Category Archives: Criminal Law

PUBLIC INTOXICATION ON PRIVATE PROPERTY?

Q: If I am arrested for public drunkenness and disorderly conduct, can I fight it? I was on private property, was not read Miranda rights.

A: Miranda warnings do not apply if you were not interrogated. Yes, you can fight the case. You should talk to an attorney as there may be an alternative available for you. If you fight the case, hire a court reporter to record the testimony if it is not electronically recorded by the court. Generally, you cannot be convicted of public intoxication if the conduct was not done in public. If your actions on the private property were visible to the public, or audible to the public, then that is another story.

CAN AGREEMENT BETWEEN LAWYER AND DA BE CHANGED?

Q. Can a plea bargain at the preliminary hearing level be taken back if I signed it? I was charged with 2nd DUI on the 2nd tier, and also child endangerment and was offered a plea bargain, which I did sign. My lawyer told me the DA didn’t know about a new law. My question is what are my chances of losing the deal when I go to big court?

A: All I can tell you is that agreements between lawyers are enforceable and are usually honored. You should be asking your lawyer this question as he is familiar with your specific situation. The Assistant DA who offered the deal should honor it but he or she may be given orders not to do so by the supervisor, because the deal was premised on a mistake of the law. If the DA would try to rescind the agreement, your lawyer could file a motion with the judge to enforce the agreement. As I said, agreements between lawyers are enforceable and a mistake of the law is usually not considered to be a defense. It will probably work out.

Can my son be arrested for having $15K in his home while on parole?

Q. My son is on parole. He was working for a man doing renovations. The boss had marijuana shipped from another state to the empty house next to my sons home. When the boss went to get pkg police chased him and arrested him. He called my son during the car chase never telling him what was going on just to pick him up at the auto repair shop down the hill. When my son got there from the job site the boss was in hand cuffs etc. The police asked if they could search my sons home wherein they stopped him at the auto repair place. He said no but they said they would call his parole officer for permission so my son agreed. At his home the only thing found was approximately 15k which he has been saving over a period of 7 years. My son was not arrested and no charges at this point. They took money.

A. If the only evidence against your son is that 1) he knows the boss, 2) he lives near the house the drugs were found in, 3) he had 15k in his house and 4) he was present at the shop when the boss was arrested, he shouldn’t be arrested. If the boss implicates him, or other witnesses implicate he and the boss as co-conspirators, then it is possible he may get arrested. The police should have given your son a receipt for his money. If the police don’t arrest him after a reasonable amount of time, you can petition the court to return the money. Your son needs to see an attorney as soon as possible and not make statements to the police.

CAN COPS SEARCH HOUSE BASED ON ARRESTED PERSON’S WORD?

Q. Can the police search your house based on a person saying that you have something illegal in it? A car was being searched due to an attempted drug sale. Three people were in the car and they found a small amount of heroin. The driver, which is a user, had paraphernalia on her person and when she got arrested she told the police that the other two people who were in the car were drug dealers and told the police where they lived. The police searched their residence and found illegal possessions. Is it legal for the police to search their house based off a scared, user’s statement?

A. Great question! Search and seizure law is complicated and tricky. We defense attorneys start with the premise that every search of a dwelling must be done by warrant. This is what the PA and US Constitutions say. However, there are many exceptions and the law is always changing. In your situation it comes down to how reliable was the source of the information (the user who was arrested) and how reliable was it that after her information was given, drugs would be found in the residence at the time they searched it. The real issue is whether or not this witness was credible, and if not entirely credible, was there other corroborating evidence to establish her as credible? Credible enough to search a residence without a warrant? I am not so sure about that. I don’t know all the facts, but I think you should meet with an attorney who is good with suppression/search and seizure law to look closely at the facts. From this limited information it sounds like the search could be challenged. Make sure you have an attorney at your preliminary hearing and have the testimony recorded.

COPS FIND MARIJUANA IN BACK PACK, WHAT WILL HAPPEN?

Q: Me and some friends were caught smoking but after the fact so we were high but no evidence of weed. Then he pressures my other friend for consent to search the car and he did. But while doing that he went through my backpack found my visine and kept it. Then my other friend’s backpack was searched and the vial was discovered. I was free to go just without visine while my other friend was cuffed and drove to the station. What will my friend be charged with?

A: Your friend may have an illegal search issue and want to challenge the case. He would need to discuss the details and what is involved with a lawyer. As long as he is not charged with a felony possession with intent to deliver, he can probably receive a first time offender’s outcome, called Probation Without Verdict. If he accepts this, he is put on probation for a period of time, usually anywhere from 90 days to a year. If he doesn’t screw up in that period of probation, his arrest record will be expunged by the Commonwealth. There is also a chance for a withdrawal at the District Justice level if he completes a drug program, and if the DA and police are willing. An attorney can guide him through this.

Police Search of Dorm Room

Q.        The cops showed up to my on campus dorm room while I was not there. My roommate called me and I came. They had already confiscated paraphernalia and a small amount of marijuana from my roommate. I arrived and was told that the officer would stay in my room until a warrant was made, leaving me with no choice but to consent to the search. They found under 30 grams and a small digital scale in my top drawer and have charged me with possession and a paraphernalia charge. Do I have any defenses? I told them that it was left there by someone who my roommate had let in earlier that day and I didn’t know who it was. Could I possibly claim unwitting or fleeting possession?

A.        You should get an attorney, soon. I don’t know all the facts but if you want to fight it, you may have an illegal search defense. Again, an attorney would have to hear all the facts to assess whether there was a constitutional violation. The possible defense that the drugs did not belong to you even though they were found in your drawer, is a more difficult challenge. At this point you don’t even know what your roomate has said or will say. If you are a first time offender, you may get out of this without a record-that is good news. The bad news is, is that you may get booted off campus or from school altogether.

No Witness for the Prosecution

Q. Will my charge be dropped since my accuser is a fugitive on the run and won’t show up for the trial?

A: You should not plead guilty or waive your case to court without the accuser being present and ready and willing to testify. Do not be persuaded into taking a deal until you see the alleged victim slither into the courtroom AND he is willing to testify against you. Having an attorney would help.

Statute of Limitations, Drug Charges

Q.        What’s the statue of limitations of getting rearrested and recharged for a drug case if it was thrown out? Is there a statue of limitations on getting recharged on a drug case if it was thrown out?

A.        If the case was withdrawn or nolle prossed (adjudicated), it can be filed again . If it was dismissed or you were adjudicated not guilty, it cannot be filed again. If it can be re-filed, the statute of limitations could be 2 or it could be 5 years, depending on the weight of the narcotics. You may have a defense under Rule of Criminal Procedure 109 and 110 based on what is similar to a double jeopardy argument if the case was adjudicated.

Probation violation, dirty urine

Q: Violating probation with a dirty urine?My fiance caught his first drug case in 2011. They decided to give him 5years of probation . He had to see his probation officer as usual & he kept him for failed drug test & fail to complete some . This is his first violation…Whats qonna happen ? Can he do time ??s that mostly likely.

A:  Dirty urines, not reporting, changing of an address without notification, are all technical violations. This means they are minor. The PO can do anything from bump up his D&A treatment or urine screening to asking the judge for a warrant and detaining him in jail. It depends on the PO and the judge. Given you are in a large county, i would think the former is more likely.