A blog of the Philadelphia Bar Association’s Criminal Justice Section

police officer.
Whatever you think about the good-faith exception, courts are using it as an excuse to avoid scrutinizing questionable police searches.

Photo by Jeremy Woodhouse/Thinkstock

By Nathan Freed Wessler, ACLU Staff Attorney

It used to be that when police violated a suspect’s Fourth Amendment rights through an unconstitutional search, evidence derived from the search would be thrown out.

Increasingly, that’s not the case.

Courts are carving out ever-larger safe harbors for police errors and misconduct, thereby eroding the boundaries of the Fourth Amendment prohibition on unreasonable search and seizure. Earlier this month, the 3rd Circuit Court of Appeals became the latest to give the government a free pass for Fourth Amendment violations—in this case, allowing use of evidence derived from a GPS tracking device that police attached to a suspect’s van without a warrant.

Click for entire report from Slate

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David Grunfeld, State Representative Todd Stephens, and Stuart Haimowitz participated in a CLE co-sponsored by the Criminal Justice Section and the Family Law Section.  Act 32, effective June 15, expands the categories of persons who are mandatory reporters of child abuse.  The Act, sponsored by Representative Stephens, creates new tensions between the requirement to report and the attorney-client relationship.  Mr. Grunfeld is a family law practitioner and edits the ethics column for the Philadelphia Lawyer.  Mr. Haimowitz practices criminal law and attorney discipline matters.

Click for text of Act 32.

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By Burt Rose

Click for Opinion

The Superior Court of Pennsylvania en banc has issued a decision in the case of COMMONWEALTH of Pennsylvania v. Joseph Louis KELLY, Appellant, No. 3432 EDA 2012, 2014 WL 5408185, 2014 PA Super 243 (Oct. 24, 2014), an appeal from a Judgment of Sentence of the Court of Common Pleas of Delaware County, per Judge Kevin Kelly, Criminal Division, CP–23–CR–0002697–2012. The Judges were BENDER,BOWES, PANELLA, DONOHUE, SHOGAN, ALLEN,LAZARUS, WECHT and STABILE. Judge Bender wrote the Opinon. There was no dissent.

The Appellant, Joseph Louis Kelly, appealed from a judgment of sentence of 30–72 months’ incarceration and a consecutive term of 5 years’ probation imposed following his conviction for corruption of minors and indecent assault. The Appellant had committed a single act of fondling the genitals of a minor. The question here was a matter of first impression, that is, whether the Commonwealth proved that Appellant had engaged in a “course of conduct” as required under the felony grading of the offense of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii). The crux of his argument was that the use of the phrase “course of conduct” in subsection (a)(1)(ii) requires proof of two or more related events that occur over time, and, consequently, a single episode does not constitute a course of conduct.

The Superior Court concluded that the use of the phrase “course of conduct” in the first provision of subsection (a)(1)(ii) imposes a requirement of multiple acts over time, in the same manner in which the term is used in the harassment, stalking and EWOC statutes. The Legislature did not intend to apply the felony grading of the corruption of minors to a single sexual offense. Although there was insufficient evidence of a violation of the felony grading of that offense, Appellant’s commission of an indecent assault against the victim was sufficient evidence of the lesser included crime, that of the misdemeanor grading of corruption of minors. However, since the Appellant did not engage in a “course of conduct” within the meaning of the felony provision, the Court vacated his judgment of sentence and remanded for resentencing.

Attorney Steven Michael Papi represented the Appellant.

Senate

Session schedule

The General Assembly has completed its work for its term.  The General Assembly has recessed until November 12.  November 12 will be a non-voting session, where the causes will organize for the next session and administrative work will be completed.

On the Governor’s desk

The following bills were given final approval by the Senate and House and are now on the Governor’s desk for action–

Mobile Tracking Information: Senate Bill 1290 (Vulakovich-R-Allegheny) providing for disclosure of wireless device location.  A summary and House Fiscal Note are available.  It was signed into law as Act 181.

Reporting Child Abuse: House Bill 435 (Moul-R-Adams) expanding the requirements for background checks for employees working with children.  A summary and House Fiscal Note are available.  It was signed into law as Act 153.

Exchange Of Child Protection Information: Senate Bill 27 (Mensch-R-Montgomery) further providing for the exchange of information in child protective services. A summary and House Fiscal Note are available.  It was signed into law as Act 176.

Standing To Challenge Local Firearms Ordinances: House Bill 80 (Metcalfe-R-Butler) giving “membership organizations” (read the NRA) standing to challenge local ordinances regulating firearms, along with other provisions.  A summary and House Fiscal Note are available.

Public hearing

November 20 (change of date) House Judiciary Committee holds a hearing on Department of Corrections staffing levels. Bellefonte Courthouse Annex, Bellefounte. 10 a.m.

(Source:  Crisci Associates PA Capitol Digest)

Honorable Kevin Dougherty appointed Administrative Judge of Trial Division

Click for news release

By Trevor Grundy, Religion News Service, Washington Post, October 23, 2014

CANTERBURY, England — Anglican priests should no longer be bound by the centuries-old principle of confidentiality in confessions when they are told of sexual crimes committed against children, the Church of England’s No. 2 official said.

Speaking at the end of an internal inquiry on whether senior church officials ignored abuse allegations involving children, Archbishop of York John Sentamu said that “what happened was shameful, terrible, bad, bad, bad.”

He said that the Church of England must break the confidentiality of confession in cases where people disclosed the abuse of children. “If someone tells you a child has been abused, the confession doesn’t seem to me a cloak for hiding that business. How can you hear a confession about somebody abusing a child and the matter must be sealed up and you mustn’t talk about it?”

Click for entire report

Capitol

House to meet Monday to decide whether to concur with Senate bills

The House has scheduled an additional voting session for Monday.  The House will have the opportunity to concur (approve) the following bills concerning criminal justice:

Standing To Challenge Local Firearms Ordinances: House Bill 80 (Metcalfe-R-Butler) was amended by by Sen. Richard Alloway (R-Adams) to give “membership organizations” (read the NRA) standing to challenge local ordinances regulating firearms.  The amendment passed 32 to 16.  The Senate passed the bill and it now returns to the House for a concurrence vote.

Sexual Predators: House Bill 1874 (Farry-R-Bucks) further providing for counseling of sexually violent predators was amended on the Senate Floor and passed by the Senate.  The bill returns to the House for a concurrence vote where the bill is in the House Rules Committee.

After Monday, the House is set to recess until November 12.  The Senate is in recess until November 12.  On that day, the General Assembly will organize for the next session and take care of administrative matters.  Any bills not passed by the House and Senate of October 20 are dead for the present session of the General Assembly.

On the Governor’s desk

The following bills are awaiting approval or veto by the Governor

Reporting Child Abuse: House Bill 435 (Moul-R-Adams) expanding the requirements for background checks for employees working with children.  A summary and House Fiscal Note are available.

Exchange Of Child Protection Information: Senate Bill 27 (Mensch-R-Montgomery) further providing for the exchange of information in child protective services. A summary and House Fiscal Note are available.

Public hearing
November 14– House Judiciary Committee holds a hearing on Department of Corrections staffing levels. Bellefonte Courthouse Annex, Bellefonte. 10 a.m.

(Source:  Crisci Associates PA Capitol Digest)

By Jonathan Adler, Washington Post, October 14

[On October 14] the Supreme Court denied certiorari in Jones v. United States.  At issue was whether a criminal defendant’s Sixth Amendment rights are violated when a court imposes a sentence that, but-for a judge-found fact, would be unreasonable. Here the defendants were acquitted of a conspiracy to distribute drugs charge, but the judge nonetheless made a finding that the defendants had participated in such a conspiracy when determining their sentences for other drug offenses.

The Court’s denial of certiorari in Jones drew a dissent from three Justices — Scalia, Thomas and Ginsburg. This may seem like an odd lineup, but all three have adopted a fairly uncompromising approach to the Sixth Amendment, arguing repeatedly that the Amendment’s jury trial right requires that all elements of a crime and sentencing facts be proved to a jury beyond a reasonable doubt.  Thus all three were understandably troubled by the lower court’s decision in Jones.  Interestingly enough, they could not get a fourth justice to support a cert grant.

Click for entire report from the Washington Post

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