Philadelphia Criminal Law Blog

When "Free to Go" Doesn't Really Mean You are Free to Go

amuso@amusolaw.com (Peter Amuso) — Sun, 17 Aug 2008 20:53:53 -0500

What happens when a police officer tells you that you are free to go? What happens when a state trooper asks to search your car, but tells you that you are allowed to refuse permission for the search?

While it is difficult not to be nervous in such circumstances, remember that you are indeed free to go, and that you can actually refuse permission for the search without fear of additional repercussions. If you want to go, you should go. If you don't want the police to search your car, then don't give them permission.

The Pennsylvania Superior Court (the high court to which criminal convictions and decisions at the county level are appealed) recently issued an opinion affirming a trial court's decision throwing out evidence found when police officers stopped a motorist. In Commonwealth v. Moyer, the evidence was thrown out because, even though the police officer told Mr. Moyer he was free to go, the police officer's subsequent actions showed that Mr. Moyer was, in fact, not free to go:

Trooper Hertzog was standing beside Officer Mays at the rear of the car, and both were armed. At that point, [Mr. Moyer] was instructed that he was free to leave, but as [Mr. Moyer] reached the driver's door of his vehicle, Officer Mays called "his name out" and "asked if he mind[ed]" if the officer asked him a few questions. Officer Mays did not inform [Mr. Moyer] that he did not have to answer the questions.

Page 3 of the Court's decision.

Mr. Moyer] reasonably believed he was not free to disregard the police officer's request to answer questions and depart.

Page 18 of the Court's decision.

Certainly, if a police officer has good reason to believe that you committed a crime, or that your car contains evidence of a crime, he or she is entitled to arrest you or to seek a search warrant from a judge. But feel free to go if the trooper tells you that you are free to go.

Another Commonwealth Court decision, and Another Way to Keep Your License

amuso@amusolaw.com (Peter Amuso) — Mon, 28 Jul 2008 18:39:23 -0500

This past Thursday, I was waiting for the elevator at the Criminal Justice Center, on my way to speak to my fellow Harvard alums about my recent run for Montgomery County District Attorney at the annual meeting of the Harvard Law School Association of Philadelphia. As usual, there was a long wait, and as usual, I started scrolling through my e-mails on my iPhone. Someone e-mailed me a new Commonwealth Court decision called Yourick vs. Bureau of Driver Licensing, and as I read it, I dropped my iPhone and missed the elevator: the Court had overturned PennDOT's decision to suspend someone's driver's license again, this time because the warning sheet issued by PennDOT was confusing.

As I have written before, if a police officer suspects that you have been driving under the influence of alcohol or drugs, he can ask you to submit to a chemical (blood or breath) test. If you refuse, PennDOT automatically suspends your drivier's license for 1 year. You can delay the suspension by demanding a hearing in front of a judge, but the judge has only narrow grounds to prevent PennDOT from suspending your license. My conclusion in such a situation remains the same: DON'T REFUSE. SUBMIT TO THE TEST. It is easier to fight the test results in criminal court then it is to fight a refusal in civil court against PennDOT.

Nonetheless, the Yourick decision opens yet another possibility to keep your license after you refuse a chemical test. The Court ruled that the December 2006 version of the PennDOT warnings were confusing because they were unclear on whether you would lose your license if this was your first DUI offense. (You will lose your license for 1 year, even if it is your first refusal.) Ms. Yourick testified specifically that she read the warning sheet carefully, and decided to refuse the chemical test because it had been her first arrest for DUI. The Court ruled that the form was confusing and therefore did not provide the required warnings. The Court upheld the lower court's decision to let Ms. Yourick keep her license despite her refusal.

Like the other recent Commonwealth Court decision, this is narrow grounds for a successful appeal (the latest version of the form appears to have corrected this grammtical issue), and does not change my call to consent to the test. Again, though, it shows that attention to detail (even punctuation on a government form) lays the foundation for success.

I've Just Been Arrested: What Happens Next?

amuso@amusolaw.com (Peter Amuso) — Tue, 22 Jul 2008 02:06:57 -0500

You were out late. Something happened. You've been arrested. What happens next?

In future posts I will cover this process in more detail (particularly to note the differences between Philadelphia and the counties, and between each county) here is a quick, simple roadmap of the Pennsylvania criminal justice process:

1. Arrest: the police see you commit a crime and they apprehend you.

2. Preliminary Arraignment (24 hours after arrest): within 24 hours (and usually much sooner) the police take you in front of a local judicial officer. In the counties, this is a Magisterial District judge (descendent of the old justices of the peace), and you appear in front of him or her in person. In Philadelphia, the police take you to a room with a video screen where you see a Bail Commissioner sitting in the basement of the Criminal Justice Center. Either way, the person presiding informs you of the charges against you, and sets bail. You will get a copy of the criminal complaint filed against you by the police, which includes a statement (the "affidavit of probable cause") that gives the police officer's version of events. Typically, the lawyers (if they are there) do very little: you do not enter a plea, nor is evidence heard. Unless you are facing very serious charges, or cannot afford to post bail (usually a cash payment of 10% of the bail is required), you will be released at this time with a written notice of your next hearing.

3. Preliminary Hearing (10 days after arrest): Here's where your lawyer gets involved. The preliminary hearing is usually scheduled for 10 days after your Preliminary Arraignment, although it can be held later, and can usually be postponed once by your lawyer if necessary. At the Preliminary Hearing, the government (called the "Commonwealth" in Pennsylvania), has to show the Municipal Judge (or a Magisterial District Judge in the counties) that there is enough evidence to establish "probable cause" that you did what the police say you did. Your lawyer will typically not put on any witnesses or provide any evidence, but he will cross-examine the Commonwealth's witnesses (typically the arresting police officer and one or two witnesses to what happened.) The judge decides if there is enough evidence to hold your case over for trial. If there is not, he dismisses the case (although the Commonwealth could re-arrest you once it gets additional evidence.) If there is enough evidence, you are given written notice of your next hearing.

4. Arraignment (60 days after arrest): Here is where you appear in front of a state trial judge (a judge of the Court of Common Pleas), and enter a plea of guilty or not guilty, although typically, the plea of not guilty is entered at this stage, as the plea can be changed later in the process. If you have not already received it, you will get a copy of the "information"- the formal charges on which you will stand trial. Typically, a timetable is set for preparation for trial (the investigation process called "discovery").

5. Trial (6 months to a year or more after arrest): The different procedures by which Philadelphia and the counties get a case ready for trial are too many to go into detail in this post. Suffice it to say that your trial will typically occur anywhere from a few months after your arraignment to a year.

6. Sentencing (immediately after trial or 30 to 60 days later): If you are convicted, depending on the charges and the judge, you may be sentenced right away, or the judge may order a pre-sentence report that will detail your background and criminal history.

7. Appeal (30 days after final order): Your have 30 days from the final court order in your case to file an appeal.

At any point along here, a deal can be struck with the prosecution for a guilty plea, or the prosecution can withdraw the matter. The facts of any particular case can make the process go slower or go faster, but these are the basic seven steps in a Pennsylvania criminal trial.

One Way You May be Able to Keep Your License After All

amuso@amusolaw.com (Peter Amuso) — Tue, 22 Jul 2008 01:35:48 -0500

In my last post, I wrote that once you refused to take a chemical test to determine your blood alcohol level, PennDOT would suspend your driver's license for one year. I did note that you would be entitled to a hearing in front of a judge before PennDOT could take your license, but that the judge would have only very narrow grounds to prevent PennDOT from doing so.

One of those narrows grounds, however, was recently re-affirmed by the Commonwealth Court. (This is the appeals court that hears only civil cases involving governmental entities. PennDOT license suspensions end up here since PennDOT is a government agency.) The case is called Taylor v. Bureau of Driver Licensing, and it overturned PennDOT's decision to suspend Mr. Taylor's license after Mr. Taylor refused to take a chemical test.

The Commonwealth Court allowed Mr. Taylor to keep his license based on a little-known Pennsylvania law called the Municipal Police Jurisdiction Act. Under this Act, police from one township or borough have limited authority in other townships or boroughs. (They can still arrest someone in another township if they are in hot pursuit, however, so you can't escape the police by outrunning them to the township line.)

Here, Mr. Taylor was arrested in Upper Darby Township by a police officer from Nether Providence Township. The Nether Providence officer had been invited to staff the Upper Darby DUI checkpoint by a police officer from Brookhaven Borough. There was no evidence of any connection between the Upper Darby police and this particular Nether Providence officer. Because the prosecution failed to establish that the Nether Providence officer had the proper authority to make the arrest of Mr. Taylor in Upper Darby, Mr. Taylor got to keep his driver's license.

The factual circumstances of the Taylor case are not common, but this situation does happen. More importantly, though, this case is just another example of how the best defenses are often found in the smallest details, and thus attention to detail is key to establishing the best possible criminal defense.

Don't Refuse the DUI Blood Test (or the Breathalyzer)

amuso@amusolaw.com (Peter Amuso) — Thu, 17 Jul 2008 15:58:04 -0500

The scenario plays out time and time again every weekend across Pennsylvania: the police pull over a driver, have the driver conduct some field sobriety tests and then blow into a hand-held breathalyzer. When all this has been completed, the police officer requests that the driver submit to a blood test at a local hospital to determine his blood-alcohol level. The driver freezes and thinks to himself, "Should I co-operate? They just told me I blew above the legal limit- why should I agree to give the police even more evidence against me? What will happen if I refuse?"

Unfortunately, the Pennsylvania courts have ruled that you don't have the right to talk to attorney before deciding whether or not to consent to the DUI blood test. (Although the Pennsylvania Supreme Court recently agreed to consider whether or not you should have that right.) So let me offer some advice now for you to file away for that difficult moment: CONSENT TO THE BLOOD TEST. DON'T REFUSE.

If you refuse to take the blood test, you will lose your license for one year. Period. End of story.

Under Pennsylvania law, when each of us accepts our drivers license from the Commonwealth, we are consenting to a blood test requested by a police officer who believes we have been driving under the influence of drugs or alcohol. We have the right to withdraw that consent, and to refuse that test, but then PennDOT can simply take back the driver's license it issued to us based on our promised consent. This is not a criminal punishment, but merely a civil action. You are entitled to a hearing in front of a judge, but the grounds on which the judge can deny PennDOT's request to suspend your license are extremely narrow.

On the other hand, if you agree to the blood test, then your license will not be suspended until after you are convicted in a criminal hearing. It is possible to get the results of the blood test thrown out of court if the police did not follow the proper procedures, regardless of how high the blood test results are. Thus you are much, much better off consenting to a DUI blood test. (This same analysis applies if the police request that you to submit to a sophisticated breathalyzer test- these machines are carefully calibrated, and must be operated by trained technicians, and are very different from the hand-held devices police in the field use.)

The truth is that the results of the hand-held breathalyzer are not admissible evidence in court, but if you refuse to give the police evidence that can stand up in court- blood tests or sophisticated breathalyzers- you will lose your license automatically for one year. Consent to the tests, and keep your license while your lawyer fights against your criminal conviction.

Veterans Court: An Idea Whose Time has Come

amuso@amusolaw.com (Peter Amuso) — Thu, 17 Jul 2008 03:50:33 -0500

My first trial was an Army Court-Martial I prosecuted in Germany at V Corps Headquarters. Later, I participated in the first Court-Martial in Kosovo, as a criminal defense attorney attached to the 1st Armored Division. Now I am an active member of my local VFW Post, so the recent coverage of the nation's first Veterans Court, up in Buffalo, caught my attention.

Judge Robert Russell noticed the large and ever increasing numbers of Iraq and Afghanistan veterans in Buffalo's criminal justice system. Working with veterans advocates and mental health experts, he created a Veterans Court. In this Court, Judge Russell can make sure that military veterans who commit crimes can get the mental health treatment they need and the veterans benefits they deserve. Instead of spiraling inexorably from depression to drug use to drug selling to violent crime, a veteran can get the help needed to stabilize his or her life. Buffalo is safer as one less repeat offender exists on its streets.

If the purpose of the criminal justice system as a whole is not to make our community a safer place, then I am not sure what all of us are doing in it. Certainly, judges, lawyers, and police do not work day and night simply to process files.

Study after study show that specialized courts like Buffalo's Veterans Court, where defendants are required to follow rigorous treatment plans in exchange for avoiding a conviction and jail, reduce substantially the likelihood that someone will commit another crime. In Philadelphia, District Attorney Lynne Abraham and Municipal Court President Judge Louis Presenza understand this, and have created Drug Court, DUI Court, and Gun Court, to name a few. Judges in the suburban counties around Philadelphia have spearheaded the establishments of Drug Courts and, more recently, Mental Health Courts.

Certainly, there are enough veterans in Philadelphia and the surrounding counties to justify the establishment of Veterans Courts. Let's hope the leaders in our area are watching Buffalo's experiment closely.

You Can Tell a Lot from a Courtroom Number

amuso@amusolaw.com (Peter Amuso) — Thu, 17 Jul 2008 01:41:04 -0500

The Philadelphia criminal justice system has two components: the Municipal Court and the Court of Common Pleas. The simplified version of this structure is that the Municipal Court is the lower of the two courts, and handles misdemeanor cases, while the Court of Common Pleas is the higher court, and handles the more serious felony matters.

To make things a little more complicated, the Municipal Court conducts the preliminary hearings for all felonies, before the actual trials in those matters are held at a later date in the Court of Common Pleas. As an organizational matter, the Municipal Court conducts these preliminary hearings in courtrooms both in the Criminal Justice Center in Center City (the "CJC" in court lingo) and at various police district headquarters throughout Philadelphia. Conversely, for the misdemeanor matters the Municipal Court controls, it conducts a brief status conference in CJC Courtroom 404 before setting a date for the trial.

Thus, by looking at the courtroom number on the piece of paper you got in the mail ordering you to appear in court, you can tell how serious the charges against you are:

If you have been ordered to appear in CJC 404, you know you are not being charged with a felony.

Conversely, if you are being ordered to appear for a hearing at the 8th Police District Headquarters in the Northeast (or any other courtroom other than CJC 404) you know that you are facing at least one felony charge.

How to Bail Your Child Out of Jail in Philadelphia

amuso@amusolaw.com (Peter Amuso) — Wed, 16 Jul 2008 15:45:11 -0500

Usually the phone call comes in very early in the morning or very late at night: "My son (or daughter or nephew or niece) was down on South Street (or Columbus Boulevard or Main Street in Manayunk) and there was a fight, he or she was picked up by the police, and now he (or she) is in jail. How can I get him (or her) out?"

The short answer is that it is a two step process. First, you go to the basement of the Criminal Justice Center in Center City with sufficient cash to post bail for your loved one. If you have an attorney, he or she will meet you there. Second, after a brief hearing is held, and bail is posted, you travel to the particular police district headquarters where he or she is being held, and your loved one will be released to you.

The Criminal Justice Center (or "CJC" in court lingo) is catty-corner from Philadelphia City Hall, and next to the Masonic Temple, at the corner of Filbert and 13th Streets. It is a modern, pink sandstone building completed in 1995, and there is a large (and expensive) parking garage next door. It is in the basement of the CJC that the Preliminary Arraignment Court operates 24 hours a day, 365 days a year. Your loved one will usually have his or her Preliminary Arraignment between 16 and 24 hours after arrest, although your lawyer will be able to give you a more precise answer. The Preliminary Arraignment is where the defendant is formally informed of the charges against him or her, and when bail is set. No plea is entered, no evidence is heard. A Bail Commissioner, not a judge, is the presiding judicial officer. In fact, your loved one is not even present in the courtroom, but rather participates via close-circuit television from the police district where he or she is being held.

Unless he or she is charged with murder, your son or daughter has the right to bail. The amount of bail, and the conditions of release, are determined by the Bail Commissioner. These determinations are based on the seriousness of the charges, your loved one's criminal history, his or her ties to the community, and record of attendance at previous court hearings, if any. If your loved one has not retained an attorney, the public defender assigned to the Preliminary Arraignment Court will make these arguments for him or her. The Bail Commissioner's decision can be appealed immediately to a Municipal Court judge.

Typically, bail is set at a certain dollar amount, and 10% of that amount must be paid in cash before the defendant can be released. You pay that cash amount at the cashier's office, also located in the CJC basement. Once you post bail, you can go to the police district where your child (or nephew or niece) is being held, and they will be released to you.

Depending on the nature of the charges, the next hearing will take place in 3 to 10 days for more serious cases, and in 20 days for less serious cases. This is the time to call a lawyer, if you have not already done so, or to contact the Public Defender's Office.

But for now, your loved one is safe at home with you.