There are many drug arrests in Philadelphia every year, and a significant part of the Philadelphia Municipal Court trial docket is made up of possession of drug cases. When a person is charged with any criminal offenses involving drugs in Philadelphia as prosecuted by the Commonwealth of Pennsylvania, most often through the Philadelphia District Attorney's Office, the defendant's case will always start in the Criminal Division of Philadelphia Municipal Court .
When a defendant is charged with any felony offenses, the defendant will be scheduled for a preliminary hearing. If any felony charges are "held for court," the criminal case will proceed to the Criminal Division of Philadelphia Court of Common Pleas. If a defendant is not charged with felonies, or if the felony charge(s) are dismissed, for example, at the preliminary hearing, the criminal case will remain in Philadelphia Municipal Court.
When a Philadelphia drug case is resolved in Philadelphia Municipal Court, the defendant's attorney must have a defense strategy as to how to achieve the best possible outcome. In Philadelphia drug cases, this strategy must include the tactical considerations involved with pre-trial motions.
What is a "motion to suppress" in Philadelphia Municipal Court?
The most common and important pretrial motion in drug cases is the motion to suppress physical evidence. Every Philadelphia drug case should be carefully analyzed for a motion to suppress. Even in cases where the person charge denies personal or constructive possession of the drugs, the police search of the client and/or seizure of the drugs must conform to the requirements of the Fourth Amendment and Article One (1) Section.Eight (8) of the Pennsylvania Constitution.
Criminal defense attorneys preparing for Philadelphia Municipal Court must be thoroughly familiar with suppression law, including the favorable appellate case law. Common Municipal Court factual scenarios, which raise suppression issues, include:
- The street exchange money for objects;
- Radio calls/anonymous tips plus corroborative information, if any;
- Ambiguous conduct by the defendant plus flight;
- Drug courier profile stops followed by defendants consent to search: and
- Automobile search.
When does a motion to suppress take place?
Motions to suppress in a municipal court can be made orally at the time of trial, but must be made prior to trial arraignment (Rule 1005. Pa.R.Crim.Pro.). If a motion to suppress is not made in Philadelphia Municipal Court it is considered ways and cannot be litigated in Philadelphia Common Pleas Court in the event of a de novo appeal, absent a claim of ineffective assistance of counsel or after discovered evidence.
"Sequestration" should be requested when stating grounds for the motion to suppress so as to not alert the police officer(s) to the legal and factual issues in the motion. Both federal and state constitutional grounds must be stated for the record when announcing the motion.
Useful Defense Tactics When Litigating a Motion to Suppress in Philadelphia Municipal Court
Useful defense tactics for a defendant's attorney to employ when litigating a motion to suppress follow:
DEFENSE TACTIC 1: The defense attorney should assume that the defendant has automatic legal standing to raise a Fourth Amendment or Article One (1) Section (8) claim, but should make sure to protect the appellate record by averring the defendant's possessory interests in cases were standing maybe contested by the Philadelphia District Attorney's Office.
It had generally been understood that a defendant charged with a possessory offense in Philadelphia had automatic standing to raise a claim of illegal search/seizure under the Fourth Amendment and/or Article One (1) Section (8) of the Pennsylvania State Constitution. Recent cases have shifted that burden somewhat however. A defense attorney can no longer safely rely on cases that require the Commonwealth of Pennsylvania (most often through the Philadelphia District Attorney's Office) to first specifically argue lack of a defendant's expectation of privacy to defeat the defendant's automatic standing.
In order to protect an appellate record, defense attorneys, when stating the grounds for the motion must aver, "on the record," a defendant's possessory interest, legitimate presence in the place searched, or other facts from which a reasonable and justifiable expectation of privacy can be deduced. Cases where the defendant personally possessed the drugs/contraband or had a clear possessory interest in the vehicle (car, truck, and so forth) or house where the drug/contraband was found should present no issues.
As critical as understanding the best defense tactics to employ when litigating a motion to suppress, it is also critical to understand which Pennsylvania court cases establish the law regarding when a motion to suppress will most likely be successful.
What Pennsylvania court cases are relevant to a motion to suppress in a Philadelphia drug case?
There are several important Pennsylvania cases which are relevant to Philadelphia drug cases (in addition to one Minnesota case and one United States Supreme Court case in particular). Understanding how these cases is critical to understanding how a motion to suppress should be litigated in Philadelphia Municipal Court. Some cases involve scenarios where a person was arrested with drugs in a house or apartment, and other cases involve scenarios where a person was arrested with drugs in an automobile.
Leading Pennsylvania cases holding that the drug defendant established a reasonable expectation of privacy in a house apartment include:
Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143 (1997)
Identification showing that defendants used house as their address found in house was sufficient to establish a reasonable expectation of privacy in the house.
Commonwealth v. Edwards, 874 A.2d 1192 (Pa. Super. 2005)
The defendant has a reasonable expectation of privacy in the house because the defendant lived at the house at least on a part-time basis; some clothing of defendant's was found at the residence; defendant was in possession of a key for the house, and was allowed, by the individual who either rented or owned the premises, to store person effects at the house.
Commonwealth v. Davis, 743 A.2d 946 (Pa. Super 1999)
Defendant with a key to the apartment who keeps clothes and prescription medication in the apartment, even if the defendant's name is not on a the lease, has a reasonable expectation of privacy in the apartment.
Commonwealth v. Rodriguez, 679 A.2d 1320 (Pa. Super 1996)
Defendant had a reasonable expectation of privacy in sister's home based on the close familial relationship and the sister's legitimate presence on the premises when the drug search took place.
Commonwealth v. Govens, 429 Pa. Super. 44, 632 A. 2d. 1316 (1993)
Defendant deemed to have apparent dominion and control over apartment used as residence. Factors to be considered by the Court in determining whether a defendant has a legitimate expectation of privacy in another person's home include: 1) possession of a key to the premises; 2) having unlimited access to the premises; 3) storing of clothing or other possessions on the premises; 4) involvement in illegal activities conducted on the premises; 5) ability to exclude other persons from the premises; and 6) expression of a subjective expectation of privacy in the premises.
Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969)
The defendant was deemed to have a reasonable expectation of privacy in the home of co-defendant's father.
Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684 (1990)
As the case name implies, a Minnesota State case overnight guest at a friend's house was deemed to have a reasonable expectation of privacy.
Jone vs. U.S., 362 U.S. 257, 80 S.Ct. 725 (1960)
A United States Supreme Court case which held that a reasonable expectation of privacy is had at a friend's apartment that defendant has "permission to use" and where defendant kept belongings and has slept.
Leading Pennsylvania cases holding that the drug defendant established a reasonable expectation of privacy in an automobile include:
Commonwealth v. Salomen, 2010 Pa. Super. (March 2010)
Reasonable expectation of privacy established where defendant had car license and registration in name of woman defendant who was defendant's wife.
Commonwealth v. Brown, 952 A.2d 1185 (Pa. Super. 2008)
Reasonable expectation of privacy established even though there was no Commonwealth evidence that the car was stolen. (The Commonwealth of Pennsylvania, is known as the "Commonwealth" in court proceedings).
Commonwealth v. Dugan, 855 A.2d 103 (Pa. Super 2004)
Defendant had reasonable expectation of privacy in a borrowed vehicle.
Commonwealth v. Govens, 429 Pa. Super. 44, 632 A. 2d. 1316 (1993)
Several of the Govens (as above) reasonable expectation of privacy factors applicable to a house should arguably apply to a car, truck, van, and so forth. In that regard, a reasonable expectation of privacy cannot be established in a stolen car or a rental car where the defendant may be the operator of the car, but not the named lessee or authorized driver. /9An important related consideration is that although a drug defendant may not have reasonable expectation of privacy in a house or car, the defendant may still have reasonable expectation of privacy in the particular item searched.)
Commonwealth v. Timko, 417 A.2d 620 (Pa. 1980); Commonwealth v. Parker, 619, A.2d 735 (Pa. Super. 1993); and Commonwealth v. Brundidge, 590 A.2d 302 (Pa. Super. 1991) are also relevant cases to whether a drug defendant has a reasonable expectation of privacy regarding a vehicle.
Additional Defense Tactics as to How to Best Approach a Motion to Suppress in a Philadelphia Municipal Court Drug Case
DEFENSE TACTIC 2: If the drug defendant has a meritorious legal issue, the defendant's attorney should not necessarily attack a police officer'ss credibility, particularly when dealing with collateral factual issues. Philadelphia Municipal Court judges prefer to grant motions to suppress on legal rounds rather than on credibility determinations
DEFENSE TACTIC 3: A defense attorney should not cross-examine unless necessary. After the Assistant District Attorney's direct examination, if the testimony supports a winning legal issue for the defense, then "no questions" is the best cross examination.
DEFENSE TACTIC 4: All non-frivolous motions to suppress should be made prior to trial arraignment. The motion will otherwise be waived for a de novo appeal or a writ of certiorari appeal.
DEFENSE TACTIC 5: A defense attorney should not make "frivolous" motions to suppress. The reason being that the defense attorney will lose credibility as a attorney. In addition, a favorable judge for trial may "sua sponte" recuse her/himself for trial in a drug case with good trial issues after denying a meritless motion to suppress.
DEFENSE TACTIC 6: A defense attorney should be careful about advising the defendant to take the witness stand during the motion to suppress in a Philadelphia drug case. The defendant's suppression testimony can be used by the Philadelphia District Attorney's Office to "impeach" the defendant if the defendant testifies differently at the Philadelphia Municipal Court trial (if the motion is denied), or at a Philadelphia Common Pleas Court trial in event of a de novo appeal. If the defendant is going to testify on the motion to suppress, the defendant should be fully prepared. As a general rule, defense testimony on a motion will be more useful in cases where the defendant convincingly raises a factual/credibility issue relating to the crucial legal issue. Defense testimony on a motion is less useful where the issue on the motion is a strict legal issue
DEFENSE TACTIC 7: If the Philadelphia Municipal Court judge grants the suppression motion and finds critical facts in favor of the defendant, the defense attorney should request that such findings be specifically stated "on the record." For example, if the judge finds the defendant did not match the police radio call description, or the judge makes pro defense credibility determinations (i.e.: "I find the defendant's version of the stop credible.), these matters should be stated "on the record" by the judge. The reason such matters should be made part of the "record" is that factual or credibility determinations made by the Philadelphia Municipal Court suppression judge are binding on the Philadelphia Common Pleas Court motions judge if the Philadelphia District Attorney's Office appeals to grant a little motion.
DEFENSE TACTIC 8: A defense attorney should consider the prospect of requesting a judicial "recusal" after the denial of a motion to suppress. Some evidence properly presented by the district Attorney on a motion (hearsay evidence for example) is inadmissible at trial, and this information may prejudice valid trial issues. The potential advantages and disadvantages for recusal should not be a "seat of the pants" decision, but must be considered as part of the overall trial strategy and preparation. Some key concerns for deciding whether to request a judicial refusal are:
- The strength of the trial issues; the gravity of the prejudicial evidence adduced at the motion;
- Whether the suppression judge is a favorable judge/forum for sentencing should the defendant lose at trial;
- Whether the Rule 1013 time period, related to a defendant's right to a speedy trial, is close expiration since judicial recusal is not "excludable" time; and
- Whether the defendant is being held in jail on the case being litigated.
DEFENSE TACTIC 9: The defense attorney should the judicial recusal request on the record. If a judge improperly denies a recusal request, then such denial is a valid issue on a writ of certiorari to the Philadelphia Court of Common Pleas Court in the event of a conviction on the drug case in Philadelphia Municipal Court.