Category Archives: Uncategorized

HOW DOES ACCEPTANCE INTO THE ARD PROGRAM AFFECT POTENTIAL 1983 CIVIL RIGHTS CLAIMS

When an individual has been arrested and in the process his civil rights have been violated, he has the dilemma of navigating pending criminal charges and preserving any potential civil rights claim under 42 U.S.C. § 1983.

In Heck v. Humphrey, 512 U.S. 477, 478, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court confronted “the question [of] whether a state prisoner may bring a § 1983 civil rights suit for damages, and challenge the constitutionality of his conviction.  The Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Pursuant to Heck, courts must dismiss a § 1983 claim that, if successful, would “necessarily imply the invalidity of [the plaintiff’s] conviction or sentence,” unless the plaintiff can demonstrate that the conviction or sentence “has already been invalidated.” In other words, if your are convicted of the underlying criminal charge, and the conviction remains valid, you can not bring a claim for violation of your civil rights under §1983 as it would contradict the validity of the conviction.

However, what happens to an individual’s potential civil rights claim if he does not plead guilty or is not convicted but instead  agrees to a lesser adjudication that does not amount to a conviction in a criminal proceeding.

All counties in Pennsylvania offer Accelerated Rehabilitative Disposition ”ARD”. ARD is a pre-trial diversion program whose primary purpose is the rehabilitation of the offender and whose secondary purpose is the prompt disposition of charges, eliminating the need for costly and time-consuming trials or other court proceedings. Essentially, if you are charged with relatively minor crimes of a non-violent nature, i.e. DUI, minor drug possession, disorderly conduct, and have no previous criminal record, you are offered the opportunity to enter into the ARD Program. The ARD program is intended to encourage offenders to make a fresh start after participation in a rehabilitative program and offers them the possibility of a clean record if they successfully complete the program. if you are accepted into the ARD program your case is essentially stayed for a period of time. During the time, the court will impose certain requirements that you must complete within that time. If the requirements are completed by the end of the ARD period, the Court will then notify you that your case is eligible to be dismissed completely and erased from your criminal record.

Often individuals with potential § 1983 claims are faced with the decision of entering into the ARD program either because they may have some level responsibility or because it may be the least expensive way of dealing with the criminal charges. If given the choice of entering into the ARD program and having no criminal record upon completion or going through an expensive trial and taking a chance at being found guilty, many people will chose ARD regardless of guilt or innocence.

Previously, the Third Circuit interpreted Heck to require a § 1983 plaintiff to show the prior criminal proceeding terminated in his favor. Gilles v. Davis, 427 F.3d 197, 209 (3d Cir.2005). Applying that rule, Gilles held that Heck barred the § 1983 First Amendment claims of a plaintiff whose underlying criminal charge had been resolved through ARD, because the ARD program is not a favorable termination under Heck.

More recent decisions have question whether Gilles is still good law.

In Muhammad ex rel. J. S. vs. Abignton Tp, Police Dept., 37 F.Supp 3rd 746 (E.D. Pa, 2014), the U.S. District Court for the Eastern District of Pennsylvania questioned Gilles’ application of Heck.  First, the Court found that Heck itself did not require a § 1983 plaintiff to demonstrate a favorable termination of his underlying criminal proceedings. The U.S. District Court also cited the Supreme Court decision two years after Gilles in Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which clarified that Heck applies “only when there exists a conviction or sentence that has not been invalidated, that is to say, an outstanding criminal judgment” or an “extant conviction,” not an “anticipated future conviction.”  Heck does not bar suit when there is in existence no criminal conviction that the cause of action would impugn. A § 1983 plaintiff may bring suit while criminal proceedings are ongoing, before any conviction—or other disposition has occurred. Wallace thus eliminated any possible reading of Heck as requiring “favorable termination” of the underlying criminal proceedings, because it clarified that Heck does not require termination at all. Following Wallace, the Tenth and Eleventh Circuits have found Heck inapplicable where a plaintiff’s underlying criminal proceeding was resolved through a pre-trial diversion programs. See McClish v. Nugent, 483 F.3d 1231 (11th Cir.2007); Vasquez Arroyo v. Starks, 589 F.3d 1091 (10th Cir.2009).

The Third Circuit has yet to reconsidered Gilles in light of Wallace. However, the Muhammad Court found Gilles to be more limited than it first appears.  The Court found  that Gilles interpreted Heck to have held that “a § 1983 malicious prosecution claim was subject to the common law requirement that the plaintiff show the prior criminal proceeding terminated in his favor applied this requirement on the basis that the plaintiff’s § 1983 claim sounded in malicious prosecution:”  However, the favorable-termination requirement is not be relevant to all § 1983 claims.  The Court found that the reasoning and holding of Gilles appears limited to § 1983 claims that, like malicious prosecution, hinge on the plaintiff’s innocence of the criminal charge. Where the individual does not necessarily contest probable cause for his arrest (as is possible in § 1983 claims for selective prosecution or excessive force), the claims are not barred by the Gilles’ decision since Gilles did not consider those claims and, therefore, it’s reasoning does not apply.

The U.S District Court in Muhammad found that the U.S. Supreme Court clearly held that Heck bars only those claims that would invalidate an existing conviction, and as there was no conviction (juvenile entered into a consent decree), Gilles (to the extent it remains good law) was limited to § 1983 claims that contest probable cause for an underlying criminal charge.

Leave a comment

Filed under Constitutional Law, Uncategorized

Undetectable Firearms and 3D Printing

Special Guest Author – Rick Vasquez of Rick Vasquez Firearms LLC and

former ATF Acting Chief of the Firearms Technology Branch

If you had zero knowledge of firearms as many talking heads on the media display, you might believe there is a new phenomenon called 3D printing of guns. Additionally, you may believe polymer firearms were recently designed, and thirdly, you would likely have no idea what the Undetectable Firearm Act is. With this lack of knowledge, you may spew disinformation about how modern firearms are undetectable and easily bypass all security elements.

Polymer firearms have been around several years. The first successful firearm with a polymer receiver was the H&K VP70 pistol. This pistol was introduced circa 1970. Then, of course, the Glock which took polymer firearms to a new height was introduced circa 1980-1982 ( https://eu.glock.com/en/explore-glock/glock-history). After this date, the use of polymers in firearm receivers has become common place.

During the 1980’s, the hysteria on plastic guns played out in the media exactly as it is today. There was hysteria over the ability of a polymer firearm to pass through a metal detector. In 1986, there was a supposed incident at the Atlanta Airport in which a Glock passed the screening, and it created media hysteria. It was later discovered that the screening machine was not properly being used, but why waste a good story?

The media began covering plastic and undetectable guns that could not be discovered with airport equipment. I have provided a few links to stories from the 1980s on undetectable firearms. (Footnote 1) Of course, a good lawmaker could not let misinformation go without passing an anti-gun law. Because of the issue created by the media, the Undetectable Firearm Act was passed in 1988. (Footnote 2)  Imagine if this law had made plastic firearms unlawful, what the historical impact would have been to our military and law enforcement?

But what can Congress do to alleviate a law they proposed impacting manufacturers in heavy democrat districts in 1988? If the law prohibits polymer firearms, manufacturers like Glock and S&W would be out of business. This is easy! Congress changes the meaning of a firearm receiver in the new statute. In the Gun Control Act, Title 18 U.S.C. section 921 (a)(3) firearm is defined as (3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device… Such term do not include an antique firearm.

The undetectable statute is listed in its’ entirety below but for comparison to the definition of a firearm receiver already in the Gun Control Act, the pertinent parts are here: Title 18, U.S.C., Chapter 44, Section 922 (p)(1) It shall be unlawful for any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm–

(A) that, after removal of grips, stocks, and magazines, is not as

detectable as the Security Exemplar, by walk-through metal detectors calibrated and operated to detect the Security Exemplar; or

(B) any major component of which, when subjected to inspection by the types of x-ray machines commonly used at airports, does not generate an image that accurately depicts the shape of the component. Barium sulfate or other compounds may be used in the fabrication of the component.

(2) For purposes of this subsection –

(A) the term “firearm” does not include the frame or receiver of any such weapon;

(B) the term “major component” means, with respect to a firearm, the barrel, the slide or cylinder, or the frame or receiver of the firearm; and …

In the Gun Control Act, the firearm frame is all of the following: the housing, the registered part, the part that must be serialized, and the part a background check must be conducted on for a lawful transfer. Under the Undetectable Firearm Act the receiver as defined in the GCA is not restricted to be made of plastic or polymer or any non-metallic substance. The Undetectable Firearms Act was written to only prohibit the ability of a slide or barrel to be made that does not have the same detectability as the “security exemplar.”

Recently Government experts have been informing the media that a firearm must have the same amount of metal as a security exemplar made of 3.7 ounces of PH 17- 4 stainless steel. This is incorrect, the law does not require that the slide or barrel possess at least 3.7 ounces of PH17-4 stainless steel, the law requires the handgun must be as detectable under the equipment used in 1988, as the security exemplar. This is the misinformation that is being passed through the media. Whether they are getting the information through lawmakers or law enforcement bureaus, the research is not being conducted.

This watered-down version of the law was passed to protect manufacturers in heavy democrat voting districts and then appear that they are protecting citizens against terrorist. In 1988 and today, polymer firearms are made with metal slides and barrels. These polymer receivers do not have 3.7 ounces of PF 17-4 stainless or other metal in the “receiver” that is regulated in section 921(a)(3).

 

3D Misunderstanding:

Of course, once Cody Wilson made the Liberator pistol using a 3d printer and plastic, the antigun hysteria has reawakened. Numerous government agencies bought 3D printers and made a Liberator pistol with a file that was uploaded to the internet by Cody Wilson.

Then they did their own testing. The testing shows that the plastic barrel may withstand one or a few rounds of .380 caliber ammunition.3 Numerous other agencies made AR15 lower receivers and also tested them. With affordable and available 3D printing, the AR 15 receiver is a more viable firearm to make using a 3D printer. The difference in the AR receiver is that the receiver is not the part of the firearm that accepts the chamber pressure. The chamber pressure is captured in the steel barrel in the upper assembly. Of course, there are more expensive aluminum and steel 3D printers available, but the hobbyists are not going to purchase these to make a firearm. These versions of 3D printers will eventually be cost effective as technology advances.

Remember, the Liberator is a one-shot pistol that must be disassembled to be reloaded. The World Trade Center was destroyed by terrorists using boxcutters. Does the technology at the airport have the capability to pick up boxcutters?

The report prepared by a law enforcement agency on the Liberator informed Cody Wilson that if he made the Liberator pistol, he must install a 3.7 ounce piece of metal into the receiver. The following instruction was given:

The steel block recommendation reads as follows:

“Once the frame is finished, epoxy a 1.19×1.19×0.99″ block of steel in the 1.2×1.2×1.0″ hole in front of the trigger guard. Add the bottom cover over the metal if you don’t want it to show.

Once the epoxy has dried [sic], the steel is no longer removable, and is an integral part of the frame. Now your gun has 6 ounces of steel and is thus considered a ‘detectable’ firearm.” This is statutorily incorrect as 922(p) does not consider the firearm receiver the receiver. It considers the barrel and slide assembly the detectable portions. Additionally, this block of steel is not in the shape of a security exemplar and would not give off the satisfactory image required by the statute.

Cody Wilson should have been properly informed that the Liberator, having a smooth bore, is an “any other weapon” (AOW) under the National Firearms Act. If he were a licensed manufacturer of firearms and had paid the special occupational tax to make NFA weapons, he could properly register the Liberator as an “AOW”. Regardless of the registration, the barrel assembly must comply with 922(p) and have as much detectability as a 3.7-ounce 17-4 PH stainless steel security exemplar.

Since the invention of plastic firearms, there have been other designs of firearm receivers that could create an undetectable concern. Firearms manufacturers are currently making an internal metal chassis that is considered the firearm, and the polymer grip is only a housing. The following link shows a 80% pistol chassis for a Sig pistol for sale. https://www.1776supplyco.com/product/80-p320-pistol-frame/. The chassis, being the receiver, does not weigh 3.5 ounces nor will it show the same resonance as the security exemplar. Another example of a firearm that can be made with simple tools and with the receiver not being made of metal is the after-market Glock 80% receiver. https://www.glockstore.com/Spectre-Polymer80-Compact-Textured. These firearms are more available and easier to make than a 3D printed Liberator.

The real issue is the fact that our lawmakers and senior law enforcement heads do not know the subject or the laws that they pass. When asked what they are doing to fix a problem that does not exist, they create media hysteria by commenting with bizarre explanations.

Technology is advancing daily. Don’t view technology changing in a few years or even months. Think of it changing in a matter of days. The technology being used by the firearms industry is very critical to all aspects of its industry. All firearms built or provided for our military are developed by private firearms manufacturers. Our military and law enforcement do not have a firearm making capability. Therefore, firearms manufacturers, in an effort to sell their product to our military, invest hundreds of millions of dollars developing technology that benefits all sectors of U.S. manufacturing.

3D printing is a perfect example of advancing technology that was not being used to it’s potential in the manufacturing industry. Until Cody Wilson built the Liberator pistol, very few people even knew what 3D printing was or that the technology existed. Many sectors of all industry and manufacturing are now using 3D printing technology for development of different products. The cost of rapid prototyping and making new designs is decreasing rapidly.

Modern manufacturing is moving forward with new technologies and instead of trying to impede the progress by our lawmakers and law enforcement, people need to be looking for methods of detection. In 2003, I visited the Transportation Safety Administration Technology Center in Atlantic City, NJ. I met with senior personnel and discussed the types of technology that could detect supposed undetectable firearms and other undetectable items. At the time, the magnetometer that ATF owned for testing was so outdated, it could not be repaired and had not been used in several years.

In 2003, I received a lot of information regarding detection equipment and a lot of information regarding magnetometers. All of this was shared with management. Magnetometers that were in use by TSA in 2003 were technologically superior to the one that was used at the same time by FTB.   What technology is available in 2018? Previous magnetometers, as the model that FTB owned, were required to be able to detect a set of 3 specific weapons. The equipment that TSA had was sensitive enough to detect all polymer firearms, polymer knives and other weapons. Additionally, current magnetometers are calibrated on a daily basis.

Instead of fighting technology, embrace it. Use technology to defend against all threats and use the best detecting machines at the airport. A razor-sharp ceramic knife is a far superior and deadly weapon than a one or two-shot firearm that must be disassembled to be reloaded. If our airports do not have the proper equipment to detect these types of items, then our law makers should be fired. In closing, just imagine the historical impact on our law enforcement and military if our law makers had outlawed the use of plastic in the manufacturing of firearms.

 

Rick Vasquez

Former Assistant Chief/Acting Chief

ATF Firearms Technology Branch Current

Firearms Industry Advisor

 

http://articles.latimes.com/1988-04-26/news/mn-1594_1_plastic-gun https://www.washingtonpost.com/archive/politics/1986/05/15/the-deadly-truth-about-plastic- guns/d5d14631-ed41-4fb4-bf8c-63098269cabc/?utm_term=.1ad13948a40e.

2 https://www.congress.gov/bill/100th-congress/house-bill/4445/all-info

3 https://www.wired.com/story/a-landmark-legal-shift-opens-pandoras-box-for-diy-guns/

Attachment:

Title 18, U.S.C., Chapter 44, Section 922 (p)(1) It shall be unlawful for any person to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm –

(A) that, after removal of grips, stocks, and magazines, is not as detectable as the Security Exemplar, by walk-through metal detectors calibrated and operated to detect the Security Exemplar; or

(B) any major component of which, when subjected to inspection by the types of x-ray machines commonly used at airports, does not generate an image that accurately depicts the shape of the Barium sulfate or other compounds may be used in the fabrication of the component.

(2) For purposes of this subsection –

(A) the term “firearm” does not include the frame or receiver of any such weapon;

(B) the term “major component” means, with respect to a firearm, the barrel, the slide or cylinder, or the frame or receiver of the firearm; and

(C) the term “Security Exemplar” means an object, to be fabricated at the direction of the Secretary, that is –

(i)constructed of, during the 12-month period beginning on the date of the enactment of this subsection, 3.7 ounces of material type 17-4 PH stainless steel in a shape resembling a handgun; and

(ii) suitable for testing and calibrating metal detectors:

Provided, however, That at the close of such 12-month period, and at appropriate times thereafter the Secretary shall promulgate regulations to permit the manufacture, importation, sale, shipment, delivery, possession, transfer, or receipt of firearms previously prohibited under this subparagraph that are as detectable as a “Security Exemplar” which contains 3.7 ounces of material type 17-4 PH stainless steel, in a shape resembling a handgun, or such lesser amount as is detectable in view of advances in state-of-the-art developments in weapons detection technology.

 

 

 

1 Comment

Filed under ATF, Firearms Law, Uncategorized

More Pennsylvania Cities Decriminalize Marijuana Despite State Law.

With the noted exception of the current Attorney General, there is a growing acceptance of legalize use of marijuana in the United States. Thirty of the fifty states have legalized marijuana for either medical and/or recreational use. As the laws with regards to marijuana use continue to change state by state, the states which have legalized medical and/or recreational marijuana must navigate the conflict between their state law and Federal law which continues to classify marijuana as a prohibited Schedule 1 narcotic – a “harmful substance of no known medical benefit.”

The classification of marijuana as a schedule 1 drug is antiquated and patently false. However, perception and laws are hard to change. Change usually begins at a grass roots level. Within Pennsylvania, several cities have started to pass local ordinances that have decriminalized marijuana. Philadelphia, Pittsburgh, Harrisburg, Allentown, York, and, most recently, Bethlehem have all passed local ordinances essentially reducing the punishment for possession of small amounts of marijuana for personal use, typically 30 grams or less, from a crime to a summary offense subject to a fine.

These local ordinances create a perceived conflict with Pennsylvania State laws. Under Pennsylvania’s Controlled Substance, Drug Device and Cosmetic Act (“CSA”), 35 P.S. §780-113 (a)(16), no person may knowingly possess a controlled substance without a lawful prescription from a doctor. Under the CSA, marijuana is also classified a Schedule 1 controlled substance. Pennsylvania’s penalty for possession of 30 grams or less of flower or 8 grams or less of hashish is a misdemeanor punishable by 30 days in jail and/or a $500 fine. See 35 P.S. §780-113 (a)(31)(i). Possession of more than 30 grams of flower or more than 8 grams of hashish is a misdemeanor with a maximum penalty of 6-12 months incarceration and a $5,000 fine.

So which law applies and how severe can you be punished for possession of a small amount marijuana in theses cities that have decriminalized marijuana. Typically, when there is a conflict between state law and local ordinances, state law preempts the local ordinance. Some local law enforcement authority have argued the CSA preempts all of the local ordinances as they are attempts to alter the penalties under the CSA.

In Holt’s Cigar Co. v. City of Philadelphia, 608 Pa. 146 (2011), the Pennsylvania Supreme Court rejected the argument that the Controlled Substance Act prohibits local regulation in order to create uniformity in the regulation of controlled substances. In Holt’s Cigar, the Supreme Court held that the Act does not prohibit local regulations of controlled substances unless there is an “irreconcilable conflict” between the CSA and the local regulation. The proper standard for determining whether the local ordinances “irreconcilably conflicts” with the Controlled Substances Act was stated by the Supreme Court in Holt’s Cigar.

[I]t has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.

Holt’s Cigar, 608 Pa. at 154. (emphasis added).

The Holt’s Cigar decision makes it clear that local laws with a different penalty do not create an irreconcilable conflict, as long as the local law does not permit what the Act forbids or forbid what the Act permits. The Supreme Court stated that the the nature or severity of the penalties imposed is not determinative and does not eliminate the conflict arising from the discrepancy with respect to mens rea for a particular course of proscribed conduct.” Id.at 165 (emphasis added).

While Holt’s Cigar decision provides some clarity as to whether local municipalities may enact ordinances decriminalizing marijuana, person may still be punished under state laws. Usually, it will depend on the law enforcement authority that arrests and prosecutes the individual. If you are arrested by a state trooper as opposed to the local municipal police, there is a good chance you will be charged with a violation of state law. It will then be up to the local courts and prosecutors on how to proceed with charges and punishment

An interesting enforcement scenario exists in the city of Bethlehem. On June 26, 2018, the Mayor of Bethlehem signed into law Bill No. 16-2018, creating a summary offense for possession of up to 30 grams of marijuana (or eight grams of hashish), possession of marijuana paraphernalia and personal use of marijuana. Under the new law, there is a fine of $25 for a first offense, $50 for a second offense, $100 for a third offense, and $150 fourth offenses or eight hours of community service.

The problem arises with enforcement. The City of Bethlehem is divided between two counties, Lehigh and Northampton. The District Attorney of Lehigh County maintains the position that the CSA preempts local ordinance despite the fact that both Allentown and now Bethlehem – Lehigh County’s largest cities – have decriminalized possession of under 30 grams of marijuana. The District Attorney of Northampton County maintains the opposite position and will enforce the local ordinances. So it is possible you could be punished differently depending on where you are caught in Bethlehem with marijuana.

Leave a comment

Filed under Criminal Law, Marijuana Law, Uncategorized

The Supreme Court recognizes privacy right to cell phone location history.

On May 22, 2018, the U.S. Supreme Court issued an important decision extending the Fourth Amendment right against unlawful search and seizure into the digital age. In Thomas Ivory Carpenter v. United States, the Court sided with the privacy rights of cellphone users over law enforcement using private tracking data compiled and saved by cell phone companies. At issue was whether the Fourth Amendment required law enforcement to obtain a warrant before accessing cell phone location history from cell phone service providers.

The Supreme Court recognized the importance and prominence of cell phones in an individual’s daily life and the right to privacy of the sensitive information generated by the cell phone’s use.

The Court stated that there are 396 million cell phone service accounts in the United States for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites” mounted on towers, light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Cell phones, smartphones, tablets, and other devices tap into the wireless network several times a minute whenever their signal is on. Each time the smart device connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information. Carriers retained CSLI for the start and end of incoming calls,text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.

In December of 2010, there were a series of robberies in Michigan and Ohio of cell phones, ironically. Several cell phones stores were robbed of their cell phones at gunpoint. Eventually, the FBI arrested four men suspected of the robberies. One of the men confessed and provided names and cell phone numbers of accomplices including the petitioner, Timothy Carpenter.

Prosecutors applied for court orders under the Stored Communications Act (“SCA”) to obtain cell phone records for Carpenter and several other suspects. The SCA permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” The SCA stops short of requiring that prosecutors demonstrate probable cause, which is necessary to obtain a warrant.

Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers to disclose the CSLI for Carpenter’s telephone at call origination and at call termination for incoming and outgoing calls during the four-month period when the string of robberies occurred.

Law enforcement was able to track Carpenter’s locations and connect Carpenter to the crimes by obtaining more than 100 days’ worth of his smartphone location data records without a warrant. The location data records placed his phone in over 12,000 locations including when he was at church and whether or not he spent the night at home.

Before his trial, Carpenter argued that obtaining the records constituted a Fourth Amendment search, and therefore the police should have needed a warrant. His motion was denied, and the Sixth Circuit Court of Appeals later upheld the case.

The Supreme Court reversed and remanded with Chief Justice Roberts providing the deciding vote and writing the majority opinion.

The Court held that the acquisition of Carpenter’s CSLI records was a Fourth Amendment search. The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Thus, when an individual “seeks to preserve some thing as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.

The Court further held that the digital data at issue, personal location information maintained by a third party, does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set of cases addressing a person’s expectation of privacy in his physical location and movements. The other set of cases addresses a person’s expectation of privacy in information voluntarily turned over to third parties.

The third-party doctrine, as first set forth in United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith v. Maryland, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company) holds that information customers voluntarily provide to a third party is outside the bounds of Fourth Amendment protections and, therefore, law enforcement does not need a warrant in order to access that information.

The Supreme Court stated that the third-party doctrine partly does not apply given “the nature of the particular documents sought” and “legitimate ‘expectation of privacy’ concerning their contents.” The Supreme Court cited prior case law where the court had already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Additionally, the Supreme Court recognized in many way CSLI is not voluntarily provided by the cell phone users but automatically obtained when the cell phone is used in some form.

The Supreme Court found the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the SCA, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation” which falls well short of the probable cause required for a warrant.

1 Comment

Filed under Constitutional Law, Uncategorized

Supreme Court declines to extend automobile exception to Fourth Amendment to vehicles parked in driveways or curtilage of home.

In yet another victory for Fourth Amendment advocates, the Supreme Court on May 29, 2018 ruled against a warrantless search and examination of motorcycle under a tarp in the driveway of a home.   In the matter of Ryan Austin Collins vs. Virginia, No. 16-1027, the Court in a 8-1 decision reversed the lower court’s decision which upheld a warrantless search of motorcycle under the so-called automobile exception to the Fourth Amendment.

An orange and black motorcycle was believed to have been stolen and in the possession of Mr. Collins. Apparently Mr. Collins was proud of his accomplishment and posted photos of the stolen motorcycle parked in his driveway on his Facebook profile. The police discovered the photos on Mr. Collins’ Facebook profile, drove to his house and observed what appeared to be the motorcycle under a tarp parked in Mr. Collin’s driveway. The arresting police officer acting without a search warrant, walked to the top of the driveway, removed the tarp, confirmed that it was the stolen motorcycle, returned the tarp, and waited for Mr. Collins to return.

Upon his return Mr. Collins was arrested and charged with receiving stolen property. At trial, Mr. Collins sought to suppress the evidence on the grounds that the police had violated his Fourth Amendment rights when they had trespassed on Mr. Collins’s house curtilage (driveway) to conduct a warrantless search. Mr. Collins was convicted of receiving stolen property. The conviction was affirmed by the Virginia Court of Appeals who found “numerous exigencies justified both the entry onto the property and the moving of the tarp to view the motorcycle and record its identification number.” The Virginia Supreme Court also affirmed the conviction holding that the warrantless search was justified under the so-called automobile exception to the Fourth Amendment. The State Supreme Court held that the police officer had probable cause to believe that the motorcycle was contraband, and that the warrantless search was justified.

The central question before the Supreme Court was whether the so-called automobile exception to the Fourth Amendment, which allows the police certain latitude to search vehicles on public streets without a warrant, also allows the police to walk up a driveway without a warrant and search a vehicle parked in the area near a house.

The so-called automobile exception, first articulated in Carroll v. United States, 267 U.S. 132 (1925), allows police to search a car without a warrant if the car is “readily mobile” and they have probable cause to believe that it contains evidence of a crime.

The Court began its Fourth Amendment discussion by examining the intersecting case law of the so-called automobile exception to the warrant requirement with case law extending the protection against warrantless searches to the curtilage of a home. The “curtilage” of a home being the area immediately surrounding the house, where residents expect privacy.

In its near unanimous opinion written by Justus Sonia Sotomayor, the Court held that the driveway where Mr. Collins’ motorcycle was parked was part of the curtilage protected by the Fourth Amendment. Justice Sotomayor further wrote, “To allow an officer to rely on the automobile exception to gain entry to a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,”

The court explained that the justification for the automobile exception doesn’t consider a resident’s privacy interest in his home and its curtilage at all; rather, the rationale rests on the twin ideas that cars can easily be moved and are subject to regulation simply by virtue of being on the roads.

The stated that there are no Supreme Court’s cases that indicates the automobile exception allows a police officer to enter the home or its curtilage without a warrant to search a vehicle – if anything, the court has emphasized the need to treat “automobiles differently from houses.”

The sole dissent in the case was filed by Justice Samuel Alito, who stated that “The Fourth Amendment prohibits ‘unreasonable’ searches,” and that, “What the police did in this case was entirely reasonable.”

2 Comments

Filed under Constitutional Law, Uncategorized

U.S. Supreme Court Finds That An Unauthorized Driver In Lawful Possession of Rental Car Has A Right To Privacy

On May 14, 2018, the United States Supreme Court held that people who borrow rental cars from friends are afforded the same protections against unlawful searches as the authorized driver. In the matter of Terrence Byrd v. United States, 2018 WL 2186175, the Supreme Court justices unanimously held “ the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy”.

In September of 2014, Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the rental car which had been rented by his fiancée, Latasha Reed in Wayne, New Jersey. Reed rented the car with Byrd present but failed to list Byrd as authorized driver on the rental agreement. The rental agreement specifically stated that “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.”

Shortly after Reed rented the car, Byrd returned with the car to his home in Patterson, New Jersey to get his belongings and later departed in the car alone for Pittsburgh, Pennsylvania. After driving three hours, Byrd was stopped by Pennsylvania Troopers on Rt. 81, near Harrisburg, Pennsylvania.

The Troopers became suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Based on these observations, the Troopers decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction.

In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. The Troopers discovered that Byrd had identification under two different possible alias. The Troopers further discovered that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant for a probation violation in New Jersey. Byrd then revealed he had a “blunt” in the car and offered to retrieve it for them. The Troopers declined Byrd’s offer and continued to seek consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The Troopers began a thorough search of the car and trunk. In the trunk, the Troopers found a laundry bag containing body armor and found 49 bricks of heroin.

The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed.

The Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue . . . and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle.”

In its Opinion, the Supreme Court recognized that one who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it, but it is more difficult to define and delineate the legitimate expectations of privacy of others. The Court stated that a person does not always need to have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, the Supreme Court also noted that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.”

The Supreme Court explained that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. The Supreme Court further noted that the two concepts in cases like Byrd’s case are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”

In rejecting the Government’s position that only authorized drivers of rental cars have expectations of privacy in those vehicles, the Court saw no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it.

The central inquiry was whether Byrd had lawful possession of the car.  The Court reasoned that under some circumstances ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. A car thief would not have a reasonable expectation of privacy in a stolen car. However, Byrd was a permissive driver of the rental car and therefore, had the right to exclude others and a reasonable expectation of privacy.

The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to further consider two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

Attorneys arguing on behalf of Byrd argued that 115 million car rentals take place annually in the United States and if the government won, police would have an incentive to pull over a rental car driver who commits a traffic violation because police will know they can search the car if the driver isn’t on the rental agreement.

2 Comments

Filed under Uncategorized, Constitutional Law

PA Attorney General Reviews Reciprocity Agreements and Nixes Virginia

On Monday, PA Attorney General Josh Shapiro held a press conference wherein he “announced his office ha[d] completed an exhaustive review of concealed carry reciprocity agreements with all 49 other states, as required under Pennsylvania law.” Notably, the Attorney General’s website has been updated with a handy chart.

2000px-Seal_of_the_Attorney_General_of_Pennsylvania.svg

The announcement specified that Pennsylvania now recognizes the licenses of 29 other states (previously it was 28). Notably, Idaho and Alabama were added to the recognized states. However, Virginia was removed. As of May 16, 2018, Virginia residents will no longer be able to carry in Pennsylvania pursuant to a Virginia Concealed Handgun Permit.

Pouring salt into an already open wound, the Attorney General has also specified that non-resident permits will no longer be recognized in PA. Which means that in order to lawfully carry a concealed firearm in Pennsylvania, according to the Attorney General, you must be a resident of the state which has issued the license and be over twenty-one years of age.

There are two manners in which Pennsylvania recognizes reciprocity. The first is found in 18 Pa.C.S. § 6106(b)(15) and allows the Attorney General to recognize, without a written agreement, another state’s license. This is predicated on the condition that the other state recognizes Pennsylvania License to Carry Firearms (“LTCF”) and that the laws governing firearms in that state are sufficiently similar to Pennsylvania’s.

The other manner is by written agreement. 18 Pa.C.S. § 6019(k)(1) provides:

The Attorney General shall have the power and duty to enter into reciprocity agreements with other states providing for the mutual recognition of a license to carry a firearm issued by the Commonwealth and a license or permit to carry a firearm issued by the other state. To carry out this duty, the Attorney General is authorized to negotiate reciprocity agreements and grant recognition of a license or permit to carry a firearm issued by another state.

Virginia and Pennsylvania had entered into a written reciprocity agreement on January 3, 2007. The agreement was amended on March 15, 2013 during the tenure of disgraced former Attorney General, now convicted felon, Kathleen Kane. Notably, the statute is silent as to the ability of the Attorney General to rescind a reciprocity agreement. However, that does not appear to have stopped Attorney General Shapiro.

Moreover, Section 6109(k)(2) requires that “[t]he Attorney General shall report to the General Assembly within 180 days of the effective date of this paragraph and annually thereafter concerning the agreements which have been consummated under this subsection.” (emphasis added). Based on the plain language of the statute, it would seem the General Assembly wished to be apprised of the states with which the Attorney General entered into written reciprocity agreements on an annual basis. Further, this would imply that if the General Assembly believed the agreement to be inappropriate, it could act to revoke its status, rather than leaving that to the discretion of the Attorney General.

Below is a list of states that Pennsylvania recognizes the permits of. You can find more information in the PDF provided by the Office of the Attorney General here.

Screen Shot 2018-04-18 at 6.53.49 PM

screen-shot-2016-12-14-at-8-54-53-pm
Did you find this blog article helpful or informative? Be sure to pass it along to a friend who may benefit from the information by using the buttons below. Don’t forget to like Firearms Industry Consulting Group on Facebook by clicking the “Like” button on the right.

4 Comments

Filed under Firearms Law, Pennsylvania Firearms Law, Uncategorized