Motion to Suppress Gun and Drugs Granted
Working as a criminal defense attorney in Philadelphia, I am often hired by people who have been charged with possession of guns or drugs. While there are many ways to defend these charges, a motion to suppress is the strongest. And, this makes perfect sense when you think about the elements of a possession charge: If a defendant is holding a gun or drugs and police take the contraband off him, he has committed the crime. However, if the police acted illegally and violated your privacy rights by searching you without reasonable suspicion or probable cause, then the court can grant a motion to suppress. If the motion to suppress is granted, the gun or drugs are no longer admissible against you at trial and the District Attorney can not prove its case.
Motion to Suppress Gun: Police Need Search Warrant to Enter Private Property
A Motion to suppress a firearm and over 40 grams of crack cocaine was granted after police searched my client and then entered his property without a search warrant. The officer saw the firearm that he believed my client placed inside the house only after he illegally entered the property. Due to the fact that the officer did not have probable cause to believe a crime was committed and police failed to obtain a search warrant prior to entering the residence, the court granted the motion to suppress the firearm and all drugs inside the home. My client was facing about five years of state incarceration on this case and owed the state parole board about two years of street-time.
Facts of the Case: Anonymous Radio Call and Police Observations
A Philadelphia police officer received an anonymous radio call that a dark complected, bald, black male, with a long beard, wearing a blue hoodie was in possession of a firearm at the corner of Greenway Avenue and South Daggett Street in Philadelphia. An officer responded to this call and arrived on location within a minute of the call. He observed my client standing on the steps at 2101 South Daggett Street. My client matched the description provided in the radio call. The officer saw my client standing in the doorway along with a woman. The officer drove 20 feet past the property and looked through his side view mirror. He observed my client step into the house and bend down like he was placing an object in the house. The police officer approached the property and ordered my client off the steps where he searched him. Nothing was recovered.
Additional officers responded to the scene and my client was detained. As he tried to enter the property, the female told the officer that it was her house and he needed a search warrant to enter. The officer pushed her aside and stepped into the property where he observed a silver revolver sitting on a child’s toy. After seeing the gun, my client was arrested. The officer decided to step further into the house to make sure nobody was inside. He observed crack cocaine in front of the television. At that point, the female was also placed under arrest. Based on the officer’s observations, a detective obtained a search warrant. Police recovered the gun, over 40 grams of crack cocaine, over $1,200, new and unused baggies, and other drug paraphernalia. My client was charged with possession of a firearm, possession with intent to deliver, criminal conspiracy and related offenses.
Were Exigent Circumstances Present?
As with every rule, there are exceptions. Police are not allowed to enter a private residence without a search warrant. However, there are exceptions to this general rule. One exception to the warrant requirement is the presence of exigent circumstances. Exigency is determined based on a number of factors including:
- The seriousness of the offense;
- Whether the suspect is reasonably believed to be armed;
- Whether there is strong reason to believe a suspect is within the premises who can destroy evidence;
- Whether it is likely that a suspect will escape if not quickly apprehended;
- If there is a danger to police or others in or outside the residence; and
- Whether there is a fleeing felon.
The defense argued there was no exigent circumstances because the suspect police had information about was standing outside of the property. Second, there was no reason to believe there was anyone in the property who could destroy evidence or posed a danger to anyone. Third, my client was searched and nothing was recovered from him. Fourth, he did not try to flee. Fifth, the offense was merely possession of a firearm and not a violent crime committed with a gun.
Is it a Crime to Possess a Gun on your Own Property?
However, in order to search a residence without a warrant there must be both exigent circumstances and probable cause that a crime was committed. While, the defense maintained that there was no exigent circumstances, we also argued that there was no probable cause that a crime was committed. My client is allowed to be in possession of a firearm on his own property. In other words, even if the radio call was accurate and the officer was correct in inferring that the item placed inside the house was a gun, there still was no probable cause that a crime was committed. My client was standing on the steps of his own property with a gun, which is not a crime. The court agreed that there was no probable cause and granted the motion to suppress. It found that my client was lawfully allowed to be on his own property, including his steps, in possession of a firearm. Therefore, no crime was being committed when police took him into custody and entered his property without a warrant. The search warrant was invalid because information in the affidavit of probable cause included the officer’s observations of the gun and cocaine inside the property and he lacked probable cause to enter the property to see those items.
Final Thoughts: Don’t Dispose of Items when Police Approach
The first step in winning a motion to suppress is to demonstrate an expectation of privacy in the location searched whether it’s your person, a car, or your house. It’s natural instinct to get rid of anything illegal on your person when police arrive on a scene. However, if police have not shown force or ordered you to stop and on your own accord you dispose of contraband, you just gave up your expectation of privacy in that item. Police have every right to recover it use it against you at trial. You place yourself in a much better position to win a motion to suppress if you don’t panic, you don’t run or flee and you keep the gun on you. Let the police search you and recover it. Do not dispose of it when police approach. At that point, you allow your criminal defense attorney to argue that police violated your rights when they searched you and recovered the gun.
If you or a loved one have been arrested for possession of drugs, possession with intent to deliver or possession of a firearm in Philadelphia, Montgomery, Delaware, Bucks or Chester County, Pennsylvania, contact criminal defense attorney Brian M. Fishman for a free consultation to discuss your case.