Over the summer, the Pennsylvania Supreme Court struck down the existing law that imposes mandatory minimum sentencing for anyone charged with delivering or possessing with intent to deliver drugs near a school zone. Originally, the minimum sentence requirement was two years in jail for anyone caught within 1,000 feet of a school.
As a criminal defense attorney, I have represented countless people charged with crimes ranging from very minor offenses to violent felonies. In almost all cases, I will have to answer questions put to me by my clients about the way they were treated by the police. More often than not, my answers surprise my clients who typically have some serious misconceptions about what the police are and are not allowed to do. Not only have I devoted my professional career to understanding the permissible contours of a police-citizen encounter, I also had the privilege of teaching a class on this material at Tufts University , a prestigious school outside of Boston, Massachusetts. This article is the first in a series of articles discussing what police are and are not allowed to do.
When the police ask me if they can search my person/bag/car/home, do I have to let them?
As a criminal defense attorney here in State College, Pennsylvania, I have represented countless individuals who have been charged with the possession of illegal items found on their person, in bags they were carrying, in their vehicles, or in their homes. These items include drugs, drug paraphernalia, stolen or unlicensed firearms, instruments of crime, stolen property, etc. In some cases, these items are recovered following the execution of a search warrant or the arrest of an individual (after police arrest you, they are allowed to search your person and even your vehicle incident to the arrest). However, in many cases the items were recovered from my clients following a "consent" search. Simply put, my clients allowed the police to conduct the search that ultimately revealed the forbidden items. But what exactly is a "consent" search and why would anybody allow the police to search if they knew there were illegal items to be found?
As a criminal defense attorney working in mostly rural Central Pennsylvania, I am constantly face-to-face with the heroin epidemic that is affecting both cities and small communities around the country. Recently, I was speaking to a Pennsylvania State Police officer about a case in which my client had been charged with the possession of heroin and the possession of a stolen firearm (which officers believe my client intended to sell in order to support a heroin habit). In my conversation with the state trooper, he asked rhetorically "what ever happened to just drinking beer?" His point was well taken. Heroin is not a drug used only by rock stars or on rough city streets. Its influence is everywhere-in small, quiet towns and friendly neighborhoods. Since relocating from the Boston area to State College over three years ago, I have handled hundreds of criminal cases in the central Pennsylvania region. I would estimate that some 80% of them are in some way related to heroin use, whether it is the sale or possession of heroin, or thefts, robberies, burglaries and other crimes committed by heroin-addicted individuals in order to support their habits. I have also handled numerous cases involving violence between heroin dealers.
Do I have to stop and talk to police when they ask me to?
Yes and no (but often the answer is no)
To answer this question, one must be familiar with some basic legal concepts related to the law of "seizure," a concept derived directly from the text of the Fourth Amendment to the United States Constitution which reads, in pertinent part: