Criminal Law Update

1. Criminal Law Update Adams County Bar Association – 2014 Stuart Suss, Esquire

2. Holmes, ___ Pa. ___, 79 A.3d 562 (10/30/13) No extra round of collateral attacks Reaffirm Grant (2002) - Claims of ineffective assistance to be deferred to PCRA review Extraordinary exceptions to deferral of ineffectiveness claims: • Ineffectiveness both meritorious and apparent from the record • Defendants who receive short prison sentences or probation • No prolix claims of ineffective assistance

3. Holmes, ___ Pa. ___, 79 A.3d 562 (10/30/13) Exceptions to deferral of claims of ineffectiveness must be accompanied by waiver of PCRA. Exhaustion of first PCRA petition 60 day deadline for any second PCRA petition • Government interference • Newly discovered facts • New retroactive constitutional right We do not authorize trial judges to appoint counsel to search for ineffectiveness claims. The trial court is not obliged to indulge a defendant's complaints about trial counsel.

4. Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (6/17/13) Any fact that triggers a mandatory minimum sentence is an “element” of the offense that must be submitted to the jury. Unconstitutional Pennsylvania statutory provisions regarding mandatory sentences • Not • an element of the offense • To be decided by the judge not the jury • Proof by a preponderance of the evidence May the unconstitutional provisions be severed from the statute? 

5. Current status of Alleyneissues • Alleyne does not apply retroactively on PCRA. • Miller, ___ A.3d ___ (Pa. Super. 9/26/14) • Alleyne applies retroactively on direct appeal. • Unconstitutional provisions are not severable. • Newman, ___ A.3d ___ (Pa. Super. 8/20/14) (en banc) • Amendment of information and special jury verdict do not cure constitutional defects. • Valentine, ___ A.3d ___ (Pa. Super. 10/3/14) • Prior convictions that enhance sentences are not elements of the offense, and are not subject to the Alleyne rule. • Not all mandatory sentences are constitutionally flawed. Homicide by Vehicle while driving under the influence 75 Pa.C.S. § 3804 (DUI penalties) 42 Pa.C.S. § 9717 (victim over age 60, defendant under age 60) • Supreme Court of Pennsylvania to have the final say • Commonwealth v. Hopkins, No. 98 MAP 2013 (argued 9/10/14)

6. SEXUAL OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) Indecent assault, Corruption of minors, Statutory sexual assault • No offender registration under prior law • Registration under current law • Current law applies retroactively Defendant claims that registration requirement is a breach of the plea agreement. Is SORNA unconstitutional as applied to juveniles? Interest of J. B., No. 87 MAP 2013 (argued 5/6/14)

7. SEXUAL OFFENDER REGISTRATION Issues to be considered with respect to adults: 1. Act 19 of 2014 may remove the registration requirement. Bundy, ___ A.3d ___ (Pa. Super. 7/10/14) Are the following issues now moot? 2. Was plea agreement nullified by defendant’s probation violation? Partee, 86 A.3d 245 (Pa. Super. 2/20/14) 3. Defendant entitled to specific enforcement of terms of a plea agreement. Hainesworth, 82 A.3d 444 (Pa. Super. 12/12/13) (en banc) 4. Request for specific enforcement is not a PCRA petition subject to PCRA filing deadlines. 5. May the sentencing court terminate supervision early? Commonwealth, Appellant v. Leeshay Bennaim, No. 51 MAP 2014

8. VEHICLE SEARCHES Gary, ___ Pa. ___, 91 A.3d 102 (4/29/14) (plurality opinion and Saylor, J. concurring) Tinted window stop (lawful stop) Q: Anything we need to know about? A. Some weed. Adoption of federal constitutional standard Mobility is a per se exigency

9. VEHICLE SEARCHES (Issues off the table) • Did the police have sufficient time to obtain a warrant? • Would the vehicle have been driven away if not immediately searched? • Would the interior of the vehicle been accessed by others? • Was anything dangerous inside the vehicle? • Should the police have posted a guard at the vehicle? • Should the vehicle have been impounded and a warrant then sought?

10. VEHICLE SEARCHES (Issues on the table) • Was the vehicle lawfully stopped? • Is there legal justification to search the vehicle? • May the police search containers found in the vehicle? • If the vehicle is impounded, is a warrant now necessary? • Is there a time deadline for searching after impoundment? • What rules apply to passengers and their belongings? • What is the scope of a search incident to an arrest of the driver? • What is the law pertaining to an inventory search?

11. Hudson, 92 A.3d 1235 (Pa. Super. 5/30/14) • Probable cause still required post-Gary • Broken tail light stop Furtive movements • Protective sweep: Three prescription pill bottles in center console • Pill bottle is not “immediately apparent” as contraband

12. California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (5/30/91) If police have probable cause to search a vehicle, they do not need a separate warrant to open a container. Every part of the vehicle and its contents that may conceal the object of the search may be searched. Trunk Ash tray Glove compartment Paper bag Backpack Briefcase Mobile digital storage device (computer, phone, tablet)??

13. Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (6/28/82) No search warrant is necessary even after the vehicle has been impounded. United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1/21/85) Search of packages permitted three days after impoundment of vehicle.

14. United States v. DiRe, 332 U.S. 581 (1948) Probable cause to search car does not permit search of passenger’s person Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (4/5/99) Probable cause to search car permits search of purse on back seat What if the passenger were holding her purse? (Breyer, J. concurring) What if the police separated passenger from her purse?

15. Cartagena, 63 A.3d 294 (Pa. Super. 1/23/13) (en banc)Brown, 64 A.3d 1101 (Pa. Super. 3/21/13)Buchert, 68 A.3d 911 (Pa. Super. 4/12/13) Protective frisk of interior of vehicle Officer reasonably believes that suspect is dangerous and may gain control of weapons Mere nervousness of driver insufficient Were there furtive movements?

16. Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L.Ed.2d 485 (4/21/09) A search of interior of vehicle, after the arrest of the driver, may not occur after the arrestee has been secured and cannot access the interior of the vehicle. Is it reasonable to believe that evidence of the offense of arrest might be found in the vehicle?

17. Lagenella, ___ Pa. ___, 83 A.2d 94 (12/27/13) Turn signal violation After stop: No emissions sticker, license is suspended 75 Pa.C.S. § 6309.2(a)(1) • Immobilization is distinct from impoundment • License suspension authorizes immobilization of vehicle • Operator has 24 hours to obtain judicial certificate of release • Towing and storage only if "in the interest of public safety” Vehicle two feet from curb No broken glass or items of value Immobilization, without impoundment, does not authorize an inventory search Thompson, 999 A.2d 616 (Pa. Super. 7/16/10) is overruled.

18. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430 (6/25/14) The digital contents of a mobile phone may not be accessed incident to an arrest of the phone’s owner. Permissible police conduct after discovery of a phone, incident to an arrest:             Examine the phone to insure there is no concealed weapon             Disable the phone’s automatic lock feature             Seize and secure the phone while seeking a warrant             Search the contents in a case of exigent circumstances

19. Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430 (6/25/14) Issues to be resolved:             Prior law is not overruled.  Searches of wallets and purses for physical evidence remain permitted. Digital data is different.             Applicability to tablets and laptops – mobile data storage devices             Will mobile data storage devices be different from containers in a vehicle?             Retention of and access to previously seized digital data (How do you return part of a hard drive?)

20. Wright, ___ A.3d ___ (Pa. Super. 8/29/14) • Seizure of phone – Probable cause required • Defendant arrested for murder; phone seized from nightstand • No blood stains on phone; no evidence that telephone had been used to communicate with victim on day of murder • Romantic relationship between victim and defendant did not constitute probable cause to seize phone • Removal of battery from phone did not constitute probable cause that contents were incriminating

21. Lyles, ___ Pa. ___, ___ A.3d ___ (7/21/14) • A request for identification is not a detention. • Commonwealth v. Au, 615 Pa. 330, 42 A.3d 1002 (4/26/12) • Writing down information does not restrain a suspect’s freedom of movement. • Officer testified that he did not believe that defendant was free to leave. However, the officer’s belief was never communicated to the defendant. The legal standard is an objective one and depends upon the reasonable impression conveyed to the person seized and not the subjective view of either the officers or the person being seized.