MTS & Constructive Possession
Motion to Suppress & Constructive Possession
Motion to Suppress
To win a motion to suppress physical evidence, you must demonstrate to the court that the manner in which the police obtained the evidence (i.e., a weapon or narcotics) was by violating your rights under the Pennsylvania or Federal constitution. If successful, the Exclusionary Rule will apply, and the evidence is omitted at trial.
In the context of firearms possession in Philadelphia, the Pennsylvania Supreme Court (SCOPA), in a May 2019 decision, rendered an opinion in the matter of Commonwealth v. Michael Hicks. The defendant was observed by a remote camera operator at a convenience store showing a handgun to another individual. The police were called to the scene and blocked Hicks’ car from leaving the convenience store parking lot. Although Hicks possessed a valid license to carry a concealed weapon (18 Pa.C.S.A. 6109), police made observations of intoxication and arrested him for driving under the influence. He was not charged with any firearms offenses. Our Supreme Court determined the officers violated Hicks’ right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution. This overturned the case of Commonwealth v. Robinson, decided in 1991. The Court ruled that the police were not permitted to stop Hicks just to confirm if he possessed a valid license to carry a concealed firearm. Pursuant to the Exclusionary Rule, all evidence concerning intoxication was thrown out, due to the initial illegality of the unconstitutional seizure of Hicks and his vehicle. This case is also illustrative of the prevalence of cameras in public.
The Pennsylvania Supreme Court (SCOPA), in November 2019, also decided an important Fifth Amendment matter, as it relates to computer passwords and other digital devices. In the matter of Commonwealth v. Joseph Davis, the Court ruled that requiring an accused to divulge the password to a computer (compelled decryption) is “testimonial” in nature, thus requiring the defendant to reveal thoughts inside his mind. Compelled decryption, as explained in Davis’s brief, violates the Fifth Amendment right against self-incrimination. In so ruling, the Court rejected the Commonwealth’s argument that the password itself was a “Foregone Conclusion” under the United States Supreme Court (SCOTUS) decision in Fisher v. United States. Many states are divided on this issue. More litigation is sure to follow.
Sufficiency of Evidence
If the evidence is otherwise admissible, you must analyze the facts to see if the Commonwealth or United States Government can prove you actually possessed the illegal item (i.e., weapon or drugs). This is generally referred to as a challenge to the sufficiency of the evidence.
An example of a case challenging the government’s ability to present sufficient evidence is the April 2019 U.S. Court of Appeals for the Third Circuit decision in United States v. Anthony Rowe. The government charged Rowe with Possession with Intent to Distribute 1000g, or more, of heroin under 21 U.S.C. §841. At trial, Rowe admitted to the underlying offense of distributing narcotics, but maintained he never possessed at least 1000g at any particular moment. The Court found that although Rowe made several distributions of heroin that added up to more than 1000g during the period of the indictment, he never distributed a kilogram, or more, in any single instance. Therefore, the mandatory minimum sentence, pursuant to 841(a)(1), did not apply.
If the government (Philadelphia Police, DEA, FBI or USPIS) wish to attribute an illegal item to you that was not recovered from your person (i.e., nearby car or home), hire the experience needed to challenge whether you constructively possessed the weapon.
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Criminal Defense
Video Transcript
Speaker: Andrew Gay, Jr., Philadelphia Criminal Defense Lawyer
“In a criminal matter, preparation is key. Whether you are walking into a preliminary hearing room, or you are preparing for trial.
When I’m preparing for your criminal trial, I will look over every scrap of evidence that exists. I will look at police reports, witness statements, 911 tapes, transcripts of 911 tapes, preliminary hearing testimony, anything that is available for me will have been thoroughly reviewed and discussed with you before we walk in.
I will know what each individual witness has to say about the most important issues in your trial. And it’s honing in on those important issues and the differences in testimony between the prosecution witnesses and the defense witnesses that will better prepare me to make sure that the correct argument is made to your jury.
In order to make sure that I’m able in your criminal trial to attack the witnesses that are testifying against you, I make sure that I look at each and every statement and compare it to their prior testimony at a preliminary hearing to make sure that there is no way for them to change their story, to make sure that there’s no way for them to then embellish upon what they previously told the police, or what they previously testified to in court. And many times, being able to attack a witness based on prior inconsistent testimony is what helps us win criminal trials.
It’s very important for you as the client to make sure that you have someone on your side from the very beginning of the case. So waiting to hire a lawyer until after the preliminary hearing many times is a big mistake, because if the lawyer who’s representing you at trial also properly prepared for your preliminary hearing and interviewed your witnesses prior to your preliminary hearing, the trial result is going to be much better.”
Personal Injury
Video Transcript
Speaker: Andrew Gay, Jr., Philadelphia Personal Injury Lawyer
“In personal injury matters there are often times far more documents to review and cross-check to know how those documents will best establish how the incident actually occurred. Reviewing all those documents helps us establish who’s at fault for your injury. It helps us establish how the accident actually occurred.
When I handle your personal injury matter, if I need to, I will hire experts from our first initial meeting. It’s extremely important when we meet with you for the first time about your personal injury case, that we identify if there are any experts that we need to immediately engage, in order to preserve evidence that may later on disappear or become unavailable to us. For example, we have many times hired Engineers to photograph and take measurements at accident scenes to later find out before trial, that for instance, the roadway has been repaved and that evidence is no longer available to us. If we didn’t send that engineer out to your accident scene within a week or two after your injury that evidence would have been gone forever. Hiring experts from the beginning of your personal injury representation for you, is key to our success later on at the time of trial.
I’m always prepared to go to trial and your adversary needs to know that. Your adversary needs to know that particularly in a personal injury matter because insurance companies do not like to settle their cases for anything more than they absolutely have to. And when you have demonstrated to your opponent in a personal injury matter, that you are prepared to go to trial and you are prepared to go to verdict, then your settlements are far better than they are otherwise.
The initial consultation is always free and the sooner you pick up the phone to schedule an appointment, the sooner we can talk about your case.”
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