Nenner Law

Mar 112021
 

A Philadelphia court suppressed drug evidence obtained during a traffic stop. The officer testified that the car was pulled over due to a faulty tail light. Mr. Nenner presented evidence that the car was in perfect working condition. He called the owner of the car and presented maintenance documents, including a recent state inspection, to show that the “broken tail light” was merely a pretext to pull the car over. The judge agreed and suppressed the evidence. As a result, the prosecution withdrew the charges. 

Mar 112021
 

Commonwealth v S.T.

Mr. Nenner’s client was a Philadelphia area woman who was charged with Criminal Attempt-First Degree Murder, Aggravated Assault and other charges. Mr. Nenner presented a self-defense argument, and the jury returned a “not guilty” verdict after a 7 day trial.

Mar 112021
 

Commonwealth v. Prince and Commonwealth v. Timmons

Mr. Nenner represented co-defendants in a shooting death in North Philadelphia. Both cases were ultimately dismissed. The case was featured in a Philly.com article (http://www.philly.com/philly/news/Freed-after-17-months-college-grad.html, March 17, 2017).

Mar 112021
 

Commonwealth v Jabir Kennedy

Mr. Nenner’s client faced one count of first degree murder, three counts of attempted murder and various assault and gun charges. Mr. Nenner presented a self-defense argument, and the jury returned a NOT GUILTY verdict on all charges. The case was featured in a Philly.com article (https://www.philly.com/news/jabir-kennedy-self-defense-philadelphia-district-attorney-handgun-murder-homicide-court-20190328.html, March 28, 2019).

Mar 112021
 

Mr. Nenner’s client faced first degree felony sexual assault charges and was accused of raping his next door neighbor. The neighbors had a history of problems including an earlier incident which led to the accused’s wife filing a private criminal complaint against the alleged victim and her husband. The trial lasted one week and the jury found Mr. Nenner’s client NOT GUILTY of all charges including rape and sexual assault.

Oct 152020
 
Police officer patrol car

Federal and Pennsylvania state courts treat narcotics dog searches differently. So different that the same scenario could result in different outcomes in federal versus state court.

For example, a Philadelphia resident is pulled over for speeding. During the traffic stop, a narcotics officer arrives on the scene with a drug dog who sniffs the car and alerts the officers to drugs in the trunk. The officers search the trunk and find multiple pounds of marijuana. The driver is arrested and charged with drug dealing. The success of the individual’s motion to suppress the drug evidence found in the trunk depends on whether federal or state constitutional law applies, as well as whether the officers had reasonable suspicion (or consent) to conduct the dog search.

Drug cases accepted in Philadelphia, Delaware County, Chester County, Montgomery County & Scranton/Lackawanna County. FREE CONSULTATIONS (215) 564-0644

Under federal law, dog searches are not considered a search under the 4th Amendment in the U.S. Constitution. So, a dog sniff during a normal traffic stop is legal. However, in a recent U.S. Supreme Court case, Rodriguez v. U.S. (2015), the Court held that extending a traffic stop to call and wait for a narcotics dog requires at least reasonable suspicion of criminal activity. Read more about federal drug charges after traffic stops with narcotics dog searches.

Pennsylvania (State) Drug Charges After Dog Searches

When it comes to law enforcement use of narcotics dogs to conduct drug searches, Pennsylvania law differs significantly from federal law. Since the late 80’s, the Pennsylvania Supreme Court has ruled that dog sniffs are searches which trigger constitutional issues in the following scenarios:

  1. dog sniff of a storage locker
  2. dog sniff during a traffic stop
  3. dog sniff during a traffic stop where consent was given
  4. dog sniff of a person

Dog Sniff of a Storage Locker

In a 1987 case, Commonwealth v. Johnston, the Pennsylvania Supreme Court held that the canine search there (outside a storage locker) constituted a search under constitutional law. The court held that dog searches are only allowed under state law if the police, at a minimum, have reasonable suspicion to believe that drugs are present in the area being sniffed by the dog. The court realized that dog sniffs are distinct from searches conducted by human officers. Dogs can obviously sniff drugs that the human nose cannot.

Dog Sniff During a Traffic Stop

The Johnston case involved a dog sniff of a storage locker. What about dog sniffs during traffic stops? In PA state court cases, the same principle applies to all physical locations. Police officers must have, at a minimum, reasonable suspicion that drugs will be found in the area being sniffed by the dog. See Comm. v. Rogers (2004), where the PA Supreme Court upheld the lower court’s finding that a dog sniff of a car during a traffic stop was allowed so long as the officer had reasonable suspicion of criminal activity.

Dog Sniff During a Traffic Stop Where Driver Consents to Search

In a 2018 PA Supreme Court case, the court held that during a traffic stop, a driver who consents to search of their vehicle does not automatically consent to a canine search that’s conducted 40 minutes later. See Comm. v Valdivia. However, the court noted that if the officer informed the individual, before they gave consent, that a narcotics dog would be arriving, and the driver still consented, the consent would be valid.   

Dog Sniff of a Person

In Comm. v. Martin (1993), the PA Supreme Court held that a canine sniff of a person requires not just reasonable suspicion, but a higher burden, probable cause, “the police must have probable cause to believe that a canine search of a person will produce contraband or evidence of a crime.” The Martin court found that a dog sniff of a person is much more invasive than a dog sniff of a location or thing (like a car), both of which only require a showing of reasonable suspicion.

Facing Drug Charges After a Dog Search?

If you are facing drug possession or drug dealing charges after a dog search, contact our Philadelphia criminal law firm for a FREE consultation. David Nenner has over 30 years of experience representing clients in major felony cases including drug and gun cases. 215-564-0644

Oct 062020
 

Dog or canine searches of cars during traffic stops in PA often lead to drug possession/dealing charges and gun charges.

For example, a police officer pulls over a driver for speeding. During the traffic stop, a canine search is performed revealing several bags of heroin. The individual is arrested and charged with federal charges, drug dealing (possession with intent to distribute). Can the individual fight the charges based on an illegal canine search of their car?

Criminal cases accepted in Philadelphia, Delaware County, Chester County, Montgomery County & Scranton/Lackawanna County. FREE CONSULTATIONS (215) 564-0644

In federal criminal cases involving a traffic stop, whether the officer was legally allowed to conduct a canine search depends on two main questions. First, did the officer extend the time of the stop? Second, was there reasonable suspicion (or probable cause) to extend the time of the stop and thus allow for the dog search?

It’s important to note that federal law differs from Pennsylvania (state) law when it comes to dog searches. PA state law is far better for defendants because PA law views dog sniffs as searches, whereas federal law does not. Read more about PA (state) law on dog searches.

officer arrest miranda

Did the Officer Extend the Time to Give a Ticket for the Traffic Violation?

Officers are clearly NOT allowed to extend the duration of a traffic stop for no reason. There’s no set time table for a traffic stop, but federal and state law is clear that an officer must issue a ticket within a reasonable timeframe. What is “reasonable” depends on the circumstances, including factors such as:

  • time of day,
  • weather, visibility,
  • type/extent of traffic violation (speeding 5 miles versus 25 miles over the limit), and
  • neighborhood.

If the officer did NOT extend the duration of the traffic stop, then Illinois v. Caballes, a 2005 U.S. Supreme Court case controls. Under the Caballes case, a dog search is legal if it is conducted DURING a lawful traffic stop, and within the reasonable duration of the traffic stop.  

In the case, a state trooper stopped Caballes on a highway for speeding. While the trooper reported the stop to dispatch, a canine officer heard the transmission and arrived at the location. While the initial trooper conducted a check on Caballes’ license and was issuing a ticket, the canine officer walked his dog around Caballes’ car. The dog alerted officers to the trunk where they found nearly 300 pounds of marijuana. The trial court denied Caballes’ motion to suppress the drug evidence, and the appeals court agreed. However, the state supreme court reversed, finding that the trooper acted illegally. The U.S. Supreme Court reversed the state supreme court and held that since the troopers hadn’t extended the duration of the stop, the dog search was legal.

If the officer DID EXTEND the duration of the traffic stop, then Rodriguez v. U.S., a 2015 U.S. Supreme Court case controls. Under this case, an officer is allowed to extend the time for a traffic stop and conduct a dog search only if there’s reasonable suspicion of criminal activity (or probable cause to believe a crime was or is about to be committed) to prolong the traffic stop in the first place.

The Rodriguez case involved a traffic stop for swerving out of a lane. When the officer approached the stopped car, he smelled a strong smell of air-fresheners. The officer questioned the driver and a passenger, called for backup and conducted a records’ check on the passenger. About 7-8 minutes after the officer gave a ticket to the driver, he walked his dog around the car. The dog alerted the officer to the presence of drugs, and the officer searched the car, discovering meth. The driver was charged with possession with intent to distribute. After Rodriguez lost at the state court level, he appealed to the U.S. Supreme Court. The Court held that extending the stop after giving the ticket to the driver and conducting the dog search required an independent basis, i.e., reasonable suspicion.

Facing Criminal Charges After a Dog Search of Your Car?

If you are facing criminal charges after a police canine sniffed your car during a traffic stop, you may be able to fight the charges and file a motion to suppress the evidence seized from the car. If the motion is successful, some or all of the charges may be dismissed. Visit our Drug & Gun Possession Law Library for more info.

Related Posts:

Pennsylvania Criminal Law: Passenger’s Legal Rights During Traffic Stops in Philadelphia (February 26, 2020) Do passengers have legal rights during traffic stops? When is an officer allowed to order a passenger to exit a car, or search a passenger’s personal items?

Defenses to Philadelphia Drug Charges – By a Philadelphia Criminal Defense Lawyer There are multiple defenses to drug charges in Philadelphia including motions to suppress or personal use (in drug delivery cases).

Sep 172020
 

On December 21, 2018, federal sentencing laws for drug cases were amended significantly. The First Step Act removed the mandatory life sentence for 3 time drug offenders in high quantity drug dealing cases and also reduced the mandatory minimum sentences for 2nd offenses.

Also, the First Step Act also made the Fair Sentencing Act of 2010 retroactive, meaning that defendants who were sentenced prior to 2010 for certain drug offenses could seek resentencing under the Fair Sentencing Act, which reduced the penalties for certain cocaine-related offenses. It increased the amount of cocaine base needed to trigger the mandatory sentences from 5 grams to 28 grams.

Example: In 2009, a Philadelphia resident was convicted of possession with intent to distribute 5 grams of crack cocaine. Under the federal drug sentencing law in effect at the time, the individual was sentenced to a mandatory minimum of 10 years because the conviction was his second felony drug offense. Because of the First Step Act, this individual filed a motion for resentencing under the Fair Sentencing Act which allowed him to be released.  

Drug cases accepted in Philadelphia, Delaware County, Chester County, Montgomery County & Scranton/Lackawanna County. FREE CONSULTATIONS (215) 564-0644

First Step Act – Mandatory Minimum Prison Sentences

Section 841(b) – Federal Drug Dealing Sentencing Law in High Quantity Cases

Under the former sentencing law which applied to high quantity drug dealing cases (i.e., 5 kg of cocaine, 1 kg of heroin, 280 grams of crack, etc.):

  • a first offense resulted in a mandatory 10 year prison sentence (or 20 years in cases where death or serious injury occurs due to the substance use),
  • a second offense resulted in a mandatory 20 year prison sentence, and
  • a third offense triggered a mandatory LIFE sentence.

Now, for high quantity drug dealing cases,

  • the mandatory minimum for a first offense is the same,
  • now, the mandatory minimum for a second offense is 15 years, and
  • now, the mandatory minimum for a third offense is 25 years.

Related: Federal Sentences for Drug Dealing Convictions in Philadelphia [The mandatory minimum sentence for a federal drug dealing conviction depends on the quantity of drugs manufactured or sold and whether the individual has prior felony drug convictions. Prior to December 2018, 3rd offenses received a mandatory life sentence.]

What Kind of Prior Drug Offense Triggers the Increased Sentences?

In the previous version of Section 841 (b), any prior “felony drug offense” triggered the increased sentences. Under state and federal law, a felony is a crime punishable by over a year in prison.  Just because you’re convicted of a felony doesn’t mean that you actually serve over a year in prison. The First Step Act took this into account and amended Section 841 so that only a “serious drug felony” or a “serious violent felony” triggers the increased sentences. Under the First Step Act’s amendments, a serious drug felony is one where a defendant actually served a prison sentence of more than 12 months.

This distinction, although small, has significant ramifications for Philadelphia residents facing drug dealing charges in federal court. For example, a Philadelphia resident has a single prior conviction for possession (not drug dealing) of a large quantity of drugs. The resident is arrested by federal agents and charged with possession with intent to distribute 1 kg of heroin. If the resident is convicted of the new offense, the new 15 year mandatory minimum prison sentence won’t apply.

Get More Criminal Law Info:

Traffic Stops – When Can Police Stop a Car in Philadelphia? [Drug charges are often filed after police seize drug evidence from a car during a “routine” traffic stop. Learn about state and federal law and the constitutional protections that apply to searches of cars.]

Drug Charges in Philadelphia – Motions to Suppress Evidence [Motions to Suppress Evidence are pretty common in drug and gun possession cases. Did law enforcement violate the individual’s constitutional rights in any way? If so, evidence seized as a result of the violation may be suppressed, or thrown out of the case. If this occurs, the case or some of the charges may be dismissed.]

Jul 202020
 

Shootings and gun cases in Philadelphia have risen sharply in 2020. Here’s a look at some of the most recent data provided by the Philadelphia Police Department:

  • From July 12, 2019 to July 12, 2020, there’s been a 55% increase in the number of shootings. (1018 versus 1578 shootings)
  • During the same period, there’s been a 31% increase in the number of shooting victims. (720 versus 946 shooting victims)
  • During the same period, there’s been a 24% increase in the number of aggravated assaults with gun. (1312 versus 1625 agg. assaults)

In addition, Philadelphia is on track for a record number of homicides in 2020. According to data from the Philadelphia Police Department, there have been 221 homicides as of July 13, 2020, compared to 176 homicides by July 13, 2020. The jump in the number of homicides (45) represents a 26% increase.

Criminal cases accepted in Philadelphia, Delaware, Chester, Lackawanna & Montgomery Counties. FREE CONSULTATIONS (215) 564-0644

With the sharp increase in violent crimes, the Philly Police Department is stretched thin, and very likely falling behind. Also, with recent citywide protests, law enforcement would certainly fall further behind.

When pressure mounts due to increases in violent crimes and lack of resources, mistakes are often made during investigations. These mistakes can lead to illegal police conduct, like an unconstitutional search or seizure/arrest.

In some cases, especially murder cases, police investigations may result in mistaken identity or a false confession. It’s critical for suspects and defendants to prepare the best defenses, including raising any legal issues like an illegal arrest or search.

Search & Seizure Law Articles

Pennsylvania Criminal Law – Running or Walking Away from Police When an officer approaches a person on the street or sidewalk, can the person ignore the officer and walk or run away? Under PA constitutional law, the answer is yes. But, an officer can chase and stop the person if the officer has reasonable suspicion of criminal activity; the act of walking or running away doesn’t qualify as reasonable suspicion.

Car Searches in Philadelphia Drug/Gun Cases – Legal Rights of the Accused Traffic stops often result in searches and arrests for drug or gun charges. During a traffic stop, a driver, passenger and anything inside the car may be searched only if the officer has probable cause to believe that a crime has been committed.

Search & Seizure of Drugs or Guns in Pennsylvania Criminal Cases – Exceptions to the Warrant Requirement Under state and federal constitutional law, warrants are required for an arrest or search of a home, personal items, etc. However, there are so many exceptions to the warrant requirement, that the warrant rule is basically nonexistent.

May 222020
 

There’s no way to answer this question without knowing more facts about what police observed prior to chasing your son, where and when the case started, etc. The legal info below is general information and is no substitute for legal advice. Call our Philadelphia criminal law office for a free consultation. (215) 564-0644

Police Chasing Individuals on the Street in PA – Is it Legal?

Many drug possession and gun arrests start with police chasing an individual on the street. A police officer on routine patrol may see a person on the street walk away quickly as the officer approaches. Is the officer allowed to get out of the patrol car and chase after the person?  

In Philadelphia, if police violate constitutional rights of the accused, courts may suppress critical evidence, like the actual drugs or guns that were recovered due to the search or arrest. Without this evidence, prosecutors often agree to dismiss the charges, or at the very least, offer plea deals on lesser charges.  

Get more info, visit our Philadelphia Criminal Law Library.

Are Police Allowed to Chase Someone Who is Running or Walking Away?

The answer depends on the situation. Pennsylvania courts have held that people are free to walk away from and even run away from police on the street. There are only three occasions when police can chase someone who walks or runs away from them on the street.

  1. Police approach someone who runs/walks away in a high crime area.
  2. Police have reasonable suspicion of criminal activity involving the person who runs/walks away.
  3. Police have probable cause to make an arrest of the person who runs/walks away.

More: Pennsylvania Criminal Law – Running or Walking Away from Police 

Walking or Running Way in a High Crime Area

If an individual who is in a high crime area walks or runs away when an officer approaches on foot or in a patrol car, courts will side with the police. The U.S. Supreme Court and Pennsylvania courts have held that police have the legal authority to chase individuals who flee from police IF AND ONLY IF this happens in a high crime area. Officers are NOT allowed to chase individuals who flee in other areas, unless 2 or 3 above applies.

So, if an officer chases someone who walks away, and then arrests that person for dropping contraband, a court is likely to find that the chase was illegal and therefore the recovered contraband was obtained illegally and must therefore be suppressed from the case.  

Reasonable Suspicion or Probable Cause to Chase

If, before the chase starts, an officer has reasonable suspicion or probable cause to chase the person, the chase would be legal.

Reasonable suspicion is a reasonable belief that criminal activity might be occurring and therefore investigation is necessary. Reasonable suspicion must be based on facts. An officer’s vague hunch is not enough to justify reasonable suspicion.

Probable cause is a reasonable belief, based on clear facts, that the individual has committed or is about to commit a crime.