer is No

Many times in law, the answer to a question is it depends. However,  this is one case where the answer is simple.  No. Under no circumstance should you talk to a police officer or a district attorney without an attorney present.

Many of us are taught at a young age that the police are our friends, and, in many cases, this is true. However, when the police are conducting a criminal investigation, the last thing that you want to do is to  give the police evidence, that they may later use to incriminate you.

The Police are Permitted to Lie and Deceive you

In our country, the Supreme Court has determined that when the police are conducting a criminal investigation, they are free to lie and try to deceive you as to their real purposes. Because of this, during investigations, the police often appear to be your friend and  suggest that by you working with them, they may be able to help you.

The real truth is that oftentimes the police have very little actual evidence against you, however they are not required to disclose this fact to you. What happens then is that by talking to the police, you are supplying them with the rope that they will later use to hang you in court. Don't do this.

You are Going to Hang Yourself

 

“In more than 25% of cases later confirmed by DNA that the defendant could not have committed the crime, that defendant wrongly admitted to the crime under questioning by the police.”
— The Innocence Project

Think you are smarter than the police officer sitting across from you?  You may very well be right, but smarts have nothing to do with it.  You are going to be nervous and emotional and you are going to make a mistake.  Police officers conduct criminal investigations day in and day out.  However they portray it, the police are mostly just bored by having to interview you.  You on the other hand are going to be more scared and more emotional and likely more angry than you've ever been in your life.  This is why, as the quote indicates above, people wrongly admit to committing a crime under police questioning when DNA evidence later proves that they could not have committed the crime.

In my experience, in over 75% of cases, it is a defendant's own statements to the police which is later the key piece of evidence used to try and convict the defendant at trial. Don't be one of these 75% of cases. Just don't talk to the police.

It Can't Hurt staying silent

Whats the worst thing that can happen if you refuse to talk to the police?  Nothing, since the District Attorney is not permitted to use your silence against you.

You Need Attorney Bench's Help

If you find yourself in the position of needing to talk to the police, simply tell them in clear English that you refuse to talk to them without an attorney present.  Say nothing else.  Seriously, nothing.  After that, you need to contact Andrew immediately---only he is qualified to deal with the police and district attorney in a way that will not hurt you.

 

Want more convincing, watch this great video about why you should never talk to the police.

 

You have been charged with a crime in the Lehigh Valley, what happens Next?

This information is provided by Andrew Theyken Legal, for educational reference only.  Always contact an attorney about your legal issues.

You've Been Charged with a Crime

You've been charged with a crime, what happens next? The first thing that's going to happen, is that you will be taken before a magisterial district judge. it will be that District Judge's job to inform you of the charges that have been filed against you and to determine whether or not there is a base level of evidence against you---this is known as a preliminary arraignment and probable cause hearing.

The Probable Cause Hearing

Essentially, at this point, it is the obligation of the Commonwealth to produce evidence that there is probable cause that you committed a crime. If the district judge determines that there is probable cause that you committed a crime, that judge will bind over the charges and the case will move to the court of common pleas if it is a serious charge.

If the district magisterial judge determines that there is not probable cause, the case against you will be dismissed. However, this is not the end of the road; the district attorney has other tools and procedural mechanisms that they can employ to get you back in court.

Why you Need an Attorney at this Stage

Unfortunately for defendants, probable cause hearings are typically pro-forma events, and rarely results in the dismissal of charges. However, an experienced criminal defense attorney can use a probable cause hearing to question the Commonwealth's Witnesses to determine what the district attorney is thinking, and often the theory of the District Attorney's case.

This is your first opportunity to determine, what the Commonwealth may know about you. It's important that you not give up your opportunity to figure out what the Commonwealth knows, and because of this it is important to have an experienced criminal defense attorney even at this early stage of proceedings.  If you need help, you should contact Andrew right away