Criminal Defense Lawyer Blog

A coalition of people including lawmakers and religious leaders recently filed a lawsuit in federal court challenging the Maryland governor’s stay at home order that has been in effect for several weeks.  The order required the shuttering of all non-essential businesses and banned gatherings of more than 10 people under all circumstances.  Even as talk of reopening the state has picked up steam, there is no firm end in sight and business owners are beyond restless.  The lawsuit, which was filed in the Baltimore City federal courthouse, challenges the constitutionality of the governor’s order.  This is not the first lawsuit of its kind, as federal judges in numerous other jurisdictions have heard similar motions.  There is no timetable as to when a ruling will come down in this particular motion, but the Attorney General’s Office is not backing down.  Reports indicate the AG submitted a memo of law citing prior decisions where federal courts have denied similar challenges to state executive orders.  Case law is pretty clear that governors have broad authority to act during public health emergencies, and at this point there is nothing in the Maryland order that seems reversible.

By the time a federal judge issues a ruling in this case the motion may be moot, as reports seem to indicate that the number of patients hospitalized with Covid-19 has plateaued in Maryland.  Still, we could be weeks away from a reopening that would satisfy the group that filed the motion.  The governor and other state officials recently introduced a three-phase plan that would begin with an opening of lower risk business and entities such as small shops, outdoor gym and fitness classes, outdoor recreation facilities, and limited attendance outdoor religious gatherings.  Phase two would include medium risk businesses and entities such as indoor gyms, childcare centers, restaurants and bars (with restrictions), indoor religious gatherings and elective medical procedures.  The final phase includes high risk activities such as entertainment venues, high capacity bars and restaurants and larger gatherings among people.

Anyone who reads through Maryland’s roadmap to recovery PDF will see that there is no mention of the judiciary or any courthouse guidelines.  The judiciary is an independent branch of government, and as such may not legally be able to be controlled by the governor’s office.  Thus far, the judiciary has been acting alongside the governor’s office in closing down to the public, but it will be interesting to see what happens in the coming weeks.  Maryland state courts are currently only operating on an emergency basis, and are closed to the public.  As of now the district and circuit courts around the state are scheduled to open to the public on June 7, but there is still a great deal of uncertainty whether this will actually happen.  If the courts do open on the first Monday in June there are also no firm details on what the courthouse experience will look like.  It certainly will not be business as usual, with packed courtrooms and long lines at security.  Many court clerks are still holding off on resetting cases that have been postponed, as some cases have been rescheduled numerous times due to fluid nature of the reopening date.

This past Friday planes equipped with high tech surveillance cameras began flying over Baltimore City as part of an experimental effort to solve violent crimes.  The planes will be in the air for up to 6 months, and the footage will be monitored on the ground by officers from the Baltimore Police Department.  City taxpayers are not footing the bill for the planes or the cameras, as a Texas based philanthropic organization has already pledged $3.7 million to conduct the pilot program.  The aerial surveillance system uses wide angle lenses that can allegedly monitor 90% of the city, though the planes will only fly during the daytime and the aerial cameras will be not be able to make out faces or read license plates.  The hope is that the aerial footage can be used to supplement Citywatch street cameras and other technology on the ground.  After a crime is reported an analyst will rewind footage to the location, and follow suspects or vehicles until a higher definition camera on the ground can communicate identifying information to police.

Despite the fact that people and cars will only appear as a pixel that reveals no personal identifying information, the ACLU tried to block the pilot program by filing for a restraining order in the United States District Court.  The ACLU argued that the program is unconstitutional, and has the power to track every private citizen in Baltimore as soon as they walk out their front door.  They also argued that continuous aerial surveillance infringes upon reasonable expectations of privacy regarding movements, that could result in warrantless searches, and compared the program to a police officer following every resident wherever they go.  Law enforcement and the company flying the planes have stated they have no intention of following any citizen unless it is in direct response to the occurrence of an egregious violent crime.  Specific crimes cited by BPD include murder, attempted murder, armed robbery, carjacking and shootings.  A federal judge unsurprisingly denied the request for restraining order, citing that federal courts have previously upheld greater government encroachment in the past.

The Blog will certainly continue to follow this story and will post a follow up article in the future as news develops.  The media, politicians and citizens will be waiting to see how effective the pilot program is at solving crime, but from a criminal law standpoint solving crime does not mean simply making an arrest.  In any case where aerial surveillance was used to capture a suspect there is a high likelihood that the defendant’s criminal defense lawyer will move to suppress the evidence.  As long as the police department follows the protocol and limits the surveillance to its intended purpose these motions likely will be unsuccessful.  It does not seem overly intrusive to have low definition cameras overhead, and there is a much lower expectation to privacy when a person is out in public.  On the other hand, the BPD has proven to be incapable at following rules in the past so there may be some angles for lawyers to explore.  If the program does have documented success there is every reason to believe we’ll start seeing planes fly in other smaller geographical areas with high crime rates such as St. Louis, Detroit, Memphis and the South Side of Chicago.

Police in a wealthy suburb outside of Philadelphia recently arrested a 24-year old Maryland woman for allegedly attempting to deliver 100 pounds of marijuana to buyers waiting in a parking garage.  The marijuana was described by police as high grade, and apparently worth as much as $200,000 on the street.  This bust appeared to be the result of a long-term investigation into a high-volume drug trafficking ring between Maryland and Philadelphia.  Law enforcement officers were tipped off about the delivery prior to the woman arriving at the scene of the deal, and began to follow her as she entered the parking garage.  According to reports she was arrested before completing the deal, and a search incident to arrest of her vehicle revealed three duffel bags with numerous vacuum sealed bags of pot.  Police did not immediately release any information about the other two individuals allegedly involved in the failed drug deal, which could mean they were either undercover police officers or working with the government.  At the time of the press release the defendant was still being held in jail on a $150,000 cash bail on felony charges of possession with intent to distribute marijuana.

Normally the Blog does not post about criminal incidents that occur outside of the state of Maryland, but this bust is of not for two reasons.  First, the woman is a resident of Anne Arundel County, which has a long history of high-volume drug busts.  There are numerous highways running through Anne Arundel County and many a drug dealer has been busted after a highway traffic stop.  This defendant was from Edgewater, which is right near Highway 50 and Interstate 97.  The second reason the bust is of note is that the defendant was reportedly trying to use the Covid-19 outbreak as an opportunity to traffic a large amount of marijuana.  The press releases did not say specifically how the defendant was trying to use Covid-19 for cover, but the logic does not add up.  As we posted a few weeks back, overall crime has been down virtually everywhere and police officers have more ability to focus on suspicious activity in their jurisdictions.  While we do not know for sure that the car was registered in Maryland, a car with an out of state license plate that is traveling to meet another car in a parking garage will always raise suspicion.  During this pandemic the suspicion will be exponentially higher, as out-of-state travel has been greatly reduced.

The Blog will continue to follow this case and may post a follow up article if anything newsworthy develops.  This defendant does not appear to have any other pending criminal charges (at least in Maryland), so there is a chance she will be able to work out a favorable outcome in her case.  As always, the priorities for any criminal defense lawyer should be keeping the client out of jail and keeping the client’s record as clean as possible.  While Pennsylvania is typically considered a stricter state for most crimes, had this arrest occurred in Maryland the defendant would have faced drug trafficking charges pursuant to the volume dealer law.  Under the volume dealer statute any defendant who is possesses, manufactures or distributes more than 50 pounds of marijuana faces a 5-year mandatory prison sentence that cannot be suspended by the trial judge.  In addition, there is the possibility of a $100,000 fine and a felony conviction.  For any questions contact Maryland drug crimes lawyer Benjamin Herbst anytime at 410-207-2598.  Benjamin defends clients in all criminal charges and is available 7 days a week to offer a free consultation.   He accepts cases in all Maryland jurisdictions and is an experienced federal criminal defense lawyer who handles felony offenses and federal citations in all federal courts throughout the state.

Over the weekend the governor signed an order that should expedite the release of hundreds of Maryland prisoners.  There are some caveats to the order, and it only applies to prisoners serving sentences in the state-run Division of Corrections.  The governor had received multiple formal requests to consider measures to reduce the prison population in light of the Covid-19 outbreak, and this recent order is a major step in the right direction.  As of last week, there were over 130 inmates who tested positive for the virus, and the close quarters of prison facilities make social distancing guidelines impossible to follow.  While the order may be viewed as too little too late to some, even a slight reduction in the total number of inmates could exponentially reduce the risk for further spread of the virus.  The crux of the order is that it authorizes the Division of Corrections to expedite the release of any inmate who is scheduled for mandatory release within 120 days.  While DOC will not simply open the doors to those inmates with under 4 months to serve on their sentences, they could realistically be placed on supervision or home detention within a week or so.  The order also allows DOC to initiate accelerated parole for certain inmates who are over the age of 60 and have not been convicted of a crime of violence.

The order does not apply to incarcerated individuals who are serving a county sentences of less than 18 months, and those awaiting trial in county and city detention centers.  Inmates at theses facilities are not eligible for release under this particular order, but may take advantage of other orders signed by the Chief Judge of the Court of Appeals.  The Chief Judge of Maryland’s highest court in Annapolis has issued numerous orders over the last 6 weeks.  Two of the latest orders focused on encouraging judges to expedite bail review hearings and strongly consider releasing any inmate who is being held pretrial on a nonviolent charge.  The order also required the administrative judges in the district and circuit courts to schedule hearings on the next business day following the service of a warrant for a technical or minor violation of probation, a failure to appear bench warrant and warrants related to failure to pay costs or fines.  While the bail review judge still has final discretion over releasing a defendant, the hope is that judges will take this emergency situation into account and choose to release a defendant if there is any reasonable means to assure the public safety and the defendant’s return to court.

If you have an outstanding bench warrant or arrest warrant it is advisable to contact a lawyer to find out how these orders can be used to your advantage.  Judges may be more likely than ever to consider motions to recall outstanding bench warrants.  In addition, if there is an arrest warrant that cannot be recalled by a district court judge, a commissioner may be more inclined to grant bail or pretrial release at a first appearance hearing.  The Blog will continue to follow executive orders and orders signed by the Chief Judge, and may post a follow up article in the near future.  Maryland state courts are closed to the public until June 7, but judges are still conducting certain hearings via telephone or Skype.  As usual, the courts will continue to regularly hear bail review hearings and other emergency requests.  Benjamin Herbst is an experienced Maryland bail review lawyer who represents defendants in all criminal cases including domestic assault, firearm possession and drug crimes.  Benjamin represents defendants in all Maryland state and federal jurisdictions including Baltimore City and County, the Eastern Shore, Montgomery County, Prince George’s County, Western Maryland and Southern Maryland.  He has successfully represented over 1,000 defendants in criminal cases, and is available anytime for a free consultation at 410-207-2598.  Benjamin offers flexible payment plans for criminal defense cases and will do whatever it takes to achieve the best possible outcome.  Benjamin also represents clients who are injured in Maryland auto accidents, and fights to recover the maximum settlement in your case.

Overall crime appears to be on the downturn during the coronavirus pandemic, but drug crimes may be falling at especially high levels.  The city of Chicago has more yearly crime than many states in America, but over the past month drug arrests have plummeted by 42%.  While Baltimore and D.C. have yet to release any quarantine specific statistics, there is no doubt that drug arrests are down in our area as well.  Prohibitions on large gatherings and non-essential activities has made it easier for police to focus on people that may be involved in criminal activity, and as a direct result less people are out on the street looking to buy drugs.  While the same demand for drugs likely still exists, the dealers and buyers are having a much harder time connecting to do business.

In addition to drug crimes declining, Chicago’s overall crime rate has dropped about 10 percent since the shutdown of all non-essential activities.  Fewer businesses are open, which means limited opportunity for common offenses such as retail theft and trespassing.  There are also considerably less people out on the roads, which means DUI and driving on suspended or revoked license cases are down as well.  Less people out on the roads also means less traffic stops, and traffic stops are one of the most common ways that police and citizens come in contact with each other.  Law enforcement officers are trained to look for evidence of crimes in all traffic stops, and hundreds of drug and firearm cases originate from routine traffic stops.  While there has been no indication that domestic violence cases have decreased, and certain cities such as Houston even reported an increase in domestic violence calls, the closure of bars and nightclubs has reduced cases involving disorderly conduct and non-domestic assault.  Another factor to consider is there may be less police officers patrolling the streets.  In New York City, the NYPD has almost 7,000 officers out on sick leave, and police officers may be reluctant (or ordered) to avoid citizen contact unless absolutely necessary.  This is definitely the case in Baltimore, where the State’s Attorney’s Office is declining to prosecute minor misdemeanor charges.

The crime drop has not been limited to the United States, as Peru recently reported an 84% decrease in its crime rate over the last month.  South Africa and El Salvador have also reported significant drops in violent crime over the course of the last month.  Based on what we have seen across the world it seems like March, April and May will end up being with extremely low arrest numbers in Maryland.  The low will undoubtedly be followed by a significant spike once things return to normal, though a return to normal won’t just happen overnight.  The Blog will continue to follow all criminal news stories during this unusual time.  Law enforcement officers in Maryland have continued to make arrests for violations of the governor’s executive order, which is a misdemeanor offense under the public safety code.  As of this week, 34 people have been arrested for this offense, including a Charles County man who held a 60-person bonfire party after being warned to stop hosting parties.  A pawn shop owner in Queen Anne’s County was also arrested for continuing to operate his business, and a Carroll County man was arrested for hosting a hotel party with minors present.  We will continue to comment on these stories, and will update on any future court closures as news comes out of Annapolis.  If you have been arrested for any offense in Maryland contact criminal defense lawyer Benjamin Herbst for a free consultation.  Benjamin specializes in drug crimes, domestic assault, juvenile criminal cases, DUI and felony offenses in every Maryland jurisdiction.  Contact Benjamin anytime at 410-207-2598.

It has been a little over one month since the governor declared a state of emergency in Maryland due to the outbreak of COVID-19, and multiple executive orders have followed.  The most recent order reaffirmed the governor’s decision to close non-essential businesses such as fitness centers, bars, theaters, malls, tanning and hair salons, and recreational establishments such as campgrounds and golf courses.  The order also prohibits large gatherings of more than 10 people and essentially requires citizens to stay at home unless they are performing an essential task such as working, shopping for essentials items or taking care of people or pets.  This executive order is not a suggestion, and provides criminal sanctions for non-compliance.  Police have the authority to arrest and charge anyone who they witness to be in direct violation of the executive order, and it didn’t take long for the first arrests to be reported.

As of yesterday, 14 people had been arrested for violating the executive order, which is a first-degree misdemeanor that carries up to one year in jail and a $5,000 fine.  The actual criminal offense is listed in the section 14-3A-08 of the Maryland Public Safety Code.  The public safety code is best known for its laws prohibiting firearm possession by certain individuals, but it also deals with the rarely used Governor’s Health Emergency Powers.  A violation of this statue must be knowing and willful, and it cannot be assumed a person was aware of the executive order.  While must people have been glued to the news for the past few weeks, the current situation is still being underestimated by some.  This probably means that most or all of the individuals who were arrested were warned by police before they were taken into custody.

Based on what we have seen in various news outlets, it seems like most of the arrests stemmed from parties where individuals were violating the provision of the order banning gatherings of more than 10 people.  Two Salisbury men were recently arrested under this circumstance, and one was found to have a weapon after being searched incident to arrest. Both were also charged with failure to obey a law enforcement officer, which is a 60-day misdemeanor similar to disorderly conduct.  These two individuals are scheduled to appear in Wicomico County District Court on June 5, though it is still up in the air whether court will be in session at that time.  As of now, courts are closed to the public until May 4, and all trials scheduled for April will be postponed.

Last week the Chief Judge of the Court of Appeals issued an order extending the closure of all state courts to the public through May 1, 2020.  Anyone who had a criminal trial set in the Month of April will have their case automatically reset to a later date, likely in June or beyond.  This applies to circuit and district court trials, and any motions that require witness testimony.  Judges and court staff will still be working at courthouses around the state, and will be ruling on motions that do not require witness testimony or the introduction of evidence.  This includes motions to recall bench warrants and arrest warrants.  Anyone who has a warrant for a failure to appear or for a violation of probation should write to the judge or contact a lawyer to file a motion to recall that warrant.  This is not the time to be picked up on an outstanding warrant and taken to jail.

If a person happens arrested on a district court bench warrant, he or she will be taken before a court commissioner, who hopefully will order release on recognizance.  Defendants that are not released by the commissioner will be taken before a district court judge the next business day.  The defense lawyer and a prosecutor will be the only non-staff members to be permitted into the building for the bail review hearing.  Family members and witnesses will not be permitted to enter and attend the hearing.  Anyone arrested on a circuit court bench warrant will not see the commissioner, and be taken directly before a circuit court judge on the next business day.  The same rules apply in the circuit court regarding who may attend the hearing.  Maryland circuit courts will also conduct habeas corpus bail review hearings as normal, and in many cases the hearings will be set sooner than normal due to the circumstances.

In addition to bail reviews, the district court judges will also continue to handle body attachments and emergency evaluation petitions.  District court judges will also preside over new quarantine and isolation violations that the governor put in place.  District court commissioners will hear protective order petitions, and if granted they will remain in place as temporary protective orders until court is back in session.  District court commissioners will also hear bench warrant satisfactions, which means that if a motion to recall bench warrant is denied the defendant may report to a commissioner to take care of the warrant.  Any defendant who turns him or herself in with the commissioner may have an attorney present at the hearing.

Last week the Baltimore City State’s Attorney made headlines for publicly directing her prosecutors to dismiss numerous non-violent cases.  The cases that will be dismissed involve defendants who are arrested on new charges in Baltimore City during these extremely unique times.  The charges specifically mentioned by the State’s Attorney include CDS drug possession, prostitution, trespassing, attempted distribution of CDS, open container, traffic citations, rogue and vagabond and urinating in public.  It is important to understand that anyone who has already been charged with these offenses will not simply get a pass when their case eventually is scheduled for trial.  The directive only applies to the prosecutors that are working in the Central Booking jail facility, which means only defendants taken to jail will have their cases dropped.

At first glance the press release makes it seem like the Baltimore City prosecutor is softening up on non-violent crime in these trying times, but in reality the purpose of the directive seems to be aimed at reducing the population at central booking.  Police officers are now on notice that if they arrest a defendant for certain non-violent offenses, their work will be in vain.  But arresting a suspect for a non-violent crime is hardly the norm these days, nor should it be.  Police in Baltimore City can still detain individuals for drug possession, trespassing, prostitution and for breaking into cars (rogue and vagabond), but they will have to charge those suspects by issuing a citation or a summons to appear in court.  For the time being in Baltimore City, it will be catch and release for most non-violent offenders.

This press release came a few months after the State’s Attorney had already directed her prosecutors to dismiss all marijuana possession cases.  She has received pushback for ignoring the legislative process by choosing not to prosecute certain laws, so it’s easy to see why the critics might be jumping up and down about this news.  A Baltimore mayoral candidate called the directive a PR stunt and insinuated that the prosecutor is abusing her power.  In a less direct criticism, the Carroll County State’s Attorney publicly stated that his office would continue to enforce all Maryland laws, and that no suspect would be given a free pass.  He also went on to state that his office will continue to prosecute any violations of the governor’s temporary executive orders, which among other things closed down gyms, restaurants for dining in, bars and prohibits gatherings of more than 10 people.  Any violation of these and potential future executive orders could result in a jail sentence of up to 1 year and a $5,000 fine.

On Friday the Chief Judge of Maryland’s highest court signed an administrative order closing all state courthouses to the public for at least the next three weeks.  The announcement may have initially been a surprise, but as the impact of the coronavirus continued to unfold it was clear the judiciary had no other option.  It is important to know that the closure only applies to the public and not judiciary employees.  The district and circuit courthouses will continue to operate, and judges will continue to issue rulings on motions.  All criminal trials and most other hearings will be postponed.  One of the main exceptions is that bail reviews will still proceed as normal.  Defendants arrested during the next three weeks will still see the district court commissioner within 24 hours to determine whether bail, pre-trial supervision or recognizance is appropriate.  If release is denied by the commissioner, defendants will then see a district court judge at a video bail review the next business day.  In Baltimore City it could take two business days to see the judge, and as many as 3 or 4 total days if the arrest occurred on a Friday.   Defendants arrested on circuit court arrest warrants will be taken before a circuit court judge the next business day, and those with preset bails will be permitted have bail bondsmen post.  It is unclear at this point whether family members will be permitted to attend bail review hearings. The most likely scenario is that attendance will be limited to the defendant’s lawyer.

In addition to bail reviews proceeding as normal, habeas corpus motions will also be heard in the circuit courts.  Habeas corpus motions are filed when a district court judge denies bail, and are typically the fastest and sometimes only way to have a defendant released prior to trial.  Habeas motions are popular in larger jurisdictions such as Baltimore County, where the turnaround time of 10 days to 2 weeks will likely speed up due to the postponement of most other hearings.  Habeas motions are often successful due to the circuit court judges having the experience and knowledge required to make the unpopular decision to release a defendant who is facing serious charges.  It is safe to say at least some district court judges are known for not abiding by the principal of using the least restrictive means to assure the public’s safety and the defendant’s return to court.

Other district and circuit court hearings that will proceed normally include peace order and protective order petitions, arraignments, initial appearances, extradition hearings, and various juvenile hearings such as shelter hearings and juvenile detention hearings.  Contempt hearings and appeals from district court peace orders will also be held in the circuit court.  The judge also included text in the order to allow the courts to conduct quarantine and isolation hearings should they be placed into effect during this extraordinary time.  We obviously hope these lines prove to be merely a precautionary measure.