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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