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Articles Posted in Court Rulings

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holster-648014__480-300x206In an opinion that was hardly a surprise, the Supreme Court recently struck down a New York law that required citizens to prove a good reason why they should be able to carry a firearm outside of the home.  This case was of particular interest here due to the fact that the Maryland concealed carry permit law is almost indistinguishable to the New York law.  The Maryland State Police has long since required citizens to provide a good and substantial reason why they should be granted a concealed carry permit (officially known as a Handgun Wear and Carry Permit).  This clause is located in the Public Safety Code of the Maryland statutes under Title 5, which governs firearms.  Section 5-306 requires proof of a good and substantial reason to protect against apprehended danger, and typically only been satisfied by those whose occupations place them in reasonable fear for their life when outside of their home.  Certain business owners who carried large amounts of cash, or who operated in high crime areas had been some of the few who qualified for this permit.  The MSP has taken the official stance that they want all qualified individuals to be licensed to carry, but the good and substantial reason requirement still left many out in the cold when it came to permits.

Over the last month the tide has drastically shifted, as soon after the Supreme Court opinion was released the Maryland Governor and the Attorney General directed the State Police to immediately suspend the good and substantial reason requirement.  Currently applicants must only state their reason for the permit is for personal protection, and are not required to provide any sort of documentation to this effect.  The Supreme Court decision and subsequent change to the permit application has not gone unnoticed, and it seems that prospective applicants have been waiting on this news for some time.  From mid-June to mid-July of 2021 the MSP received roughly 1,000 Handgun Wear and Carry Permit applications.  During that same timeframe this year there have been over 7,000.   This number will likely continue to rise dramatically over the rest of the year, with one of the only holdups being the availability of licensed instructors.  Almost all civilian applicants are still required to possess and HQL and complete 16 hours of firearm training.  Instructors are booked solid, and handguns are in short supply at Maryland gun shops.  Still, the supply will eventually catch up and applications will continue to soar this year before eventually leveling off.

While the good and substantial reason requirement has been eliminated, applicants still face strict background checks.  Anyone with a prior criminal conviction or even a protective order faces the possibility of being denied.  Maryland law prohibits anyone who has been convicted of a crime that carries more than 1 year in jail from obtaining a concealed carry permit.  It does not matter if the applicant never actually served a day in jail, as the maximum penalty is the only relevant factor.  Dozens of non-violent misdemeanors carry more than 1 year in jail in Maryland.  An applicant with no prior criminal record could still be denied a permit if he or she has exhibited a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger.  This is where protective order or peace order findings could come into play and result in a denial of a conceal carry permit.

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bowl-225x300Possession of less than 10 grams of marijuana has not been a crime in Maryland for more than 5 years, but the full impact of decriminalization is still a work in progress.  When simple possession of marijuana became a civil offense, it did far more than simply end thousands of criminal prosecutions.  For decades the odor of marijuana has been a powerful tool for law enforcement officers to initiate investigations of individuals out in public.  The smell of marijuana has justified thousands of searches of people, cars and even homes, and the fruits of these searches have resulted in criminal prosecutions for weapons, narcotics, stolen property and other contraband.  While State’s Attorneys have not been able to prosecute simple marijuana possession since the fall of 2014, police officers did not simply stop using the smell of pot to justify searches.  And frankly, at the time they had no reason to do so, as the law offered no guidance on how to police in the decriminalization age.  As is typically the case, the Courts had to fill the gaping holes left by lawmakers, though this took a few years and is still an on-going process.

Separation of powers dictates that the Courts cannot simply step in and establish policy; defendants have to be arrested and their lawyers have to file suppression motions.  Then the trial courts have to deny these motions and appellate lawyers have to file briefs and make arguments in Annapolis.  The whole process from arrest to an appellate decision that clarifies a law typically takes 2-3 years or more in some cases if the case goes past the intermediate appellate court.  With respect to decriminalization of marijuana, the first major ruling came in 2019 when the Court of Appeals held that police are not permitted to search a vehicle occupant based on the odor of marijuana in State v. Pacheco.  However, due to the automobile exception and the fact that marijuana is not technically a legal substance (decriminalized does not mean legalized) cops are still permitted for now to search a vehicle based on the smell of marijuana.  One year later the State’s highest court again clarified the bounds of decriminalization by ruling in State v. Lewis that police officers do not have probable cause to arrest and then search a person based on the odor of marijuana.  The court did not address whether a police officer would have reasonable suspicion to briefly detain and pat down a person for weapons based on the odor of pot because Lewis was placed in handcuffs and effectively arrested.  A stop and frisk detention is less intrusive than an arrest, and only requires police be able to identify a specific suspicion of criminal activity.

It took another year after the Lewis case for a stop and frisk based on the smell of marijuana to reach the appeals court, but we now have an answer to that issue as well.  As of two weeks ago it is officially impermissible for a police officer to briefly detain and frisk an individual based on the smell of marijuana.  The ruling is hardly a surprise, but nonetheless was another hole in the Maryland marijuana policy that needed to be filled.  The case involved a juvenile in Prince George’s County who was detained and frisked on the steps of an apartment complex after a call came in to police that individuals were smoking pot and hanging out.  The responding officer ordered 4 juveniles to sit on the steps after smelling marijuana, and found a handgun on one of the individuals after conducting a pat-down search.  This juvenile was then arrested and charged with illegal possession of firearm by a person under 21 and wear transport carry of a firearm.  His motion to suppress was denied and then he was found involved (similar to guilty in an adult case) of the crime and sentenced to probation.  As a result of the ruling the case will be vacated and the juvenile will have his record cleared.

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joint-200x300Maryland’s highest court recently ruled that law enforcement officers are no longer permitted to search a person who is in possession of less than 10 grams of marijuana. The case came to the Court of Appeals after a Silver Spring man was arrested for possession of cocaine with intent to distribute, and later pled guilty to this charge in the Montgomery County Circuit Court. The guilty plea was entered conditionally pursuant to the Maryland rules, which allows a defendant to withdraw his or her plea if an appeal is successful down in road. In this case the defendant argued the search of his person was illegal and moved to have the cocaine suppressed, but the circuit court judge did not agree and the Court of Special Appeals, Maryland’s intermediate appeals court in Annapolis, didn’t buy the argument either. Both lower courts sided with the state that the search of the defendant was incident to a lawful arrest, and in doing so relied upon case law from the days before possession of marijuana under 10 grams became decriminalized.

The crux of the defendant’s motion was logically sound, but the case law just wasn’t’ there for the defendant’s attorney to make a bulletproof argument. The defendant argued that Montgomery County police officers did not have probable cause to search the his person based on their observation of a half smoked joint in his car. The officers testified that all they smelled was the odor of burnt marijuana and all they saw was the joint, and they not offer any evidence that led them to believe there was more than 10 grams of marijuana in the car.  Possession of less than 10 grams has been classified as a non-arrestable civil infraction for the last few years. The Supreme Court has long held that you cannot have a valid search incident to arrest if you don’t have a valid arrest in the first place, and this is exactly what transpired. In fact, one officer testified the defendant was arrested for possession of cocaine, but also agreed that he did not find the cocaine until the defendant was placed under arrest. Given the unequivocal testimony of the state’s witnesses it is somewhat surprising that the two lower courts did not side with the defendant, but again, the Maryland case law was not there yet.

The Court of Appeals reminded us that the police officers still maintain the lawful ability to search the defendant’s car regardless of whether officers believe a criminal act is in progress. Marijuana might be decriminalized, but it’s still illegal to possess in any amount without a medical use card, and as such is classified as contraband. The automobile exception has long since limited the amount of privacy we have in our cars, especially while in a public parking lot. If police observe a person with contraband in a car they will almost always perform a search, as this is how many larger drug and gun cases begin. Had the cocaine been anywhere in the defendant’s car the search, arrest and conviction would have been valid and upheld, but the fact that it was in his pocket made all the difference in the world. The defendant in this case received a felony conviction and a partially suspended sentence, but now the high court’s ruling will reverse the conviction. The defendant may have already served his sentence, but the bigger picture is the establishment of a clear rule that a suspect may not be searched based on the observance of a non-criminal amount of marijuana.

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graphics-882726_640-300x207The last of 16 former Maryland correctional officers involved in a large-scale prison corruption scheme was sentenced recently in the Baltimore federal courthouse. The 28-year old female officer originally from Texas was sentenced to six years in prison followed by three years of probation for her role in a contraband smuggling scandal at the state’s largest prison facility. Eastern Correctional Institute or ECI is a medium security facility in Somerset County on the Eastern Shore that houses over 3,000 male inmates. For years inmates and numerous staff members conspired to smuggle contraband such as drugs, cell phones and tobacco into the facility using complex organized methods designed to thwart detection. The scam eventually became too large to keep secret, and was shut down in 2016 after 80 different defendants were charged. Federal prosecutors ended up securing convictions in 77 out of the 80 cases.

While most defendants entered into plea agreements with the government, this defendant elected to take her case to jury trial, and was ultimately found guilty of racketeering, money laundering and drug conspiracy after nine days in court. Evidence presented by the government revealed that the former corrections officer conspired with her sister and other associates to smuggle packages of contraband into ECI for distribution to inmates. The contraband referenced in this particular case included drugs such as Suboxone and synthetic marijuana, phones, tobacco and pornography. Contraband was packaged in various ways including hidden within feminine hygiene products. The packages were placed in strategic locations such as staff bathrooms, interior offices and dining areas to avoid suspicious hand-to-hand transactions. Using this “dead drop” method, the smuggler and the purchaser never actually had to meet in person.

According to the government smugglers were paid roughly $500 each time they successfully delivered a package to an inmate and this defendant was no different. She was apparently paid via PayPal by inmates using the very same cell phones that were once smuggled into the prison. The contraband cell phones also provided a constant means of communication with inmates to arrange future transactions. While the phones allowed the smuggling operation to flourish they also came back to bite the co-conspirators. Federal law enforcement intercepted inclulpatory text messages between this defendant, her accomplices and the inmate customers, which referenced the type of contraband, the method of packaging, the location of the drops and of course the price. Numerous law enforcement agencies were involved in this massive investigation including the FBI, U.S. Postal Inspection Service, Maryland State Police and the Baltimore Police.

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marijuana-1281540_1280-300x225A recent Maryland Court of Appeals order likely prevented months of further delays to the medical marijuana program, and now registered patients may have access to cannabis by the end of the summer. The high court order blocked a Baltimore City judge from conducting a hearing about whether to stop the state medical cannabis commission from issuing more final grow licenses. Only one of the fifteen approved growers currently has a final license that allows the legal commencement of the cultivation process. The other fourteen were not able to secure a final license under the Baltimore City Circuit Court judge’s temporary restraining order, which was requested by minority owned grow companies that were not one of the fifteen to receive preliminary licenses to operate. The restraining order was supposed to expire on the date of the hearing, but now there will be no hearing and the order has expired.

The Court of Appeals did not release a full opinion on the matter, but rather stayed the restraining order portion of the lawsuit that is challenging whether the licensing process took race into account as required by law. The disgruntled growers requested the restraining order after arguing they would suffer greater harm should the medical marijuana program be allowed to proceed before their lawsuit is resolved. The Baltimore judge had barred the fourteen growers awaiting final licenses from participating in the restraining order hearing, which raised issues of fairness and standing, and may have prompted the Court of Appeals to issue the emergency order. Another issue the high court likely considered was the amount of money the licensed growers invested and stood to lose if the growing process was halted indefinitely. Lawyers argued that the companies who received preliminary licenses invested over $150 million in final preparation to begin growing and distributing.

Over the last four years most of the news headlines pertaining to medical marijuana here in Maryland have focused on incompetence, delays and corruption. News of the recent order by the Court of Appeals appears to buck this trend, and we could finally be approaching the home stretch where the first dose of medical cannabis reaches a patient in need. Estimates of the program officially becoming active in late summer are cautiously optimistic, but at this point there does not appear to be any impending issues that could threaten this timeline. There is always the risk that the federal government could somehow get involved, though this appears unlikely. The state’s highest court has spoken rather loudly that it believes medical marijuana should proceed without further delay. Whether the program could abruptly be halted sometime again in the future is another question, and one that will constantly be hanging over the heads of the licensed growers, distributors and patients. It has been argued that the licensing process was unconstitutional at its core, and this issue will be resolved in court or by way of negotiated settlement. A settlement however would likely have to involve the legislature granting additional license to the aggrieved parties, which is a long shot and would have legal issues of its own. For now though the medical cannabis program steams ahead and the Blog will continue to follow any more potential hiccups.

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gun-728958_1280-300x169Lawmakers stated in no uncertain terms their desire to make Maryland one of the toughest gun law states in the country when they passed the Firearm Safety Act back in the spring of 2013. The then democratic governor’s signature was a foregone conclusion and as of October of that same year the sale, purchase and transfer of semi-automatic handguns with a magazine capacity greater than 10 rounds became illegal, as did the possession of certain “assault” rifles and pistols. New security requirements were also established for state residents wishing to purchase firearms. While the magazine capacity limitation was frustrating for dealers, potential buyers and manufacturers such as Beretta, which was in essence forced to move dozens of M9 pistol manufacturing jobs out of Maryland, it was the assault rifle ban that caused the most backlash.

Politicians and anti-gun lobby groups hailed the assault rifle ban as a major victory in the fight against gun violence but it also left many outraged that it was neither constitutional nor beneficial. Firearms rights advocacy groups such as the NRA challenged the ban on numerous popular weapons such AR-15, which is a semiautomatic civilian version of the M-16 automatic assault rifle. The state prevailed in round one of litigation after a federal district court judge ruled that Maryland lawmakers did not overstep constitutional boundaries by banning weapons they believed were not built for self defense or recreational purposes, but rather to kill. Round two of litigation went to the NRA and other original plaintiffs. The United States Court of Appeals for the Fourth Circuit remanded the decision back to district court because the judge used an incorrect standard when conducting a balancing test between government intrusion and the state’s interest in protecting its citizens. But not long after this decision came down the state appealed, and the Fourth Circuit agreed to hear the case again. Only this time all judges at the Richmond, Virginia appellate court would be present and involved in the decision rather than a panel of just three judges like in the prior appeal.

In a somewhat lopsided decision, the Fourth Circuit recently ruled 10-4 that the Second Amendment does not protect so called assault rifles from being banned by Maryland law. The opinion labels weapons like the AR-15 as “weapons of war” that have already been excluded from constitutional protection by the Supreme Court in a prior case out of Washington D.C. The appeals court wrote that state lawmakers and not the courts bear the responsibility for the safety of their residents, and should not be prevented from regulating assault weapons. A strong dissenting opinion argued that states should have no say in what type of weapon citizens should be able to keep in their homes for protection as long as that weapon is one commonly possessed by American people for lawful purposes, and the AR-15 is undeniably possessed lawfully by thousands of Americans.

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thirteen-bags-of-marijuana-found-in-taxi-cabWhile the ruling was highly anticipated, it came as no surprise that The Court of Appeals unanimously held that the smell of marijuana during a traffic stop justifies an officer’s search of a vehicle. The decision handed down at the end of last week didn’t change anything, as law enforcement never stopped using the smell of pot to justify their searches. Rather the opinion will serve to temporarily put the issue to bed for at least a few years until it is rendered obsolete after marijuana is eventually legalized.

The Court of Appeals opinion handed down last Friday was actually a combined ruling for three separate cases and spelled bad news for the defendants that had been anxiously awaiting closure. Two of the cases originated in Baltimore City, and the other began in Cambridge at the Dorchester County Circuit Court. In all three cases the defendants filed motions to suppress evidence including marijuana, cocaine, oxycodone and drug paraphernalia, which was recovered after police officers conducted an automobile search. The justification for the searches was police officers allegedly smelling marijuana. All the defendants argued that at the time officers initiated the searches they did not have reasonable articulable suspicion to believe that the cars contained more than 10 grams of marijuana. Possession of less than 10 grams of marijuana was and still is only punishable by a civil fine, and therefore according to the defendants could not justify a search under the automobile exception to the Fourth Amendment.

The circuit court judges were not persuaded by the defendant’s positions, and sided with the state’s attorneys who argued that despite being only punishable by a civil fine, small amounts of marijuana remained contraband. They argued that decriminalization and legalization are not synonymous, and therefore the presence of any illegal substance justifies a broader search. All three cases traveled to the Court of Special Appeals, which is Maryland’s intermediate appellate court. This court denied the appeals in unpublished opinions and then state’s highest court accepted the cases on writs of certiorari. Arguments took place back in December, and it did not take long for the Court of Appeals to hand down the disappointing but legally sound opinion.

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thirteen-bags-of-marijuana-found-in-taxi-cabAs states move toward placing marijuana policy in the hands of voters and for the most part legalizing it, Maryland is still stuck in the dark ages where pot ties up court resources, and has lawmakers and lawyers up in arms. Medical marijuana has already invaded the civil courts, as multiple lawsuits over the grower licensing system are pending. And while we are seeing a significantly lower amount of marijuana cases prosecuted since possession under 10 grams became decriminalized, pot is still a common cause of litigation in criminal courts. Not only are there still numerous new cases filed each year for criminal possession, manufacturing and distribution of marijuana, but there are also a host of new legal issues involving law enforcement search and seizures.

When the legislature decriminalized simple possession it immediately created a grey area for probable cause searches under the Fourth Amendment. Normally a police officer is justified to search a person and his or her automobile if the officer gathers information that objectively leads to the conclusion that that a crime has likely occurred. This, save for a few minor twists, is probable cause in a nutshell. The Maryland decriminalization law left a major ambiguity in whether the discovery of a non-criminal amount of marijuana would justify a broader search of the suspect and his or her car. These broader searches usually turn up other evidence such as narcotics and firearms, which is why the issue is far reaching. We’re not just dealing with pot cases here. In fact, the Court of Appeals in Annapolis recently heard oral arguments on three cases where officers conducted Fourth Amendment searches based solely on the odor of marijuana. The trial courts and the Special Court of Appeals all ruled in favor of the prosecution that the searches were valid, and now the highest court will issue their opinion in the next few weeks.

Defense lawyers and civil rights advocates have argued that smelling burnt or raw pot, or finding less than 10 grams of it without more does not rise to the level of evidence that a crime has occurred, and would not justify a broader search. Rather, an officer who smells or recovers a non-criminal amount of pot must issue a civil citation, confiscate the weed and move on.  The government has argued that no amount of marijuana is legal in Maryland, and therefore police are authorized to search for and seize anything unlawful. The government has emphasized that a civil offense is still an offense, and the fine for simple possession is used to punish unlawful behavior. An assistant attorney general also argued that presence of the drug is enough evidence to provide officers with probable cause that more will be found, an argument does not seem to have any sort of factual basis.

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bottles-1235327_960_720Maryland’s highest court recently released a potentially groundbreaking opinion by ruling that adults may be liable for the actions of underage drinkers whom they provided alcohol. The ruling stems from two cases involving auto accidents where intoxicated teenagers were the drivers. The plaintiff in the Baltimore County case was walking her dog when she was struck by an SUV driven by an 18-year-old that had been drinking at the home of the defendant. The defendant had allegedly provided mixed drinks to the teenaged driver, and made no effort to assure that the young man would not get behind the wheel that night. The other case stemmed from a tragic accident that occurred in Howard County back in 2009. The plaintiff is the family of a 17-year-old that was killed as he was the passenger in the flat bed of a pickup truck driven by his allegedly intoxicated friend. The lawsuit states that the driver had been drinking in the garage of the defendant’s home with full knowledge of the defendant.

Both lawsuits target a third party that is claimed to be liable for damages caused by another individual, which in these cases are the two teenaged drivers. This theory of indirect third party “social host” liability is tough to prove and until now has never been recognized in Maryland. Upwards of 20 states have dram shop laws that allow liability of establishments arising from the sale of visibly intoxicated individuals that later cause injuries to another, but our state is not one of them. While this Court of Appeals ruling does not address dram shop, it will now pave the way for future civil actions against adults that furnish alcohol to minors. The court opined that young adults under the age of 21 are not competent to handle the potentially dangerous effects of alcohol, and are more susceptible to harming themselves or others when presented with the opportunity to drink in excess. According to the court some of the onus must fall on an adult that was present, and facilitated the conduct.

This appeals court ruling addresses civil liability, and it coincidentally comes at a time when the legislator has just expanded criminal liability for adults that furnish alcohol to minors. In May the governor approved a bill that will soon allow judges to incarcerate adults for up to one year if he or she provided alcohol to an underage drinker that subsequently injures or kills another person while driving a motor vehicle. This jail time provision was not present in the old statute, which under section 10-117 of the criminal code had a maximum punishment of a $2,500 fine for a first offense and $5,000 for a second offense. There will still be fines under the new law and the possibility of a misdemeanor criminal conviction, but jail time will only become a sentencing option in there is a serious bodily injury. Some lawmakers attempted to add a jail provision regardless of the minor causing an injury, though this version did not pass the General Assembly.

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hammer-719066_960_720The Special Court of Appeals has agreed to hear arguments on a major 5th Amendment issue stemming from the Baltimore City trial of the main defendant in the Freddie Gray case. In doing so, Maryland’s second highest court also ordered that the circuit court postpone the trial just hours before jury selection was set to commence. Oral arguments are set for the first week in March, allowing the Attorney General and the defense attorneys time to respond to each other’s legal briefs. The issue up for debate is whether the first defendant, whose case is still pending after a mistrial was declared, will be compelled to testify against one or more of the co-defendants. Under normal circumstances a defendant with pending charges would never be required to testify in any matter related to those pending charges. But the government is attempting to argue that their case is far from ordinary, and that the first defendant should be forced to take the stand against his former fellow officer.

The right to be protected from self-incrimination is one of the foundations of our criminal justice system, and “pleading the 5th” is one of the few legal concepts that comes to life as often in real cases as it does in Hollywood courtroom dramas. But in the case of the first officer, whose case resulted in a mistrial, the government is arguing there would be no self-incrimination implications should he be forced to testify against the other defendants. The government offered use immunity to the first officer, which means that they promised in writing to refrain from using any of the testimony against him at later time. Therefore the Attorney General will argue that there is no possibility that the officer’s testimony could get him into more trouble. This argument was compelling enough at least for the Baltimore City Circuit Court judge to buy, but don’t expect the appeals courts to be convinced as easily.

The defense introduced two main rebuttals to the government’s immunity argument. The attorneys argued that if the officer’s testimony is even slightly different the second and third time around he could face perjury charges, and they called attention to the numerous times that prosecutors called the first officer a liar during the December trial in support of this argument. The defense lawyers also suggested that even if the officer is eventually acquitted in the city circuit court he could still face federal charges. Per Department of Justice orders, federal prosecutors have been monitoring this case and were seen in court throughout the trial. The feds have made no such offer of immunity, and theoretically could use every bit of compelled state court testimony in a federal prosecution. While this seems like the stronger argument of the two, the shear historical strength of the 5th Amendment is perhaps the government’s greatest challenge to compelling the officer’s testimony. Ordering a defendant with a pending criminal case to testify against a co-defendant would be a direct shot at the 5th Amendment, and the implications would run contrary to decades of case law upholding the right to remain silent. The circuit court judge has a valid desire to move theses cases along, but the appeals courts will look at the bigger picture, and a ruling that undermines the constitutional protections afforded by the 5th Amendment is unlikely.

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