Criminal lawyer David Nenner speaks with reporters about a recent murder case. Nov. 29, 2017 *Photo credit – Philly.com
Given the severe penalties for murder charges in Pennsylvania, it’s crucial to start preparing defenses as soon as possible. There are often legal and factual defenses that must be investigated and developed. Time is of the essence. In Philadelphia murder cases, months, if not years may have gone by between the date of the incident and the arrest. The more time that passes, the more difficult it becomes to locate important witnesses and evidence.
Murder cases will usually depend heavily on witnesses and credibility of witnesses. It’s often the case that the victim and defendant knew each other or had a history. There’s often prior beefs between people, neighbors, friends and even family members that end up being the subject of murder cases. This is definitely true in murder cases filed in Philadelphia.
Investigating the facts of a case, especially the relationships between the parties and witnesses, will give rise to defense strategies and theories. How did the victim and defendant know each other, and under what circumstances? Did the victim or witness ever speak poorly about or ever threaten the defendant? Were there prior incidents of violence between the victim, witnesses and/or defendant?
In some murder cases, self-defense may be presented and successful. First, the defendant must have reasonably believed that he or she was in immediate danger of death or serious injury from the victim. Second, the defendant’s belief about having to use deadly force to protect himself or herself was reasonable under the circumstances.
Common Legal Defense – Motions to Suppress Based on Police Mistake (Constitutional Violation)
In a murder case, it’s critical to identify any possible police errors that would result in suppression of valuable evidence, i.e., a confession or physical evidence like a weapon or drugs. Whether it’s because of a violation of the 4th, 5th or 6th Amendment, suppression of evidence can result in charges being dismissed or provide the defense with the upper hand during any plea negotiations.
David Nenner is a criminal lawyer with over 30 years of experience in major criminal cases including murder, drug and gun cases. Mr. Nenner is a firm partner and is recognized as a TOP Criminal Defense Lawyer by Super Lawyers magazine. Call for a free consultation. (215) 564-0644
Firm partner David Nenner successfully represented Mr. Kennedy in a Philadelphia First Degree Murder case which concluded in a Not Guilty jury verdict in March 2019. This case involved a 2017 shooting in the Elmwood section of Southwest Philadelphia. Mr. Kennedy faced multiple charges including First Degree Murder, Attempted Murder, Assault and firearm charges. If he’d been convicted of First Degree Murder, Mr. Kennedy faced a mandatory life in prison sentence.
The case was featured in a Philly.com article, He shot 4 men, killing 1, but turned down a plea deal. This month a Philly jury found him not guilty (https://www.philly.com/news/jabir-kennedy-self-defense-philadelphia-district-attorney-handgun-murder-homicide-court-20190328.html, March 28, 2019).
Self-Defense, a Rare, but Effective Defense
The facts of the case supported self-defense, which is pretty rare in first degree murder cases in Philadelphia. Read more about self-defense in criminal cases here. The incident began with an altercation Mr. Kennedy had with his young daughter’s mother. A total of 5 people, the mother’s family members and several of their friends, then drove to Mr. Kennedy’s home clearly intending to harm him. The evidence showed that these individuals brought brass knuckles and guns, one of which Mr. Kennedy grabbed and fired after he was beaten over the head. Four of the assailants were shot; one later died.
Mr. Kennedy was a gainfully employed resident of Philadelphia with no prior criminal history. The District Attorney’s Office offered a plea deal, a nearly 20+ year prison sentence that would have effectively ruined Mr. Kennedy’s life.
After a week long trial, the jury found Mr. Kennedy NOT GUILTY of all charges.
Mr. Nenner is a skilled trial attorney specializing in major criminal cases such as murder/homicides, drug possession and dealing and illegal gun possession. He has over 30 years of experience and is recognized as a “Top Criminal Defense Attorney in Philadelphia” by Super Lawyers.
Gun charges are some of the most common cases in Pennsylvania’s federal court, especially for residents of Philadelphia. Usually, federal gun charges are filed with other charges, like drug delivery.
Federal sentencing laws for gun possession convictions are especially harsh. Under federal criminal law, many defendants face mandatory minimum prison sentences of 5, 10 or even 30 years which are statutorily required to run consecutively, NOT concurrently.
Federal criminal cases accepted in Pennsylvania including Philadelphia, Delaware County, Montgomery County, etc. FREE CONSULTATIONS (215) 564-0644
In the article below, Philadelphia Criminal Lawyer David Nenner discusses some of the most common federal laws pertaining to gun possession and their mandatory prison sentences. Learn more about gun charges in Pennsylvania.
Prior Felony Conviction – 10 Year Prison Sentence
Title 18 of the U.S. Code Section 922 makes it illegal to transport or possess any gun/ammo which has been shipped or transported between states. Section 922 (g)(1) applies to anyone who has a prior felony conviction (i.e., a crime punishable by over 1 year imprisonment).
Section 922 (g)(1) provides:
It shall be unlawful for any person—who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year…* to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. [*additional subsections omitted]
Section 924 specifies a 10 year prison sentence for violation of Section 922 (g). Section 924 (a)(2) provides:
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
Possession of a Gun During Commission of a Drug Crime or Violent Crime
Under Section 924 (c)(1), which is provided below, individuals who carry, brandish or discharge a gun during the commission of a drug crime or violent crime (like a robbery) is subject to mandatory prison sentences. The length of the prison sentence depends on the facts. Was the gun merely possessed as opposed to brandished or otherwise discharged or fired?
Here’s an explanation of the prison sentences. A Philadelphia resident is selling drugs on the street and is arrested by federal agents in a massive multi-state drug bust.
If she merely carried a gun in her backpack when she was selling drugs, she faces 5 years in prison.
If she waived her gun around or even displayed her gun during the sale, she faces 7 years in prison.
If she discharged or fired the gun while she was selling drugs, she faces 10 years in prison.
Other Factors that Increase Prison Sentences
In addition, other factors can increase the federal prison sentence for gun convictions. If the seller carried a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, she faces 10 years in prison. If her firearm was equipped with a silencer or muffler, she faces 30 years in prison.
Three Strike Rule Increases Prison Sentence to 15 Years
If an individual has three prior convictions for violent felonies or drug trafficking crimes, the prison sentence increases to 15 years. See Section 924 (e)(1), which provides:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
Federal Gun Charges in Pennsylvania – Get Legal Help Now
Federal gun charge cases have been increasing in the last 2 years. As of September 2020, there’s been a stark increase in the number of defendants arrested and charged with federal gun crimes.
In federal gun/drug cases, federal prosecutors often threaten defendants with these mandatory prison sentences to induce a plea. That’s why it’s crucial to be able to defeat these charges with any legal arguments like constitutional violations, i.e., illegal searches or seizures.
Firm partner David S. Nenner has over 30 years of experience defending clients from federal and state gun and drug charges. He is a top rated criminal lawyer in Philadelphia and offers free consultations. (215) 564-0644
Title 18 U.S. Code Section 924(c)(1) (current as of March 20, 2019)
(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation of this subsection—
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or
(ii) is a machine gun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
(C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall—
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machine gun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.
(D) Notwithstanding any other provision of law—
(i) a court shall not place on probation any person convicted of a violation of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.
Many Philadelphia residents and out of town residents get pulled over in their cars while driving in Philadelphia and the surrounding counties, like Delaware County, Montgomery County or Chester County. Law enforcement including local police, state police or federal agents often search the car for evidence of drug use/dealing and evidence of other contraband like guns. Visit our Drugs/Guns Criminal Law page for more info.
Criminal cases accepted in Philadelphia, Delaware County, Chester County, Montgomery County & Scranton/Lackawanna County. FREE CONSULTATIONS (215) 564-0644
Consent searches are very common, i.e., an officer asks a driver for permission to search their vehicle during a traffic stop. Oftentimes, drivers comply and give consent. When given consent to search, an officer can search any part of the vehicle which could contain whatever item gave rise to the officer’s suspicion. For instance, an officer smells marijuana in the car and the driver consents to search. The officer is allowed to search any part of the car that could reasonably contain marijuana or related drug paraphernalia (like a pipe). However, the officer couldn’t search a small, flat envelope in the back seat because it obviously couldn’t contain marijuana or any item related to smoking marijuana. Read more about car searches and consent.
Consent searches during a routine traffic stop are very common. What happens when an officer conducts a routine traffic stop, tells the driver they are free to go, but then asks to search the car? A recent Pennsylvania Supreme Court ruling clarifies this very issue.
Consent to Search After Driver is Told They are Free to Go
Philadelphia criminal attorney David Nenner speaks with reporters. Nov. 29, 2017 *Photo credit – Philly.com
In the October 2018 case of In the Int. of A.A., the issue was whether the driver gave consent to search after the police officer told her that she was free to go.
In the case, the driver was pulled over for driving violation. The police officer witnessed a traffic violation and then ran the vehicle’s registration, which was expired. The police officer then stopped the vehicle. The driver was unable to produce car insurance info, so the officer began preparing a citation for the expired registration and a warning for the failure to provide car insurance info.
The officer stated he noticed the following during the initial stop: the driver seemed sluggish, there were furtive movements in the car, and the smell of marijuana in the car. Despite these facts, the officer issued the citation and warning and then told the driver she was free to go.
Before the driver left, the officer asked her if there was anything illegal in her car, and the driver told the officer he could search the car if he wanted. The driver then admitted that she had a marijuana pipe in the car and that she had smoked prior to driving. The officer asked the driver to step out of the car when he saw a green pill on the driver’s seat. At this point, the officer searched the car and found a marijuana pipe and a pill bottle. The driver was given a field sobriety test which she failed. She was arrested and charged with a DUI, Possession of a Controlled Substance, and other charges. She was found delinquent and appealed the search of the car.
In her appeal, she argued that after she was told she was free to go, the officer conducted a second seizure which required additional facts to support the belief that a crime had been committed. Here, the officer noticed the smell of marijuana and the driver’s sluggishness BEFORE he told her she was free to go. Therefore, when he re-engaged her after telling her she was free to go, he needed additional facts to support that second re-engagement (or second seizure).
The Pennsylvania Supreme Court disagreed and found that the officer’s observations of criminal activity (sluggish driver, furtive movements and smell of marijuana) during the entire event justified further engagement. Telling the driver she was free to go didn’t negate the observations and the officer was justified in asking if she had anything illegal in her car. Because she told the officer he could search her car, she consented to the search. The pill and pipe were therefore, legally seized based on the consent.
What the recent consent search case tells us is that officers can prolong a car/traffic stop if there’s evidence that shows criminal activity, like the smell of drugs or any acts of the driver that suggest impairment/DUI. This is true even if the officer tells the driver he or she is free to go.
If you were arrested after a car search and believe your constitutional rights were violated, contact our criminal defense law firm for a free case evaluation at (215) 564-0644. Firm founder David S. Nenner has over 30 years of experience in criminal law and is a top rated criminal lawyer.
In the past few years, there’s been an increase in the number of charges filed for overdose deaths throughout the Philadelphia area, including suburbs like Delaware County and Chester County.
In this criminal law article, we focus on the crime of Drug Delivery Resulting in Death, 18 Pa.C.S. § 2506. Visit our Philadelphia Criminal Law Library for more legal info.
Section 2506 of the Pennsylvania Crimes Code provides:
(a) Offense defined.–A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), 1 known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.
(1) A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.
(2) Paragraph (1) shall not apply to a person convicted under section 2502(c) (relating to murder) when the victim is less than 13 years of age and the conduct arises out of the same criminal act.
In Pennsylvania, the crime of Drug Delivery Resulting in Death requires proof of the following:
administering, dispensing, delivering, prescribing or otherwise providing a controlled substance (or a counterfeit substance) in violation of the Controlled Substance Act (section 13(a) 14 which applies to medical providers or section 13(a) 30 which applies to the general act of drug dealing; see below for the relevant sections)
that causes the death of another person.
An individual who is convicted of the crime of Drug Delivery Resulting in Death faces a maximum of 40 years in prison, assuming that’s the only offense. Oftentimes, this charge is one of many that will get filed in the same case, including Possession with Intent to Distribute, Illegal Gun Possession (VUFA), etc. Convictions on these other charges often result in an increased prison sentence.
Because the stakes are so high, these cases must be reviewed carefully for any suppression issues. Constitutional violations can result in critical evidence being thrown out (or suppressed), which often results in dismissal of charges. For example, a Philadelphia resident is facing a charge for Drug Delivery Resulting in Death. Police enter his home illegally and seize heroin that is tied to an overdose death. A successful motion to suppress the drug evidence would probably result in dismissal of the charge of Drug Delivery Resulting in Death.
Relevant Portions of the Controlled Substances, Drugs & Cosmetics Act, Current as of January 2019
The Controlled Substance Act, Section 13(a) 14: The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner or professional assistant under the practitioner’s direction and supervision unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.
The Controlled Substance Act, Section 13(a) 30: Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
Philadelphia Criminal Lawyers – FREE Consultation
For a free consultation with our highly rated criminal lawyers, call (215) 564-0644. Firm founder David Nenner has over 30 years of experience and is rated as a Top Criminal Lawyer in Philadelphia by Super Lawyers magazine.
Philadelphia is facing a record number of murders in 2018, the highest in over a decade. According to data provided by the Philadelphia Police Department, there were 351 homicides in 2018.
Here’s a comparison of Philadelphia’s homicide numbers from 2014 to 2018.
This chart shows a steady increase in the number of murders in Philadelphia over the past five years. From 2014 to 2018, there was an increase by over 100 in the number of murders in the city. That’s an increase of about 45% over a 5 year period. With the exception of 2016, the total number of homicides has increased each year. Already, 2019 is on track to keep up with the trend. So far in the first seven days of 2019, there have been 2 murders, whereas in the first week of 2018, there was 1.
While the number of homicides has increased, the number of most other violent crimes has decreased. The number of rapes, robberies and aggravated assaults has decreased overall from 2017 to 2018.
The number of homicides includes a variety of murder charges including First Degree Murder, Second Degree Murder (AKA: Felony Murder) and Manslaughter. These charges can result in life sentences, despite the recent election of a “progressive” District Attorney in Philadelphia. Visit our Philadelphia Murder Charge Law Library for legal info about murder charges in Philadelphia
Rise in Charges for Drug Delivery Resulting in Death
In addition, this number includes the crime of Drug Delivery Resulting in Death, a first degree felony. Given the extent of the opioid epidemic in the Philadelphia area, our criminal defense law firm has seen a marked increase in the number of charges for selling or delivering a controlled substance that results in death. These charges often result when an individual sells a controlled substance to an individual who then overdoses and dies. This charge is almost always filed with other serious felonies, which when added, can result in lengthy prison sentences.
Philadelphia Criminal Law Firm – Murder Charges
Our law firm represents Philadelphia residents who are facing murder, manslaughter and related charges. Call for a FREE case evaluation. (215) 564-0644
Firm founder David S. Nenner is a top rated criminal lawyer and is known for his trial skill. Several of his murder cases have been featured in local news:
Commonwealth v. Prince and Commonwealth v. Timmons Due to Attorney Nenner’s investigation and efforts in a murder case, his client Mr. Prince was freed after spending months in jail; North Philly man freed 17 months after false murder accusation by Mensah M. Dean, Philly.com (March 17, 2017); Co-defendant Timmons’ case was dismissed by the trial judge after Attorney Nenner’s mid-trial motion.
Commonwealth v. Speakes Attorney Nenner secured his client’s release on murder charges after videotape evidence showed the client’s innocence. http://articles.philly.com/2012-02-08/news/31038020_1_jury-videos-verdict
Under Pennsylvania criminal sentencing law, judges are required to determine:
1. an Offense Gravity Score which will determine sentencing,
2. the Prior Record Score (if any), and
3. the guideline sentence recommendation (considering deadly weapon or youth/school enhancements and aggravating or mitigating factors).
This applies to felonies and misdemeanors under Pennsylvania (state) law, not federal law. Read about sentencing for drug crimes under federal law. In the vast majority of criminal cases in Pennsylvania, the applicable sentence recommendations are in the Basic Sentencing Matrix, 204 PA Code Section 303.16. See below for the enumerated sections of the Pennsylvania Sentencing Guidelines.
If you or a loved one is facing drug possession or dealing charges in Pennsylvania, you’ll need to know what the potential sentence is. Unfortunately, the answer depends on factors such as how much of the illegal substance was possessed/seized, whether the individual has a prior record, whether a weapon was found with the seized items, etc.
The Offense Gravity Score (OGS) is set out for every enumerated offense in Pennsylvania, including gun possession and drug (possession and dealing) crimes. The score is a number which increases based on the severity of the crime and other factors like prior record. The focus of this criminal law article will be drug sentences.
It’s important to note that sentencing courts aren’t required to sentence within the guidelines. They can deviate from the guidelines as long as there is a valid reason which is stated and explained on the record. However, sentencing judges are required to correctly apply the guidelines. In other words, they must correctly determine the OGS in order to reach the proper sentence recommendation.
The Offense Gravity Score for Drug and Controlled Substance Crimes (Possession or Dealing)
One of the key scoring elements for purposes of the OGS is the weight of the controlled substance. The greater the weight, the higher the OGS. For example, possession with intent to deliver cocaine over 1,000 grams has an assigned OGS of 13, whereas possession with intent to deliver cocaine less than 2 grams, has an OGS of 5.
For purposes of the OGS for violations of Pennsylvania’s controlled substance law, including possession and dealing, the entire mixture containing the controlled substance will be counted. See Section 303.3 (e).
For example, a Philadelphia resident is arrested for possession of cocaine with intent to deliver. He was charged with possession of 3 bricks of cocaine weighing a total of 3 pounds (over 1,000 grams). The bricks were not pure cocaine. Rather, they contained a white powdery bulking agent designed to increase their weight. The bulking agent is boric acid, a perfectly legal household cleaning agent. Despite the fact that the bricks were not pure cocaine, the entire weight of over 1,000 grams means that the OGS for the offense will be 13. With an OGS of 13, the minimum range would be a 60-78 month prison sentence. Theoretically, this would be for a first time offender. If there’s a prior criminal record and/or aggravating factors, the range could be increased to 108-126 months.
Deadly Weapon Enhancement – Possession Versus Use
One of the most important factors that often comes into play in Philadelphia drug possession or dealing cases is whether the deadly weapon enhancement applies. In other words, did the individual possess or use a deadly weapon during commission of the crime.
For purposes of this sentencing enhancement, a deadly weapon can be a firearm (loaded or unloaded), a deadly weapon or some other weapon capable of causing serious bodily injury. If the enhancement applies, the individual’s potential sentence could be much greater, and by how much depends on whether a deadly weapon was possessed versus used during the crime.
Possessing a deadly weapon means having the weapon on the individual’s person (body) or within their immediate possession (i.e., in the car next to them or in their backpack).
Using a deadly weapon means engaging in conduct with the weapon that threatens or injures another person (i.e., waving or firing a gun).
Under the deadly weapon enhancement matrix for possession or use, the sentencing range increases from the basic sentencing guidelines. Use of a deadly weapon results in a higher sentencing range than possession of a deadly weapon.
Here’s an example:
Under the basic guidelines, a first time offense of possession with intent to deliver cocaine over 1,000 grams would have an OGS of 13 (with no prior convictions or other aggravating factors). The minimum sentencing range as indicated above would be 60-78 months in prison.
Under the matrix for possession and use of a deadly weapon, the minimum sentencing range increases from 60-78 months to 69-87 months (possession of a deadly weapon) or 78-96 months (use of a deadly weapon).
An experienced Philadelphia criminal lawyer will exhaust all complex and nuanced legal avenues for a successful outcome. This means filing motions to suppress or other complex legal motions or trial motions. These motions are often dispositive and can result in dismissal of certain charges. In murder cases, while a not guilty trial verdict is the best outcome, getting the charges reduced might be in the defendant/client’s best interest due to criminal histories, financial issues, etc.
Oftentimes, the success of suppression, pre-trial and trial motions depends on the judge who decides them. While judge shopping certainly isn’t allowed in any criminal cases, an experienced criminal lawyer in Philadelphia will know the odds of success depending on the judge who gets assigned to the matter. Some judges are known to be more lenient than others; some are more versed in complex criminal legal issues than others. Accordingly, issues must be presented and argued in the best light possible, depending on the judge. An experienced criminal lawyer will be better able to accomplish this than an out of state attorney or an attorney who hasn’t argued motions in front of the judges.
Hiding facts or details can negatively affect the success of a case. Oftentimes, people charged with a crime will hide facts due to embarrassment or just plain forgetfulness. For example, a Philadelphia man charged in a shooting death has an alibi – he was selling drugs. However he says nothing to his lawyer in order to avoid exposing himself to a drug investigation.
In order to present the best possible defenses in criminal cases like murder or homicide, a lawyer has to know everything about the case, what happened on the day of the incident and the defendant’s relationship with the victim.
Begin Your Own Investigation ASAP
In a murder case, one of the most important factors for success is getting an investigation started immediately. The reality is that law enforcement tends to investigate murder cases with tunnel vision. Once a suspect is identified, detectives will stop investigating the crime and instead zero in on the suspect. Witnesses, photos and even video evidence may be lost, when time is of the essence. That’s why it’s crucial for someone facing murder charges to get their own investigations started. This means hiring an investigator who will investigate the victim, eyewitnesses, other witnesses, etc.
From a criminal defense standpoint, murder suspects in Pennsylvania should ALWAYS exercise their right to remain silent. After all, police officers and detectives in murder cases are specially trained to interrogate suspects and get confessions, whether they are true or false.
Police interrogation tactics are almost always psychological, mental and emotional. It’s not uncommon for a detective who is interrogating a murder suspect to bring up the suspect’s family or parents, or a detective may discuss principles of respect and responsibility. Interrogators often try to appear like they are trying to help or protect the suspect, when the truth is that anything the suspect admits to will be used against them later.
In addition, interrogations in major cases, like murders or homicides, are geared to drag on. A suspect may spend hours being interrogated. So naturally, suspects get mentally and emotionally fatigued as time goes on. For the average person, such interrogations are overwhelming and frightening. For suspects with intellectual or mental disabilities, these interrogations are downright terrifying.
Pennsylvania Murder Suspects Should Remain Silent During Interrogations
Before a custodial interrogation begins, law enforcement is legally required to inform the suspect that they have constitutional rights to remain silent and to an attorney. Again, it’s crucial for a suspect to invoke their constitutional rights, for two main reasons.
First, there’s the risk of a false confession or the risk of confessing to other, unrelated crimes. It’s not uncommon for a murder suspect to confess to having committed other crimes in order to get out of the hot seat. For example, a Philadelphia resident is brought in for questioning in a major homicide case. Rather than invoke their right to remain silent, the individual speaks to detectives. He denies the murder, but after hours of questioning, he volunteers that he committed a robbery and where he’s hidden the gun used in the robbery. Assuming he’s innocent of murder, he will probably face robbery charges.
Second, there’s the risk that critical evidence will be found and seized as a result of admissions made during a confession. For example, a murder suspect is questioned about a shooting death. Rather than remain silent, she agrees to talk to detectives. Eventually, she admits to the crime and even tells officers where she hid the gun used in the shooting. Officers retrieve the gun, find her fingerprints on it, and match it to the bullets retrieved from the victim. All this evidence will be used against her to either get her to plead guilty or get a jury or judge to find her guilty after a trial.
The reality is that nothing a suspect admits to during an interrogation in a murder case is going to help their own case. Rather, it’s the opposite. Any criminal admissions made during an investigation will only help law enforcement conduct their investigation and ultimately get a conviction.
An Affirmative Statement is Required – Silence is NOT Enough
In order to invoke the right to remain silent, a suspect has to say something affirmative. And it’s got to be clear or unequivocal. Simply not talking or remaining silent isn’t enough. Rather, a suspect must say something that a reasonable person would understand to mean that they don’t want to speak to detectives. Saying “I don’t know if I should talk to you.” isn’t enough. On the other hand, saying “I am through talking to you.” or “I want a lawyer before I talk to you.” would be enough.
In a recent Pennsylvania Supreme Court case, Commonwealth v. Lukach (Oct. 2018), the court held in favor of the defendant on the issue of whether he had invoked his right to remain silent and as a result, whether the police officer’s subsequent questioning and recovery of evidence uncovered during the questioning were illegal.
During a murder investigation, defendant Lukach was identified as a possible suspect. He was arrested on two unrelated warrants. He was then read his Miranda rights and questioned about the murder by the chief of the local police department. Lukach initially denied involvement in the murder. Approximately 30 minutes later, the chief started discussing Lukach’s mother, at which point, Lukach stated, “Yeah. I don’t know just, I’m done talking. I don’t have nothing to talk about.” The chief continued questioning him and over the course of the next hour, Lukach confessed to the murders and also gave up the location of critical evidence tying him to the murder, the victim’s credit card and personal belongings.
The trial court granted Lukach’s motion to suppress his statement and any evidence obtained as a result of the interrogation. The prosecution appealed and lost. It appealed again to the PA Supreme Court which upheld the lower courts’ rulings.
Unreasonable searches and seizures are barred by US and Pennsylvania Constitutional law. In general, police officers have to get a warrant before conducting a search of an individual or their property (homes, cars, etc.). However, there are multiple exceptions to this warrant requirement law. In fact, there are so many exceptions that the warrant requirement is practically a farce. Some of the most common exceptions include the search incident to arrest exception or the consent to search exception.
Criminal cases accepted in Philadelphia, Delaware County, Chester County, Montgomery County & Scranton/Lackawanna County. FREE CONSULTATIONS (215) 564-0644
But what about when a police officer stops someone on the street? For example, a Philadelphia resident is walking to his friend’s home in West Philadelphia. Can an officer stop the individual and start asking questions about where they are going or what they have in their pockets? These types of stops are known as a stop and frisk.
Stop & Frisk Law – When an Officer Stops a Citizen on the Street
In Philadelphia, police officers frequently stop and frisk individuals, which is allowed so long as an officer has reasonable suspicion that criminal activity is afoot. This has been the law since the late 1960s, after the US Supreme Court case, Terry v. Ohio. Under the Terry case, a police officer is legally allowed to stop a person briefly without a warrant or probable cause, if the officer has a reasonable suspicion that the individual being stopped has engaged or is about to engage in criminal activity.
The stop and frisk doctrine isn’t necessarily an exception to the warrant requirement. It simply allows an officer to conduct limited pat down searches when an officer has a reasonable belief that the person being stopped is armed or dangerous. This applies to all stops by an officer in Pennsylvania, whether it’s for questioning a suspect or a witness.
The problem is that these types of stops, also known as “Terry” stops, disproportionately affect the African American community of Philadelphia. In fact, according to the PA ACLU, African Americans accounted for nearly 70% of stops from January to June 2018 when they only account for less than half of the population.