One of our most basic rights is our right to our privacy and the privacy in our belonging like our luggage or other bags that we carry when we travel. Most people, however, simply don’t understand this concept and it sometime creates a huge criminal problem for them.
This is an issue not just for professional athletes who travel a lot but everyday people. If you don’t understand your rights, it can literally cost you thousands of dollars in legal fees, a criminal record, and maybe land you in jail!
With us tonight to talk about our constitutional right to privacy is criminal defense lawyer Alfonso Gambone. Alfonso’s is one of the Philadelphia’s finest criminal lawyers, a former prosecutor, and the author of 3 books on criminal defense.
He has represented thousands of people in Pennsylvania and New Jersey in cases involving the illegal possession of drugs, guns and drunk driving. He has represented professional and collegiate athlete, as well as small business owners, doctors, single parents, and minors. Alfonso, thanks for joining us again on the show.
QUESTION: Does every person have a constitutional right to privacy?
ANSWER: Yes. But when it comes to criminal charges like an illegal gun or drugs, we don’t refer to it as the right to privacy but your right against illegal search and seizure which is protected by Article I, Section 8 of the Pennsylvania Constitution as well as the 4th and 14th Amendment to the United States Constitution. While we all have these rights, we don’t always have the right to assert them. The right against illegal search and seizure requires that we have an expectation of privacy in the item that is the subject of the search. Obviously we have an expectation of privacy for all the items that we own as well as our home and even items in our car but those rights and that expectation of privacy gets a little more complicated when were are outside our homes or the case of a property that is co-owned.
To find that a search is illegal, court must first find that you had an expectation of privacy in area searched. This expectation of privacy is known as standing. If you don’t have standing, you don’t have a constitutional right against illegal search and seizure.
QUESTION: What determines if a person has an expectation of privacy in piece of property other than ownership?
ANSWER: Courts will look your purpose in the place, the duration of your presence in the place, the nature and the type of relationship to the premise, and any other factors which may be relevant to an expectation of privacy analysis. In most situations courts will find that an overnight guest has a legitimate expectation of privacy in a home or a hotel and therefore standing to assert the Fourth Amendment.
QUESTION: Ok, so lets say that you have a constitutional right against illegal search and seizure. How does a criminal court determine if a search was illegal?
ANSWER: Pennsylvania court will evaluate the legality of the search based on a police officer’s probable cause to perform a warrantless search or the affidavit of probable cause used to issue a search warrant. The defense asserts a person’s right in a Motion to Suppress Evidence. If the motion is successful, the prosecution isn’t permitted to use what was recovered from the search.
This is a critical pre-trial motion especially in cases involving illegal firearm, guns, drugs, controlled substances, and other contraband. If the prosecution doesn’t have this evidence, they will more than likely have to drop the case because there is no corpus delicti or body of the crime. To understand this legal concept, the person can’t be tried for a drug crime without the drugs and can’t be tried on an illegal gun charge without the firearm.
QUESTION: What about property that is co-owned like a house or car? Can two people have a constitutional right in the same item?
ANSWER: Yes. Two people can have constitutional rights in the same item and both people can also consent to the search of the item. So hypothetically speaking, if a person owns a house with his girlfriend and police want to search the house, she can give consent to search the house.
She isn’t however, obligated to give consent and like I tell all of my clients, if police are asking for consent to search something, don’t give it. This doesn’t mean be a jerk or be rude but simply tell the officer, they he or she isn’t permitted to search. If the officer threatens to get a search warrant, tell them politely to get a warrant but you aren’t going to give them consent. It’s better defense strategy to fight the basis for the warrant later on rather than to fight the voluntariness of your consent to search.
Now a person can give consent to search property but that may not be all items with in the property, especially items which don’t belong to that person. Recently, the Pennsylvania Superior Court made a decision in a case involving the expectation of privacy for a shaving kit bag located in another’s home.
In the case, the owner of the property had given police the consent to search the home. During the search, the police opened a closed shaving bag located in the bedroom. The shaving kit bag contained an illegal handgun (VUFA), marijuana, and bullets. The owner of the shaving bag was arrested for illegal gun possession (VUFA) and possession with the intent to deliver drugs.
The Superior Court found, however, that the search of the bag was illegal because the owner of it had an expectation of privacy in that bag which the apartment owner couldn’t consent to or waive. While the apartment owner could consent to the search of the property, she couldn’t consent to the search of an individual’s item
QUESTION: What do police need to obtain a search warrant?
Police need probable cause. Probable cause is reasonable belief of the officer, based on his training, education and experience that a crime has occurred or is occurring within the place he is seeking to search. To obtain a search warrant police or law enforcement must complete an affidavit of probable cause. Which is basically a written statement to a judge that provides the police’s officer basis for his probable cause. If the judge finds that there is sufficient probable cause, he or she issues the warrant.
There are situations where police can search a property without a search warrant and the most common is known as exigent circumstances where there is belief that if police don’t act immediately, the illegal items or contraband will be lost.
QUESTION: Alfonso, any final words for our listeners?
Remember, whether you think you have the right against an illegal search and seizure, never give police consent to search you or your property. Never give a statement, just be polite and if you do get arrested, get the right criminal defense representation. For more information involving illegal searches involving guns, drugs, and other contraband I encourage you to read my book - What Everyone Should Know about Guns, Drugs, and Defense Lawyers in Pennsylvania or call my office at (215) 755-9000