What is a “Search” Under the Fourth Amendment?

The broad rules for what a “search”is are determined by whether a person has a privacy interest. Searches can be a physical search of items or a person, and can also be of conversations. Any evidence which could be considered incriminating can be discovered by a search, whether tangible or intangible. When a search is “reasonable” the evidence will be permitted in court. When a search is deemed unreasonable, the evidence will probably be excluded (there are exceptions to this rule).

The appropriateness of a search is determined by the nature of the privacy interest, the scope, conduct, and duration of the search. Therefore, beyond a few generalizations, the “reasonableness” of a search is an inquiry into the facts around the search.

I promised some broad generalizations. So here they are, but take them with a grain of salt. The law is filled with exceptions and that holds true for the rules for a reasonable search.

  1. Generally privacy interests exist:
  • Where a person has an expectation that his words or actions are private. (This includes the home or where conversations being held are otherwise intended to be kept private, such as a phone booth.)
  • Where a person is invited or temporarily residing.
  1. Generally privacy interests do not exist/ are lessened:
  • Where and item is in plain view and the criminality of the item is immediately apparent.
  • In public places holding a conversation which others could reasonably overhear.
  • In registered vehicles on public highways or vehicles capable of moving on public highways (including RV’s).
  • Where a police or peace officer’s safety is in question.
  • At a person’s place of business has a lesser expectation of privacy
  • In a field surrounding a home or in an area around a home which is in plain view from the street.

A search is generally reasonably begun in 2 situations: when there is a warrant for the search, and when there is probable cause and exigent circumstances allowing a peace officer to avoid getting a warrant.

  1. A warrant requires an affidavit of probable cause (a sworn statement that shows why there is probable cause to believe criminal activity or criminal paraphernalia exists) and a precise description of the persons, places, and items to be search and what can be expected to be found. Having a warrant generally means the search will be reasonable.
  2. Alternatively, a search can be reasonable at its inception when the is probable cause and exigent circumstances. Again probable cause refers to the probability that criminal activity is taking/has taken place and/or that criminal paraphernalia will be found on location. This probable cause must be combined with an exigent circumstance. There is a long list of court cited exigent circumstances, including officer safety, a need for immediate response to a situation, community safety, invitation to search, and others. The inquiry of reasonableness of this search is always fact based.

However, even a search that is “lawful at its inception can violate the Fourth Amendment if its execution unreasonably infringes interests protected by the Constitution.” (Illinois v. Caballes, United States Supreme Court) Therefore, even when there is a warrant or probable cause combined with exigent circumstances, if the search goes beyond a reasonable scope, duration or if conduct of the officers involved is unreasonable, then the search may not be reasonable.

Appealing a Court’s Determination

What is an appeal?

An appeal is a petition for a review of a lower court’s decision.  There can be various grounds for the appeal. These include a mistake of law, a mistake of fact, or an error in the process. A mistake of law may mean the wrong law was applied, or that the correct law was applied but in an incorrect manner. A mistake of fact may occur when a new fact is discovered, or when a jury clearly disregards a fact. Finally, a mistake of process may occur when the correct procedure is not followed at the trial level. This may include certain deadlines, disclosure of evidence, or improper action in the courtroom.

An appeal is not to be regarded as a chance to re-do the trial. The appeal is a separate petition and may ask for forms of relief, including to hold a new trial. The appeal itself is a proceeding which uses certain methods to review the actions at or before trial for propriety. The court may then choose to reverse the trial courts opinion, remand for a new opinion, remand for a new trial, or a number of other options. You should discuss with your attorney what options you may have to appeal a decision.

When is an appeal appropriate?

The most common time for an appeal is after a trial and a verdict has been reached or a final opinion given. At this time a party has 30 days to file a notice of appeal. Appeals are only given if filed in the appropriate window. You should discuss with an attorney whether you have a right to appeal an adverse decision when the decision is finalized.

There are other times when an appeal may be filed, and there are times that despite an adverse decision, the appeal is not possible. An appeal may also be filed after verdicts on certain motions. The motion will be one which would irreparably harm you if it is not granted, this can only be determined on a personalized basis. There is no way of generalizing what motions are directly appealable. Additionally, sometimes even though the courts decision is adverse to you, you may not be able to appeal. This occurs when an issue becomes moot, or when your trial attorney failed to preserve an issue for appeal.

To what court will I appeal?

The Commonwealth of Pennsylvania runs a unified court system, the description of which can be found here. Which court your attorney files an appeal in will depend on what court your case originated.

If the appeal is from a local or some state government agencies it can usually be appealed to the Court of Common Pleas. Otherwise the Court of Common Pleas is a trial court.

The Commonwealth Court was created to alleviate the burden of appeals on the Superior and Supreme Courts. This court hears appeals relating to state administrative agencies, state government, and matters involving internal affairs of non-profit corporations.

The Superior Court is mainly an appeals court with petitions originating from the Court of Common Pleas. This includes civil and criminal appeals.

The Supreme Court handles appeals originating from any court, depending on the type of appeal. Some cases are automatically appealed or heard as a matter of right, while for other cases the Supreme Court has discretion whether to hear the appeal.

Who can help me with an appeal?

When the decision you obtained is negative, you may wish to think about appealing the decision. Whether it is a decision by a government agency, a civil trial, or a criminal problem, the process takes time and a lot of writing and research. It is crucial that you contact an attorney about an appeal as soon as possible. Shannon K. McDonald is an experienced attorney who has handled many appeals issues. Talk to your attorney and discuss the possibility of an appeal, and for further information and a free consultation, contact Shannon K. McDonald today.

First Time DUI’s and Accelerated Rehabilitative Disposition (ARD)

What is ARD?

Accelerated Rehabilitative Disposition (ARD) is a system for first time DUI offenders under Pennsylvania law. The ARD program is an alternative to the criminal trial and is intended to allow the individual to avoid a lengthy trial and allow the defendant to continue his life, without jeopardizing the public.

ARD is very similar to probation, but at the end of successful completion of the ARD program, the defendant may have the DUI expunged from his record. Generally the supervisory period is two years and the defendant may not drink alcohol for a set amount of time. Other requirements, like employment or training programs, may also be imposed.

If you complete the ARD program successfully then you will have avoided jail time, a one year suspension of your driver’s license, and a criminal conviction, as well as other potential consequences.

Who is eligible and should I accept ARD?

Only first time offenders are eligible for the ARD program. The district attorney in charge of prosecution will make the decision regarding a specific person’s eligibility, but a judge has the final say on acceptance into the program. A request to be included in the program may be made to the district attorney by the defendant, the defendant’s attorney, or any interested agency or institution. Not every first time offender is automatically accepted into the ARD program, but you and your attorney should discuss the possibility of the ARD program.

Even if you are a first time offender you will not be eligible for ARD if:

  • There was a serious injury to anyone other than yourself in the incident
  • Any fatality occurred in the incident
  • You had a child under the age of 14 in the vehicle at the time of the DUI stop

If you are not eligible for ARD, you will have to go through the criminal court system for the DUI.

Not everyone should accept the ARD program. Although it can be more expensive, sometimes a trial is a better option for defendants. The ARD program is like a get out of jail free card, it is not like a verdict of not guilty. If you are ever arrested for a second DUI, the system will treat you as a repeat offender.

For this reason, if you have a good chance of winning your DUI case on the merits, you should save your get out of jail free card. You need to discuss with your lawyer the options for the case, both ARD and trial. Remember, a not guilty verdict is far more valuable further down the road than a successful pass in the ARD program.

What happens when someone fails the ARD program?

Of course, all goes best when a defendant successfully completes the ARD program, and does not have another DUI problem. However, some do fail the ARD program. If a defendant fails to complete any part of the ARD program, the district attorney will seek to have you removed from the program. There are some due process issues involved with removal, discuss this with your lawyer if removal does seem like a possibility.

Issues often include:

  • Not attending supervision meetings
  • Failing to attend any mandated DUI school
  • Failing to pay any restitution
  • Otherwise violating any condition of the ARD program as ordered by the court

If you think you are in violation of any part of your ARD program, you should immediately call your lawyer. When a defendant is in violation of the ARD program, the defendant will have all original DUI charges reinstituted and the defendant will have to go to court. If you fail the ARD program you will be prosecuted on the original charges and if convicted you will be sentenced under the original DUI charge.

To read more black letter law about the ARD program, visit:  http://www.pacode.com/secure/data/234/chapter3/chap3toc.html.

If you have a problem with a DUI, or another issue in Pennsylvania, which you’d like to discuss with an experienced defense attorney, contact our office for a free consultation today.