CIVIL VERDICTS - PREMISES LIABILITY * Estate of Joan DeMarco v. The Marquis - Decedent business tenant of apartment/office complex owner murdered by former employee of defendant in violent assault during office burglary. Plaintiff's estate alleged negligent security theory of liability against defendant. Settlement negotiated with responsible insurance company in excess of One Million Two Hundred Thousand ($1,200,000.00) Dollars prior to trial. * Khaled Bakar v. Home Properties, Inc. - Plaintiff was standing on third floor balcony of friend's apartment owned by defendant, when the floor suddenly collapsed causing plaintiff to fall to ground. Plaintiff sustained fractured ribs, non-displaced tibia fracture and herniated disc, which was treated with physical therapy and multiple epidural injections. Montgomery County jury returned a verdict in the amount of Seven Hundred and Sixty Nine Thousand ($769,000.00) Dollars. Plaintiff filed Motion for Delay Damages which was granted and case was settled for Nine Hundred Thousand ($900,000.00) Dollars. * CIVIL VERDICTS - AUTOMOBILE ACCIDENTS * Riccardo v. Kim - Plaintiff sustained fractured cervical vertebrae at C5-6 level which required two surgeries and metal screws, arising from a two vehicle automobile accident. Out-of-court settlement negotiated with responsible insurance carriers in amount of Four Hundred Thousand ($400,000.00) Dollars prior to trial. * Estate of Robert Kane v. Joseph Falco - Decedent killed while passenger in one-car accident where intoxicated driver lost control of vehicle. Wrongful death claim settlement negotiated with responsible insurance company in the amount of Six Hundred and Sixty Thousand ($660,000.00) Dollars prior to trial. * Vinnie Moss v. Baldi Transportation/Erie Insurance Company - Plaintiff awarded Two Hundred Thirty Five Thousand ($235,000.00) Dollars by jury after trial. Defendant trucking company bankrupt and uninsured. Uninsured motorist claim settlement negotiated with plaintiff's insurance company in the amount of Two Hundred Thousand ($200,00.00) Dollars. * CIVIL VERDICTS - LIQUOR LIABILITY * Gerald & Irene Kane v. Dublin Wine and Spirits and Commonwealth of PA - Plaintiff husband and wife sustained multiple injuries in head-on collision with drunk driver. Husband-plaintiff sustained head injury resulting in brain hemorrhage and coma, with substantial recovery. Wife-plaintiff sustained broken ankle. Out-of-court settlement successfully negotiated against defendants prior to trial. Husband's claim - Two Hundred Forty Thousand ($240,000.00) Dollars. Wife's claim - Ninety Thousand ($90,000.00) Dollars. (Bucks County)* Edward Pisarek v. Adriatric Club - Plaintiff police officer assaulted while on duty by intoxicated bar patron skilled in martial arts. Plaintiff sustained permanent partial hearing loss and multiple lacerations. Non-jury trial verdict in favor of plaintiff and against defendant in amount of One Hundred Fifty Thousand ($150,000.00) Dollars. (Philadelphia County) CIVIL VERDICTS - PRODUCT LIABILITY* Keith Rosenberger v. Galoob Toys, Inc. - Plaintiff sustained temporary partial loss of vision in one eye with increased risk of future glaucoma, when struck in eye by defendants' children's toy, while plaintiff demonstrated newly purchased toy for child. Out-of-court settlement successfully negotiated against defendants in the amount of One Hundred Fifty Thousand ($150,000.00) Dollars prior to trial. (Montgomery County)* Raymond Cost v. Caterpillar, Inc. - Plaintiff sustained partial amputation of his lower leg, when his foot was crushed in an unguarded pinchpoint of rotating couplings inside engine area, while plaintiff was performing maintenance of defendant's heavy trash compactor/metal shearer. Out-of-court settlement successfully negotiated against defendant in the amount of Four Hundred Seventy Five Thousand ($475,000.00) Dollars prior to trial. (Montgomery County)

Montgomery County Drug Case Reversed

Yesterday a panel of the Pennsylvania Superior Court agreed with the argument of Pennsylvania criminal defense attorneys John I. McMahon, Jr. and Brooks T. Thompson and held that police generally need a traditional warrant to obtain an individual’s real time cell-site location information (CSLI).  In so ruling, the Superior Court vacated the judgment of sentence of our client David Pacheco who was sentenced to 40 to 80 years in prison after a Montgomery County jury found him guilty of Possession with Intent to Deliver Heroin.

Mr. Pacheco’s conviction arose following an investigation by Montgomery County Detectives into a suspected drug distribution scheme involving individuals in and around Norristown, PA.  As part of the investigation, police obtained a Court Order, issued pursuant to Subsection 5773 of the Pennsylvania Wiretap Act, which authorized law enforcement to (among other things) track the location of any cell phone believed to be used by defendant Pacheco 24 hours a day, 7 days a week for an initial 60-day period, which was subsequently extended to 120 days.

Prior to trial, Pennsylvania criminal defense attorneys John I. McMahon, Jr. and Brooks T. Thompson argued in a hearing on a Motion to Suppress that the warrantless real-time tracking of the cell phone associated with Pacheco violated the Fourth Amendment of the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. We maintained that police needed a warrant to engage in the real-time tracking of the defendant’s location, and that the Court Orders issued under Subsection 5773 failed to provide the necessary constitutional safeguards to be deemed the functional equivalent of a warrant.

A Judge of the Montgomery County Court of Common Pleas denied our Motion to Suppress Evidence and the case proceeded to trial.  Following trial, the defendant was convicted based upon information derived from the real-time location tracking of his cell phone.

On appeal to the Pennsylvania Superior Court, defense attorneys John I. McMahon, Jr. and Brooks T. Thompson renewed the argument that the real-time location tracking of the defendant violated his constitutional right to be free from unreasonable searches and seizures.  While the appeal was pending, the United States Supreme Court decided Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018) which held that police are required to obtain a warrant to ascertain an individual’s historical CSLI.  The Carpenter decision was based on many of the same privacy concerns that we raised in the lower court with respect to the real-time location tracking of Pacheco’s cell phone.

Based in part upon the Carpenter decision, the three judge panel of the Pennsylvania Superior Court agreed with our argument that police must obtain a warrant before obtaining an individual’s real time CSLI. The panel opined that the standard required for an Order of Authorization under the Wiretap Act falls short of that required for a warrant which requires an individualized showing of probable cause. A copy of the Superior Court’s written Opinion in the Pacheco case is available here.

How does real-time cell phone location tracking work?

Law enforcement obtain the real-time CSLI location of a targeted cell phone by directing the cell phone service provider to send command signals to the targeted cell phone.  Those command signals tell the phone to activate its location subsystem. The phone then determines its own location by pulling data from at least three GPS satellites. In the event GPS data cannot be obtained, the phone ascertains its location based on the location of the nearest cell phone tower. Once the phone determines its own location, it transmits this information back to the wireless service provider. The wireless service provider in turn sends the information to law enforcement via e-mail. The location information generated is generally accurate within less than thirty (30) meters.

What’s troubling is that all of this activity occurs on the user’s cell phone without his or her knowledge or consent.

Implications of the Ruling

Pennsylvania criminal defense attorneys generally regard the Superior Court’s ruling in the Pacheco case as another much needed update to search and seizure jurisprudence in our modern digital era. The Court of Common Pleas Orders of Authorization issued pursuant to the Wiretap Act in the Pacheco case, and others like it, provide law enforcement with sweeping, unbridled authority to intrude into an individual’s private life. The applications for these Orders often refer to advanced surveillance technologies in cryptic terms which are not explained to the judges who are being asked to authorize the surveillance. As a result, it is likely that many judges are not even aware of the scope and extent of the intrusion which they are being asked to authorize.

The ruling that police must obtain a warrant to ascertain real-time CSLI will help guard against overbroad authorizations and will require police to be more specific as to the scope of the surveillance that they intend to carry out.

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