Bucks County Criminal Defense Lawyers

Wiretapping is a form of electronic surveillance that plays a critical role in criminal investigations. Wiretapping uses covert means in order to intercept, monitor, and record private telephone conversations and is normally done through a government informant/employee recording conversations. It is done without revealing the presence of government listening devices. This is most commonly used in investigations, specifically for organized crimes. These conversations can reveal the extent of the crimes being committed and the scope of the criminal organization. Wiretapping is also used to expose participants, potentially a series of conversations, and meetings which can lead to the potential prosecution of suspects.

Wiretapping has been an extremely controversial topic because many feel that is a violation of constitutional rights, specifically the fourth amendment, which is a person’s right to be free from unreasonable governmental searches and seizures. Although the people feel that their rights are being violated, the Supreme Court has found time and time again that wiretapping is in fact not a violation of the fourth amendment.

According to On Lee v. United States (1952), wiretapping is not a violation of the fourth amendment. This set a major precedent for future cases because when a new case came to light with case facts, the courts would refer back to this case. Since the ruling, there have been other cases that changed the general legislation but have still come to the overall conclusion that wiretapping is constitutional. There are many landmark cases that have taken place throughout the years, and it is still up for a solid debate even today.

In order for the government to wiretap, they must obtain a warrant first. This is to keep the actions legal and still constitutional. In order to obtain a warrant, there must be probable cause to justify a search, describe the conversation to be intercepted, and an anticipated time period for the requested surveillance. As far as other searches and seizures go exigent circumstances may potentially be grounds for the government to bypass obtaining a warrant. These circumstances would be if there is a life-threatening situation or a threat to national security.

In 2001, the Patriot Act was enacted. This was to protect the United States by allowing law enforcement to use surveillance against crime of terror. This would allow government to potentially wiretap anyone of suspicion in this country.  This is still controversial but is how government justifies wiretapping. The government is permitted to use this strategy and has continuously been granted the right to do so because it is necessary to ensure the greatest good for the greatest number of people. 

Your Bucks County criminal lawyers will have to fight and challenge the validity of the warrant and/or the extent of the wiretap.  It is an exhaustive process that is typically done after receipt of discovery and during pre-trial motions to suppress.  

Overall, government wiretapping is a commonly used form of electronic surveillance. It is permitted because it has been found to not be a violation of the fourth amendment or any other constitutional rights. This will remain being an extremely controversial issue to many Americans, however it is still legal and actively occurring.

         In recent years, surveillance technology has improved and grown drastically. License place readers are designed to track movements of passing drivers on highly active streets. These automatic license plate readers are mounted on police cars or on objects like road signs and bridges, use small, high-speed cameras to photograph thousands of plates per minute.

          The readers capture information including the license plate number, the date, time, and exact location. This collected information is often pooled into regional sharing systems. This information is collected in order to target highly populated areas to ensure the safety of civilians. The collection of this information is highly controversial because there are no privacy laws implemented. This is critical in dealing with people’s personal information. In 2012, the American Civil Liberties Union collected 26,000 pages of documents detailing the use of the license plate reader technology from around the country.

          The information in the documents collected display that there is little to no regulation so the readers are becoming a tool for surveillance and mass location tracking. This leads to pulling the information of innocent people when they may potentially be doing nothing wrong. The lack of regulation means that policies governing how long location data is kept vary widely.

          The software aspects of the system run on standard computer software and can be linked to other databases. It first uses a series of image manipulation techniques to detect, normalize and enhance the image of the number plate, and then optical character recognition (OCR) to extract the alphanumerics of the license plate. Once the photograph is taken it is uploaded to the central system where the data is collected and analyzed.

          Police cars can be fit with cameras, allowing officers to capture plates as they drive along on their normal path. Mobile cameras are more effective at capturing plates of parked cars. This allows for officers to also patrol parking lots and heavily populated regions. The concern with this is that people feel violated and as if their rights are being taken advantage of. There are many disagreements as far as the boundaries of surveillance go. To date there are only fourteen states have statutes in place for license plate reader technology. In addition to the lack of regulation there is also concern that they are too expensive and the funding is not available. A good portion of the funding comes from a justice assistance grant program and the homeland security grant program.

          A review of the purchase orders in the databases show that Vigilant and 3M are the largest vendors of license plate reader technology. Vigilant has been particularly involved in the lobbying for the adoption of the reader technology. Private companies are also using this modern technology. Particularly DRN and MVTrac are the two main companies. They hire outside contractors to collect license plate data for cars across the country. These companies share the data that they collected with banks, insurance companies, credit reporting agencies, and “auto recovery” companies in order to find fraud and identity theft. This also shares its data with police agencies.

          Most law enforcement agencies store plate data in the databases for many years and pass it along to other law enforcement agencies throughout their region. For example, in the greater Los Angeles area, nearly 30 individual law enforcement agencies pool their license plate data.  Agencies also share data across the state and even with federal agencies. Police can then search these massive amounts of accumulated data in future investigations. This is both beneficial and negative because that information is critical and allows for personal information to be revealed. The database in which this information is stored is easily accessible and alerts the officer in the car if there is a match. The officer can then search a DMV database to learn the name and identifying information of the owner of the vehicle.

          Overall, license plate reader technology is a highly advanced and modern concept. There is a valid argument from both sides of the spectrum. The most critical aspect of this is the civilians and their safety. It becomes political and in certain cases a violation of rights. Unfortunately, there is no way to please all views, so hopefully with the right regulations and policies created it could be extremely beneficial and positive for all parties involved.

          In 2014, Pennsylvania made a drastic attempt to limit the rates of fatal drug overdoses by implementing what is known as the Overdose Immunity Law (Bill 1164). Prior to the passing of this law, both the person who suffered and overdose and the person who called for help would be charged with various crimes. An example of this would be if someone called the police because their friend had overdosed and there was paraphernalia and drugs recovered from the scene, both the victim of the overdose and the friend who called would be charged with the crimes. After the law passing this concept was essentially thrown out the window. If a person is calling to help someone who is suffering from an overdose, the person who made the call is immune from criminal prosecution in many situations. This act “grants immunity to an overdosing person and those who render aid under limited circumstances.” The overall purpose of this is to encourage the reporting of drug related overdoses without a fear of prosecution.

            The legal definition of an overdose is "an acute medical condition, including, but not limited to, severe physical illness, coma, mania, hysteria or death, which is the result of consumption or use of one or more controlled substances causing an adverse reaction." This lays the foreground for the Overdose Immunity Law because it would classify what is acceptable to call and be granted immunity for. Under the new act a person cannot be charged with a crime or a violation of probation/parole if the Police only became aware of the drug offense because the reporting person transported the overdosing person to a healthcare facility, campus police or law enforcement agency; OR The reporting person has a reasonable, good faith belief that another is suffering from an overdose. Immunity is typically granted for a person experiencing a drug overdose if they are compliant after the fact. The offenses that they are immune from prosecution include but are not limited to; simple possession, purchasing from an unauthorized person, small amount of marijuana, and paraphernalia.

            There are cases where, as a Bucks County criminal lawyer, you encounter what an "overdose" means.  Some law enforcement agencies are narrow in their interpretation, but it is my argument that there is much more broad language for a reason -- because it is meant to stop horrible outcomes.  So, if a person is "sleeping" because they took drugs - they should be protected as that is an "overdose event".  

            The law was enacted in an attempt to impact the fatal overdose rates by granting immunity to individuals involved in the situation. This is also a case by case scenario. There are guidelines and general circumstances drawn up but not every case is going to match the law completely. The issues arise when a person calls when someone is overdosing and the background does not match the law perfectly. Then it is expected that law enforcement allow whatever is going go when a legitimate crime could be occurring. The law is still not solid and concrete but it is a drastic step forward from what it used to be.

            Overall, the Overdose Immunity Law has been wildly beneficial. This is valuable to the criminal justice system because it is extremely overcrowded and backed up.  This is also a wildly large step for addicts who have experienced the preventable deaths of their loved ones due to the fear to call the police and ask for help. Overdose death data is slowly changing, however bringing in these “good Samaritan laws” has been positive for the acceptance of drug addiction. This is not condoning drug use and addiction; it is more or less creating a safe haven for those in true need.

            Medication-Assisted Therapy (MAT) is a newer and controversial concept. This is the action of using drug therapy to help treat addiction. A very common drug used is Vivitrol, also known as naltrexone, which is a shot that blocks the effects of opioids. This includes pain relief and the blocking of the utopic feelings that may lead to drug abuse and addiction. It is an injection distributed to previously opioid dependent people in order to prevent relapse. The primary function is to prevent the “need” to use opioids. Vivitrol can also be used to treat alcoholism by reducing the urge to drink. This shot should not be received if someone is experiencing withdrawal. It is used in the early recovery steps of an addict because it is a non-addictive opiate antagonist given in shot form once a month. However simple and positive the drug may appear, there are various pros and cons.

          The benefits of vivitrol are very positive and should be considered in making the decision of whether or not to take the drug. Vivitrol can make drugs and alcohol less desirable, it is a shot once a month so there is no need to remember to take the medication every single day, it could potentially break the dependence on habit-forming drugs without running the risk of a second addiction being formed.  In today’s society addiction is a more open and discussed issue. There is less of a stigma surrounding addiction and people are more inclined to help addicts, and find ways to treat what is now considered a disease.  The ability to mitigate the urge to use drugs could possibly be life altering. It could allow for an addict to become a functioning member of society and no longer live their life strictly to fuel their addiction. For many people these pros are massively valuable and beneficial.

          The counter argument/ cons of vivitrol is that is there are numerous possible drawbacks that may affect the recipient. This treatment may not be safe for pregnant women or women who are breastfeeding; there is the risk of severe liver damage, there are harsh side effects that may occur; including but not limited to nausea, vomiting, loss of appetite, headaches, dizziness, joint pain, depressed mood, pneumonia and allergic reactions. In addition, it is very expensive, and requires flexibility in schedule in order to attend monthly appointments to receive the shot. Finally, there is still the potential for overdosing on the drug due to the fact that addicts take drugs in attempt to chase a high and with vivitrol there is no high to reach.

          Overall, Vivitrol is extremely controversial and there are many possible outcomes that may occur due to the fact that addiction is so unpredictable and erratic. There is not necessarily a correct path to take and Vivitrol is not a solution but it could potentially help the recovery process especially for those who struggle the most.

            By definition a court room witness is a person who gives testimony under oath and penalty of perjury in a court of law. They are legally required to appear in a court room setting and speak on the cases behalf. Witnesses are often times in a position to speak in front of a jury, as well as all of the court room officials and permitted people however; federal cases are closed to the public. They are questioned by either the prosecutor or the defense. Witnesses are more likely than not familiar with a court room setting and are uninformed of their rights in front of a jury, specifically a federal grand jury.

             When a witness is given a subpoena, they are legally bound to be truthful and present in the court room. They are expected to answer blind questions to the fullest extent and as truthfully as they can. Typically, a witness is unaware of the fact that there are rules and rights, so they either lie or they only tell sections of a story in hopes to not find themselves in trouble as well. This can potentially be harmful to the witness, and jeopardize the case as a whole.

            One of the most critical rights that witnesses are entitled to is the ability to “plead the fifth”. This is taking the Fifth Amendment and not having to speak on the stand once the action is taken. This is a way to avoid self-incrimination and not have to perjure oneself on the stand. At any given point a witness can a “take the fifth” and refuse to answer the questions being asked. This is mostly used when a witness cannot speak on what they know or saw without showing evidence of their own crimes. The Fifth Amendment is protected under the constitution of the United States. If a witness can play their cards well, they may potentially be able to convince the prosecutor to grant them immunity. This ensures that they can openly speak and not incriminate themselves. This also means that the witnesses Fifth Amendment rights are temporarily terminated and they have to answer everything asked fully and truthfully. This is often times something a witness is unaware of.

            Another right that witnesses for a federal grand jury have is that they are entitled to an attorney before testifying. The witness’s attorney may not be in the court room, but they are permitted to be outside the Grand Jury room. The witness may step out of the court room to consult with their attorney before answering any questions they may be asked. This is critical to avoid self-incrimination if that was a potential issue.

            Witnesses are entitled to a form of reimbursement as well. They are often paid around forty dollars a day and are compensated for their travel expenses. There is no special treatment or bribe to get a witness on board to testify. There is a legal document that states they must attend court on the date and time and it is illegal to not do so. Witnesses are losing work and money but they are still expected to be present and will receive some form of small payment.

            Witnesses have the same rights that anyone has but the most important and critical thing is that they have the right to be informed and involved. They are not forced to speak off of the stand. They are not to be treated as if they committed a criminal act. They are simply people who may have seen or participated in an act that is missing information. They are granted rights that are critical to preserve the foundation of “innocent until proven guilty”. Witnesses are key players in a court room because they can make or break a case. They have rights that they must know especially because they are brought into the court room environment without wanting to be there, which will make them more inclined to be comfortable enough to speak on the cases behalf.

A drug case occurs.  Money is seized.  

A car is stopped and 10 pounds of pot are in it.  The vehicle is seized.  

A phone is seized that is suspected of being used to set up drug sales.  

A gun is used and is seized during the investigation.  

Seizure and forfeiture happens all the time.  I recently had a not guilty verdict as a Bucks County criminal lawyer where my client was accused of shooting a gun at people to terrorize or assault them.  He was NOT GUILTY.  The State Troopers refused to give his shotgun back.  I fought them through the forfeiture act and won.  

An item is seized for investigation.  An item is forfeited if the Commonwealth wants to keep it.  

Title 42 Chapter 58 controls Forfeiture of Assets, which was amended recently in August 2017.  

The change, according to the Governor, involves:

• Higher burdens of proof imposed on the Commonwealth;
• Protection for third-party owners by placing an additional burden of proof on the Commonwealth;
• Improved transparency in auditing and reporting;
• Specific and additional protection in real property cases by prohibiting the pre-forfeiture seizure of real property without a hearing, and;
• An extra level of protection for anyone acquitted of a related crime who is seeking the return of their property.

The new law requires a showing that the property is tied to criminal activity by "clear and convincing evidence."  Previously, it was a "preponderance of the evidence."  

Additionally, a person whose car is seized, for example, could petition to keep the vehicle if they can show that someone in the household needs the vehicle to be able to get back and forth from work.

Another positive change:  The new law prevents law enforcement from evicting people from a home before a forfeiture hearing.  The only exception is if the government can demonstrate to a judge that alleged criminal activity is likely to continue there, or the property will be sold or destroyed if police don't get it earlier.

             The guilty but mentally ill (GBMI) verdict is an option that allows juries and judges to establish that a defendant is guilty of committing an offense while formally acknowledging that the defendant has some form of a mental illness. This is not a replacement for the insanity defense but it does however present an alternative verdict option. This plea is most common when there is evidence presented on the defendant that proves either a lack of appreciation for the wrongness of their actions, or a lack of understanding of the penalties of their actions. The standard is still very high.  The guilty but mentally ill plea’s foundation is similar to a standard guilty plea; however it enhances the fact that the defendant needs mental health treatment in addition to the punishment of their crime.

            The guilty but mentally ill plea was first adopted in Michigan in 1982. It stemmed from the 1974 case of People vs. McQuillan. It was found that it is unconstitutional to detain people who were found not guilty by reason of insanity (NGRI) for indeterminate periods of time because it violates their due process and equal protection rights; this is where the GBMI was implemented. If a defendant has a guilty but mentally ill verdict they are sentenced the same as a regular guilty plea. It is then in the courts hands to determine the type and extent of treatment the defendant requires. If/when the defendant is considered to be stable; they will then serve out the remainder of their sentence in prison. In order to be pronounced guilty but mentally ill the defendant must be evaluated for psychiatric treatment. If treatment is deemed necessary, a mental health plan is put into place for that specific person.  

            The idea behind the guilty but mentally ill plea option was that it would reduce the number of insanity acquittals and not allow for the not guilty but reason of insanity cases to be released early. It is a middle of the road solution. This was something new and progressive but not as difficult to prove as not guilty by reason of insanity.  There are critics who argue that the guilty but mentally insane verdict does not serve a particular purpose and does not have a real reason to be in place. The fear is that it is more political than it is for the defendant in question. It may potentially confuse a jury into thinking that it is some form of a compromise and they are helping the defendant. These are potential risks of finding a defendant guilty but mentally ill however, they have not proven to be credible and there is no research to back the theories.

            In essence, the guilty but mentally ill plea forces offender’s to be criminally responsible for their actions, but also allows for the proper care and treatment for their mental health illness.  As of right now, the guilty but mentally ill plea has only been adopted by twenty of the states but many experts have come to the conclusion that  whereas it does not necessarily impact sentencing or the punishment, it does however fill a gap by flagging defendants for mental health treatment in prisons. In almost all cases, this is a critical step in forming a treatment process while the defendant serves out their respected sentences. Supports of the guilty but mentally ill plea claim that there is more justice served by this trial outcome than in not guilty by reason of insanity (NGRI) cases. This is because those who are found guilty but mentally ill are held accountable for their actions and also are provided the opportunity to restore their mental stability, unlike those in NGRI pleas.

Typically given during a grand jury, a person can receive many different types of immunity.  This allows/forces them to testify (under the threat of contempt) with the presumed benefit of limited criminal exposure to their testimony.  One frequent form of immunity is "use and derivative use".  

The federal immunity statute (18 U.S.C. § 6002) allows the government to prosecute the witness using evidence obtained independently of the witness's immunized testimony. Section 6002 provides:

[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

If you are hoping to be a teacher in Pennsylvania, you have to be very particular about how you report a pending crime or a previous conviction.  The Teacher Information Management System ("TIMS") online registration asks applicants if they have ever been convicted of a misdemeanor or felony (not summary offense).  It also asks if a person has any pending criminal charges or subject to an inquiry or investigation by law enforcement anywhere.  If you are currently on ARD, you do have "pending criminal charges" so you would have to report that on your registration.  

If you are a current employee, all public school employees (i.e. public teachers) there is a a requirement that within 72 hours of an arrest for any crime listed in Section 111(e) or 111(f.1) of the School Code.  If a teacher does not self-report when required to do so, the teacher can be subjected to professional and employment discipline.  The potential courses of action that can be taken on the teacher depend on the type of crime charged and the type of victim (i.e. a child).  Thus, for a teacher, it is critical to balance your obligations to the criminal court (and your lawyer) as well as your employment obligations.  

We've already discussed how field sobriety tests do not violate the privilege against self-incrimination under the U.S. and Pennsylvania Constitutions.  

Videotaping a defendant's ability to walk in a straight line or to perform other physical tests does not invoke constitutional protections because, as is true for field sobriety tests generally, physical evidence is not communicative or testimonial in nature.  This is true in a case as a police officer stopped appellant after he had observed him weaving back and forth between highway and berm. The officer smelled the odor of alcohol from appellant's breath. Appellant was unable to perform field sobriety tests adequately and was placed under arrest, taken to a police station, and given a breathalyzer. The breathalyzer malfunctioned so appellant was taken to a hospital where a sample of his blood was drawn which established that his blood alcohol concentration was .34 percent. Appellant was tried without a jury and was found guilty of driving while under the influence of alcohol. Appellant sought review and the court affirmed the judgment of the trial court. The court held that the privilege against self-incrimination found in Pa. Const. art. I, § 9, did not preclude evidence of the results of field sobriety tests administered to citizens believed by the police to be under the influence of alcohol. The court determined that Article I, § 9 protected only testimonial evidence and a field sobriety test was neither testimonial in nature nor did it extract or communicate protected knowledge or thoughts.  Commonwealth v. Romesburg, 353 Pa. Super. 215 (Pa. Super. Ct. 1986)

The audio portion of the videotape, however, may run afoul of both Fifth and Sixth Amendment protections if the defendant is compelled by circumstances to utter words that reveal the defendant's thought processes.  The big case in this arena is Commonwealth v. Rishel, 399 Pa. Super. 413 (Pa. Super. Ct. 1990).  In that case, the Appellee driver was arrested after being involved in an accident where he might have been under the influence of alcohol. At the police station, appellee's processing was videotaped. Appellant commonwealth contended that the third section of the videotape where appellee was fingerprinted and photographed was erroneously suppressed. During this phase appellee made comments to police officers without the officers provocation because appellee had previously invoked his right to counsel. The court reversed and remanded the trial court's order suppressing the third section of appellee's videotaped information. The incriminating nature of the statements were exhibitions of physical characteristics, such as slurred speech, and not testimonial in nature since they were a not product of police interrogation. Therefore, appellee's U.S. Const. amend. V rights were not violated. The court further found that appellee's U.S. Const. amend. VI rights were not violated because counsel was not needed at the videotaping stage of the proceedings since the officer did not attempt to elicit incriminating statements from appellee.

Of course, once a defendant has invoked his or her Fifth or Sixth Amendment privileges, an audiotape of the defendant's responses to questions about how much alcohol he or she had consumed is inadmissible.  

In addition to such clearly incriminating statements, it appears that anything said while the field sobriety test is being taken may be inadmissible.  This is a point of exploration and potential attack for your Bucks County criminal lawyer or Quakertown DUI lawyer.  For example, when a defendant in Bucks County spoke only to get occasional clarifications of the officer's instructions for a field sobriety test, and, as part of the test, counted from 1,001 to 1,030, those verbal utterances were inadmissible.  The court declined to accept the Commonwealth's argument that the utterances were offered for the manner in which they were made, as symptomatic of intoxication, and not for the substantive content of the words spoken.  Similarly, when the defendant was obscene and uncooperative, and repeatedly commented on the absence of legal representation, the audiotape of those statements was inadmissible.

In Pennsylvania v. Muniz, the U.S. Supreme Court stepped in.  The Defendant was convicted of driving under the influence of alcohol. Defendant argued that portions of a videotape should have been suppressed because he had not been given his Miranda warnings. The state appellate court agreed and vacated defendant's conviction, holding that when the physical nature of the tests began to yield testimonial and communicative statements, the protection afforded by Miranda was invoked. The Court found that the Miranda requirement afforded protection against self-incrimination to persons under custodial interrogation. The Court distinguished between testimonial and real or physical evidence when invoking the privilege. The Court held that a field sobriety test or taking a blood sample constituted real or physical evidence; whereas requiring defendant to respond to specific questions was testimonial. The Court distinguished questions from defendant while he was informed about the properties of a breathalyzer test from utterances made in response to personal questions from the police officer, such as the date of defendant's sixth birthday. The Court held that comments made by defendant while submitting to a test should not have been suppressed.