Smell of Marijuana Establishes Probable Cause

The Federal Courts all across the land seem to agree that if a cop smells marijuana in your car, that means there is probable cause to search the whole car - even the trunk! In a recent opinion, Federal Court Judge Mary McLaughlin, who sits in Philadelphia, upheld the search of a man's truck by a Maryland State Trooper solely on the basis that the Trooper smelled marijuana. In the trunk was found a boatload of cocaine, and the driver is now looking at a long sentence.

Luckily, for those prosecuted in Philadelphia or other state courts, the protection of the Pennsylvania Constitution applies. Our state constitution is a good deal stronger than the U.S. Constitution, and Philadelphians should be proud that the right of privacy is still strong here. Philadelphia police are subject to a state requirement of a warrant or exigent circumstances. And Philadelphia judges know that the police often invent the presence of the smell of marijuana in order to perform illegal intrusions into our liberties.

The Tenth Circuit is the only federal court that agrees with Pennsylvania. So, the moral of the story is that if you're going to smoke a joint east of the Rocky Mountains, you better do it in Pennsylvania. Better yet - stay in your home.

Note: Hochberg Levin & Zeiger does not condone or support the use of any drug, including marijuana.

You can read Judge McLaughlin's opinion here:
http://www.paed.uscourts.gov/documents/opinions/06D1185P.pdf

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Statute of Limitations

Statute of Limitations

Some debate has occurred within our office over Pennsylvania's Statute of Limitations. What is the law? Since a bunch of Philadelphia criminal lawyers disagree on the practical side of how the statute actually works in court, I thought I would post the actual statute here. Remember this statute has nothing to do with a Ross Motion for Pre-Trial Arrest Delay, 600e or 600g.

42 Pa.C.S. § 5552:

§ 5552. Other offenses


(a) GENERAL RULE.-- Except as otherwise provided in this subchapter, a prosecution for an offense must be commenced within two years after it is committed.

(b) MAJOR OFFENSES.-- A prosecution for any of the following offenses must be commenced within five years after it is committed:

(1) Under the following provisions of Title 18 (relating to crimes and
offenses):

Section 901 (relating to criminal attempt) involving attempt to
commit murder where no murder occurs.

Section 902 (relating to criminal solicitation) involving
solicitation to commit murder where no murder occurs.

Section 903 (relating to criminal conspiracy) involving conspiracy to
commit murder where no murder occurs.

Section 911 (relating to corrupt organizations).

Section 2702 (relating to aggravated assault).

Section 2706 (relating to terroristic threats).

Section 2713 (relating to neglect of care-dependent person).

Section 2901 (relating to kidnapping).

Section 3301 (relating to arson and related offenses).

Section 3502 (relating to burglary).

Section 3701 (relating to robbery).

Section 3921 (relating to theft by unlawful taking or disposition)
through section 3933 (relating to unlawful use of computer).

Section 4101 (relating to forgery).

Section 4107 (relating to deceptive or fraudulent business
practices).

Section 4108 (relating to commercial bribery and breach of duty to
act disinterestedly).

Section 4109 (relating to rigging publicly exhibited contest).

Section 4117 (relating to insurance fraud).

Section 4701 (relating to bribery in official and political matters)
through section 4703 (relating to retaliation for past official
action).

Section 4902 (relating to perjury) through section 4912 (relating to
impersonating a public servant).

Section 4952 (relating to intimidation of witnesses or victims).

Section 4953 (relating to retaliation against witness or victim).

Section 5101 (relating to obstructing administration of law or other
governmental function).

Section 5111 (relating to dealing in proceeds of unlawful
activities).

Section 5512 (relating to lotteries, etc.) through section 5514
(relating to pool selling and bookmaking).

Section 5902(b) (relating to prostitution and related offenses).

(2) Any offense punishable under section 13(f) of the act of April 14,
1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug,
Device and Cosmetic Act

(3) Any conspiracy to commit any of the offenses set forth in
paragraphs (1) and (2) and any solicitation to commit any of the
offenses in paragraphs (1) and (2) if the solicitation results in the
completed offense.

(4) Under the act of June 13, 1967 (P.L. 31, No. 21), known as the
Public Welfare Code

(5) Under the act of November 24, 1998 (P.L. 874, No. 110), known as
the Motor Vehicle Chop Shop and Illegally Obtained and Altered Property
Act

(B.1) MAJOR SEXUAL OFFENSES.-- A prosecution for any of the following offenses under Title 18 must be commenced within 12 years after it is committed:

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 4302 (relating to incest).

Section 6312 (relating to sexual abuse of children).

(c) EXCEPTIONS.-- If the period prescribed in subsection (a), (b) or (b.1) has expired, a prosecution may nevertheless be commenced for:

(1) Any offense a material element of which is either fraud or a breach
of fiduciary obligation within one year after discovery of the offense
by an aggrieved party or by a person who has a legal duty to represent
an aggrieved party and who is himself not a party to the offense, but
in no case shall this paragraph extend the period of limitation
otherwise applicable by more than three years.

(2) Any offense committed by a public officer or employee in the course
of or in connection with his office or employment at any time when the
defendant is in public office or employment or within five years
thereafter, but in no case shall this paragraph extend the period of
limitation otherwise applicable by more than eight years.

(3) Any sexual offense committed against a minor who is less than 18
years of age any time up to the later of the period of limitation
provided by law after the minor has reached 18 years of age or the date
the minor reaches 50 years of age. As used in this paragraph, the term
"sexual offense" means a crime under the following provisions of Title
18 (relating to crimes and offenses):

Section 3121 (relating to rape).

Section 3122.1 (relating to statutory sexual assault).

Section 3123 (relating to involuntary deviate sexual intercourse).

Section 3124.1 (relating to sexual assault).

Section 3125 (relating to aggravated indecent assault).

Section 3126 (relating to indecent assault).

Section 3127 (relating to indecent exposure).

Section 4302 (relating to incest).

Section 4304 (relating to endangering welfare of children).

Section 6301 (relating to corruption of minors).

Section 6312(b) (relating to sexual abuse of children).

Section 6320 (relating to sexual exploitation of children).

(C.1) GENETIC IDENTIFICATION EVIDENCE.-- Notwithstanding any provision of law to the contrary, if evidence of a misdemeanor sexual offense set forth in subsection (c)(3) or a felony offense is obtained containing human deoxyribonucleic acid (DNA) which is subsequently used to identify an otherwise unidentified individual as the perpetrator of the offense, the prosecution of the offense may be commenced within the period of limitations provided for the offense or one year after the identity of the individual is determined, whichever is later.

(d) COMMISSION OF OFFENSE.-- An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated. Time starts to run on the day after the offense is committed.

(e) COMMENCEMENT OF PROSECUTION.-- Except as otherwise provided by general rule adopted pursuant to section 5503 (relating to commencement of matters), a prosecution is commenced either when an indictment is found or an information under section 8931(b) (relating to indictment and information) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without unreasonable delay.

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High Court Takes Away Right To Confont In Drug Cases

On October 17, 2007, the Pennsylvania Supreme Court once again reduced constitutional protections for those accused of committing drug offenses. In Commonwealth v. Carter, the Court held that a state police laboratory report can be introduced into evidence as a business record, even if the chemist does not come to court to testify. Thus, those accused of drug offenses no longer enjoy the constitutional guarantee of confronting all of their accusers. Chief Justice Cappy was the lone dissenter. His opinion is a classic example of clear and concise legal reasoning, and is available on the web by clinking this link: http://www.courts.state.pa.us/OpPosting/Supreme/out/J-59-2006do.pdf

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What is CODIS?

What is CODIS?

CODIS is the nation DNA data base run by the FBI. From the FBI site,

"The FBI Laboratory's Combined DNA Index System (CODIS) blends forensic science and computer technology into an effective tool for solving violent crimes. CODIS enables federal, state, and local crime labs to exchange and compare DNA profiles electronically, thereby linking crimes to each other and to convicted offenders.

CODIS began as a pilot project in 1990 serving 14 state and local laboratories. The DNA Identification Act of 1994 (Public Law 103 322) formalized the FBI's authority to establish a national DNA index for law enforcement purposes. In October 1998, the FBI's National DNA Index System (NDIS) became operational. CODIS is implemented as a distributed database with three hierarchical levels (or tiers) - local, state, and national. NDIS is the highest level in the CODIS hierarchy, and enables the laboratories participating in the CODIS Program to exchange and compare DNA profiles on a national level. All DNA profiles originate at the local level (LDIS), then flow to the state (SDIS) and national levels. SDIS allows laboratories within states to exchange DNA profiles. The tiered approach allows state and local agencies to operate their databases according to their specific legislative or legal requirements."

The newest trend in DNA science is to find "familial DNA matches." In other words, if the DNA matches, but not exactly, is that a full sib, an ancestor, an offspring? Are they related. The FBI, state and local authorities are using DNA to solve cold cases and new crimes.

If you are convicted of a felony sex crime, should the authorities be allowed to take your dna and add it to CODIS? Any sex crime? Any felony? Just an arrest? Get more info from the Innocence Project.

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Montgomery County Homicide

Montgomery County Homicide

Attorney Gabriel Z. Levin successfully defended man accused of homicide in Montgomery County. Read the articles

• Man accused of gunshot slaying doesn’t take the stand
• Jury reaches split verdict in murder trial

Congrats Gabe!

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Mens Rea

Mens Rea. I got caught shoplifting (retail theft), but i didn't mean to take anything. This is all a big mistake. Will I be convicted.

You can argue to the judge, or jury, that your intent was not criminal when you left the store with items that did not belong to your, in other words, you had no mens rea. For example, you are in a clothing store at the mall and you see a display in the window. You step out of the store with the item in your hand to compare it to the one in the window. If this is the case, you may not be convicted. This type of defense really depends on the actual facts.

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Endangering the Welfare of a Child (EWOC)

If I have never been arrested and now I am charged with Endangering the Welfare of a Child (hereinafter "EWOC") can I go to jail?

In Pennsylvania, there are sentencing guidelines that are supposed to guide the judge in determining the range of applicable sentence that would be appropriate. Two factors are considered: 1. your prior convictions; and 2. the gravity of the current case.

EWOC can be one of two different crimes. EWOC as a misdemeanor of the first degree is a single occurrence where you did something that put the child in danger. An example would be leaving a 2 year old home alone so that you could go to the store, or go to your dealers house to buy pot. In this instance, unless the underlying act was absolutely horrible, I can't see many judges giving you jail time, but remember in PA sentencing is discretionary.

EWOC as a felony of the third degree is a 'continuing course of conduct' deterimental to the child's welfare. This means that the occurrence happens over and over again. For example, turning a blind eye while you husband (the 8 year old's step dad) rapes her over and over again because he keeps supplying you with crystal meth; or getting a second or third DUI with the kid in the car seat, where each DUI involved a kid in the car; or getting a fourth or fifth ticket with the kid not in a car seat. In this instance you absolutely can get jail time or house arrest depending on the seriousness of the act. If the acts involve sex or pornography, I think you could get some time.

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Probation Violations

If I am on probation and I get arrested on a new case, will I go to jail? How long will I go to jail?

Whether the person will go back to jail is a decision the original judge makes, based on the probation officer's recommendation and all the facts and circumstances of the case. It is a situation where advocacy by a good lawyer can make the difference between jail and freedom.

If the person is convicted of possession of drugs, the highest possible penalty is one year for a first offense and three years for a subsequent offense.

The original judge may also sentence the person to jail for a direct violation of probation. That sentence can be served at the same time or consecutively.

The best thing to do is to retain an attorney. The second best thing to do is to get the person immediately into a detox or rehab program, or, if there are financial/insurance issues, then get the person to regular NA meetings.

Also, it is important not to hide from the probation officer. Nothing upsets judges and probation officers more than a person who screws up and then compounds that mistake by absconding from probation.

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Simple Possession of Narcotics

What do the charges: purc/rec of cont. subst by unauth per and int poss contr subst by per not reg., mean in plain english? This means that someone is is being accused of being in possession of illegal narcotics that were not their own prescription. This includes but is not limited to oxycodone, percocet, xanax, cocaine, heroin, marijuana, and pcp (aka angel dust).

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Paraphernalia

What does CS13A32 mean?

This means drug paraphernalia. Paraphernalia can be a pipe, a scale, baggies, etc. If you were arrested and convicted, meaning you were found guilty or plead guilty, then you have a criminal record. If the case was thrown out then you do not have a record, but there is a record of your arrest. You CAN get an arrest expunged.

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PWID Drug Case

My friend got arrest for PWID. There is a warrant in the case. The warrant says the the cops had surveillance and then made a direct sale to my boyfriend. His current lawyer wants him to plea guilty. Does he have to plea guilty?

No. You do not have to plea guilty. You have an absolute right to go to trial and have 12 strangers sit as your jury to decide whether they believe you are guilty or not guilty.

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Constructive Possession of Marijuna

Some of my friends were smoking weed. I don't smoke weed. They got busted but only one bag of weed was found on my friend. He admitted it was his. No other weed was found because it had all been smoked. Can I get charged for simple possession of marijuana?

You can't conspire to simply possess narcotics, so unless the officer finds it on you or can put it on you, i don't think they will charge you with possession unless they are trying to scare you.

If the cops try to put it on you, they would have to do that through some type of control and dominion of the pot that was not accessible to anyone else or that was really under your control.

In your question you said it was on your friend. Therefore, I can't see the cops succeeding in doing anything more than scaring you.

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Polygraph

Do you have a right to a Polygraph?

No. You have no right to have a polygraph test. However, you can set up your own polygraph test and invite the DA to send their representative to your polygraph and to use the results as they see fit. If they decline your invitation, you could still send them your results. Polygraph tests are generally in admissible at trial. Understand that if you take your own test, its possible that if you pass the DA will the AGREE to give you their own polygraph, and if you pass it, that may be to your benefit.

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Disorderly Conduct

I got arrested in Philadelphia County for disorderly conduct. I have never been in trouble before. What will happen to me?

You may be eligible for Community Court. Depending on the facts of your case, the Philadelphia District Attorney's Office may allow you to enter a plea of No Contest where you will be assigned community service. You will then receive a new court date. If you complete the proscribed community service, the judge will discharge your case. If you do not complete the community service the judge has the power to find you guilty. If your subpoena states that your courtroom is '1401 Arch Street' you are already slated for Community Court. You should also understand that you have the opportunity to enter a plea of not guilty and have a trial.

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