Criminal Defense Lawyer Blog
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marijuana-673845_640In September we published an article about the Anne Arundel County executive’s inexplicable crusade to ban medical marijuana form his jurisdiction. At the time the top local politician in Annapolis seemed dead set on undermining the state medical marijuana law by zoning it out of existence. In Maryland local politicians do very little legislation; their power is mainly derived from a near monopoly when it comes to zoning regulations. This includes both residential and commercial zoning decisions, and often times these regulations can have multi million dollar consequences for builders, developers, and investors. The executive’s proposal to prohibit countywide zoning for medical marijuana grow facilities and dispensaries may never have gained enough support to pass, but it no doubt unnerved investors and angered thousands of citizens and dozens of state lawmakers in the process. It was only recently put to bed for good, when the executive recently announced he will instead promote legislation that will make zoning laws for medical pot as strict as possible.

In a statement after a recent counsel meeting the executive boasted that Anne Arundel County would have some of the strictest zoning laws in the state. Among the regulations include provisions that no dispensaries or grow houses shall operate within 1,000 feet of schools and homes, and all will be prohibited from window displays of marijuana. These regulations are similar to those in Baltimore County, which also drew ire from state lawmakers who feel regulations under the medical marijuana program should be uniform throughout the state. The commission is set to start accepting grower and distributor licenses on November 6th, with the highly anticipated decisions over who gets the sought after licenses coming during the winter. Some investment groups have raised over ten millions dollars to assure their bids will be the most qualified, and losses from not receiving a license could approach seven figures. After the licenses are awarded the investors could still hypothetically face zoning hurdles with their respective local governments. Many of the investment groups have already selected sites for grow facilities and dispensaries, but it would behoove all  to be flexible.

The next few months are setting up for a true roller coaster ride for investors and others looking to cash in on medical marijuana. One can only hope that the process will play out smoothly, but with so much money at stake feathers are bound to be ruffled along the way.   This wouldn’t be the case if the commission had been a little more flexible with the number of licenses available. There is really no reason to limit the grower and distributor licenses, as it would make much more sense to award licenses to all qualified applicants. More applications would generate larger fees, thus allowing the program to have the funding to regulate all the participants. Plus the market would truly be free, and only the most efficient operations would survive. A competitive market would ultimately lead to patients having access to cheaper and higher quality medication. But we should never expect the most efficient outcome when it comes to government programs, and judging by how long it has taken Maryland to get its act together on medical marijuana, we should just be glad it’s actually happening.

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pills-943764_640The Maryland State Police recently announced one of the largest drug busts on the Eastern Shore over the last few years. On Tuesday a combined law enforcement initiative known as the Wicomico County Narcotics Task Force executed a search warrant at the home of a suspected heroin dealer. Two suspects, a 33 year-old male and a 33-year-old female, were arrested after police found 2.5 pounds of heroin, with a street value of approximately $500,000. Law enforcement also seized over $100,000 in cash, scales, plastic baggies, drug paraphernalia, ammunition, and three firearms. One of the firearms was a .22 caliber automatic assault rifle with a high capacity magazine and an obliterated serial number that prevented it from being identified. The other two firearms were handguns that had been reported stolen. One was a .357 revolver taken from Somerset County, and the other was a .40 caliber semi automatic pistol with an illegal extended high capacity magazine. The pistol had been reported stolen from Worcester County. The male suspect is being held without bail at the Wicomico County Detention Center, while the female was released after posting a $25,000 bail. Both have preliminary hearings set in the District Court, which will likely be cancelled after the cases are presented to a grand jury.

The investigation of the male suspect began back in January of this year, and law enforcement soon realized that they were potentially dealing with a large-scale heroin distributor. The narcotics task force, made up of state and local police departments including the Salisbury and Fruitland police departments and the Wicomico County Sheriff’s Office, conducted extensive surveillance of the male suspect and the residence that was searched. Police likely used multiple confidential informants and undercover officers to maximize the amount of evidence used in securing the search warrant. Nobody was injured when the search warrant was carried out this week, although a dog was shot and killed when it allegedly ran toward an undercover officer in an aggressive manor.

Upon consulting with the State’s Attorney’s Office, police eventually charged the pair with multiple drug and weapon related felonies, some of which carry minimum mandatory prison sentences. Both are currently charged with a violation of the CDS possession of a large amount statute that is part of the state law against volume dealers. This law is particularly harsh when it comes to heroin and other opioids, as only 28 grams are required to trigger a large amount charge. For comparison sake the 2.5 pounds that police allegedly found in this bust amounts to over 1,100 grams. This statute provides a minimum punishment of 5 years in prison, which upon conviction cannot be suspended and defendants are not eligible for parole. The pair is also charged with three counts of possession of a firearm in a drug trafficking crime, and each of these charges also carries a minimum 5 years without parole. Other charges include possession with intent to distribute and illegal possession of a firearm. The male suspect is also charged with firearm possession by a convicted felon because he was found guilty of felony CDS distribution of narcotics in 2004.

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mobile-phone-426559_640The Howard County Police recently reported that social media has led to the arrest of two burglary suspects, whose crime spree spanned multiple counties. One of the suspects is a 46 year-old male, while the other is a 22 year-old female. Both are accused of felony first-degree burglary and theft in Howard County and in Baltimore County, and the pair is currently in custody awaiting trial in the Baltimore County Detention center. Other charges include 4th degree burglary and false documentation. The alleged burglaries, which occurred 10 days apart back in August, have been indicted by a grand jury and will now be brought before a circuit court judge. The two suspects were not caught in the act, and managed to steer clear of law enforcement for almost a month. Ultimately though the pair was identified after the Howard County Police utilized social media in an attempt to generate leads. The modern crime-solving tool proved successful; arrest warrants were issued in the first week of September and both suspects were jailed less than two weeks later.

While police have only been utilizing social media for a few years, this crime-solving tactic has gained a tremendous amount of steam. Almost every law enforcement agency in the country has some sort of social media outlet such as Twitter or Facebook, and now it has become commonplace to ask the public for tips through these outlets. Law enforcement embraces the same benefits of social media as any business or private citizen. Social medial allows police to reach a large number of people at a fraction of the effort and cost of traditional methods such as billboard or television. The Howard County Police Department has roughly 38 thousand followers on Twitter, and can reach each of these followers immediately with a two-line tweet that takes a minute to type. The Baltimore County Police Department is a little behind with roughly 13 thousand followers, but even with this smaller number the effects can be considerable.

In addition to police departments soliciting information about crime through their own posts and tweets, law enforcement also takes advantage of social media in other ways. There have been numerous cases where police linked up stolen property to a person’s Facebook account. This usually occurs when the thief is attempting to sell the hot goods online, but it could also be in the form of posts and pictures of the suspects with the stolen property. In other crimes, Twitter accounts could also reveal where a suspect was at a specific time, and whom that suspect was with. Police detectives have now made it a habit to scan the social media accounts of all their suspects. In criminal cases involving juvenile or young adults police will often scan the Facebook, Twitter, and Instagram accounts of friends and classmates of the defendants and victims. The results have ranged from generating probable cause for a warrant, all the way up to providing prosecutors with evidence at trial. Defense attorneys are now seeing discovery packets laced with screen shots and printouts from social media sites. The public format of these sites makes the evidence difficult to suppress, as no warrants are required to scan a person’s Facebook or Twitter accounts.

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hammer-620011_640One year ago today Maryland made national headlines for officially decriminalizing simple marijuana possession, while back home the statewide buzz over decriminalization overshadowed each of last year’s new laws. The climate is vastly different this October 1st, as almost all the media attention is focused on an approaching hurricane rather than the on statue books. But there are a few new laws effective today in the criminal arena that have the potentially to dramatically impact the lives of thousands of Marylanders. One of these laws is actually related to decriminalization, and was likely the inspired by lawmakers taking simple marijuana possession off the criminal books. Starting today anyone convicted of an offense no longer classified as a crime under state law will now be able to apply for expungement. This is huge news for the far too many that have been carrying around the baggage of an unwarranted criminal record for years. The large majority of these cases will undoubtedly be for possession of less than 10 grams of marijuana, which will no longer be a permanent scar on a person’s background. In addition, those who received probation before judgment for possession less than 10 will no longer have to wait three years to apply for an expungement, as applications may be filed immediately, or in some cases as soon as probation terminates.

In addition to expanded expungement, the aptly named second chance law also goes into effect today. This law will allow those convicted of certain nonviolent misdemeanors to shield their conviction from public view after 3 years. The eligible offenses include disorderly conduct and disturbing the peace, failure to obey a law enforcement officer, malicious destruction of property less than $500, and trespass on posted property. Other offenses include possession of drug paraphernalia, possession of a noncontrolled substance, and prostitution. Soliciting a prostitute or assignation is specifically excluded from the shielding statute. The second chance law also applies to certain misdemeanor traffic offenses such as driving on a suspended license or without a license and driving while uninsured.

In addition to the three year wait, which begins after parole or probation has ended, defendants wishing to avail themselves of the shielding statute must also be aware of other conditions. One important limitation is that person may only shield prior convictions once during his or her lifetime; so choosing wisely when to apply is of great importance. The statue was designed to give a prior offender one free pass when it comes to seeking employment or applying for school or some professional licenses, but it was not designed to give two or more free passes. If you apply to shield your prior convictions you must do so with the knowledge that it’s a one shot deal. Another provision prohibits shielding one particular conviction if there is a non-shieldable conviction attached to it. Finally, if an applicant incurs a new conviction during the three-year wait period, he or she will be prohibited from shielding the original offense unless the new offense is also eligible for shielding.

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medpotAs close as we are to fully functioning statewide medical marijuana, it still seems at times as if the day may never come. The Governor approved the General Assembly’s medical marijuana proposal almost six months ago, and applications for grower and distributor licenses are on the brink of being processed. But now local politicians are attempting to disrupt the progress of state lawmakers and appointed department of health commission members, while at the same time ignoring the will of a large majority of Maryland citizens. This local power wielding started a couple months ago when a Baltimore County politician proposed increased zoning restrictions on dispensaries and grow houses. The Baltimore County Council passed these regulations earlier this month, but their utility was challenged by the County Executive and state lawmakers from the area. Both described the increased local regulations as unnecessary because of the comprehensive nature of the state regulations, which already address the location of grow houses and dispensaries. While the increased zoning regulations in Baltimore County might be entirely an act of grandstanding for local politicians, at least they will not severely hinder the progress of the state medical marijuana program. The same cannot be said for an Anne Arundel County politician’s proposal.

The Anne Arundel County Executive is set to introduce legislation tonight at a council meeting that would prohibit the sale and production of marijuana anywhere within county lines. This legislation would be a slap in the face to state lawmakers, the governor, and the majority of the people of the state of Maryland who all want a statewide functioning medical marijuana program. The executive’s reasons for moving to ban medical marijuana from Anne Arundel are the same old rhetorical outdated nonsense. He rants about marijuana being a gateway drug, and potentially causing economic stagnation and increased criminal activity. These arguments are tired and ill informed, and none have any relevance to the issue of marijuana for medical use. The executive wants to deny patients the ability to obtain something that has been proven without a doubt to make them feel better because he, and others of his generation and background have a personal vendetta against marijuana and its culture. Thankfully the legislation is likely to fail in the county council, but we will update the Blog when an actual vote occurs.

The Anne Arundel politician also sites the fact that medical marijuana will simply lead to legalized recreational marijuana, and he will not stand for that in “his” county. Again he offers not one logical and factually supported argument of why recreational marijuana would contribute to increased crime or economic stagnation. If the executive is worried about increased criminal activity from legalized drug use it really doesn’t show, as his very own Annapolis is lined with more bars per square mile than almost every other city in Maryland. Alcohol is celebrated and imbedded in the culture of our waterfront capital city (and every other city and town in the country), and yet empirical data shows is causes more death, illness, and violence than all other drugs combined. It’s legal because people enjoy it and it generates billions of dollars in commerce. Why does everything have to be good for you in order to be legal, and since when does the government know what is good for you anyway? One day marijuana will be legal as well for the same reasons, because people enjoy it and want to do it. Yet unlike alcohol it will not bring with it thousands of documented deaths per year, and it will not be a contributing factor to an even greater number of incidents of violence.

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school-417612_640A Baltimore County 8th grade boy was arrested last week and now faces assault charges for allegedly kissing a female classmate. Police officers responded to Pikesville Middle School on Wednesday after school administrators reported that the 13-year-old boy grabbed a 14-year-old female by the shirt, and then kissed her on the mouth without her permission. The female was also an 8th grade student at Pikesville Middle. The boy stated to officials that he kissed the girl in response to a dare from fellow classmates, and now the incident has sparked national debate whether the incident should have been handled differently. School officials could have handled the incident internally under the student code of conduct, but instead opted to involve county police. The officers who responded to the scene acted under state law in charging the boy with misdemeanor second degree assault. This offense carries a maximum penalty of ten years in jail, but because this incident will be filed as a juvenile case the statutory maximum penalties do not apply. A juvenile filing also means that all information about the case will be under seal and off limits to the public. If the state’s attorney’s office decides to prosecute the case it will be heard in the circuit court in Towson.

Unlike other jurisdictions, Maryland classifies the crimes of assault and battery under the same statute. Under the traditional common law assault is generally defined as a threat to do harm combined with the apparent ability to carry out the threat, while a battery is defined as an intentional and unwanted physical touching. In other states this incident would have likely been classified as a simple battery case, but here it falls under the umbrella category of assault. Injury is never a required element of a simple battery, and the same applies for the second degree assault law used in our state courts today. The girl involved in the kissing incident was not injured, but she did not consent or welcome the kiss. Clearly the act was intentional, which means the two basic elements of a crime were satisfied. But whether a crime on paper actually happened, and whether the criminal justice system should be involved are two separate issues.

There are compelling arguments for both sides of the controversial kissing arrest. On one hand you have to maintain the message that any type of unwanted physical touching will not be tolerated, with our society demanding even more emphasis placed on unwanted sexual contact. If the potential punishment is not severe enough there will be minimal deterrent for this type of behavior in the future, which has the potential to escalate to other more serious violations than a kiss on the mouth. On the other hand, you have to take into account that the accused is a 13-year-old boy who lacks the ability to completely understand and evaluate his actions. This is not to say that punishment and accountability are inappropriate in this particular incident, but subjecting a 13-year-old to an arrest and criminal prosecution is undoubtedly a traumatizing experience that may not be warranted under these facts. Ultimately it will be up to the state’s attorney’s office whether to pursue this case in criminal court, and they will likely involve the victim and her parents in the decision. The Blog will follow this case and may post a follow-up, with the caveat that a sealed status could limit information that is available to the public.

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dollar-897092_640Committing the perfect crime is a deceiving proposition. While a perfectly executed heist may result in co-conspirators leaving the scene with their score, perfection in often the fatal mistake that causes their arrest a short time later. Whenever a robbery, theft, or burglary is performed at exactly the most opportune time, with the highest value and the least possible resistance, a seasoned detective will automatically assume an inside job. The suspect pool for an inside job is infinitely smaller, thus ruling out insiders is often the first step for law enforcement. Just like a murder case where cops often focus their initial inquiry on the current or ex-spouse, in a heist police first turn to employees of the business that was robbed. This is exactly what happened almost 3 years ago when over $270,000 was stolen from an armored car employee in Prince George’s County.

In the fall of 2012 the branch manager of a Hyattsville Bank of America conspired with one of her security guards and four other men to steal the bank’s money. The six carried out their plan on November 21, while the manager and the security guard were both on duty at the bank. Just as an armored car employee carrying the large amount of cash was leaving the bank the armed co-conspirators pounced. There was little resistance, and the four hired guns drove off with the money in vans they had parked outside the bank. Nobody was injured, and for a while the bank manager and her crew happily split their share of around 45 thousand each.

For a short time all six probably thought they got away with it. But federal agents, who typically handle bank robberies due to the money being federally insured, were not stumped for long. The four gun-toting bandits knew the time of the pickup, and that particular day the cash load was particularly large. Few people would have this type of knowledge, so agents were left with two scenarios. One theory would have been a team of highly experienced bank robbers who did thorough research on the bank before carrying out their flawless plan. But to risk their lives for a mere $270 thousand split four ways was unlikely, and something not even fit for the movie screen. The other theory would have been an inside job, where the bank employees and their crew knew the chance of being foiled in the act was low.

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cellular-tower-28883_640 A secret cell phone tracking system used by law enforcement for over a decade is slowly being exposed, but defendants and their attorneys are still being left in the dark in thousands of criminal cases each year. The technology commonly referred to as stingray consists of an array of sophisticated electronics, which fit inside a box about as big as a suitcase. The cost is steep, with each unit running over $400,000, and the right to use it comes with the catch of signing a non-disclosure agreement with the FBI and receiving training with the Secret Service on cellular theory. The general premise of the device is to simulate a cell phone tower to lock into a specific phone, which can ultimately lead the operator and his or her team to within a few yards of the target. The exact range of the device is unclear, but law enforcement apparently must first secure a general location from the cell phone company before deploying the stingray. Baltimore City’s so called Advanced Tactical Team has used this system over 4,000 times since 2007, resulting in thousands of arrests and hundreds of convictions. But the success of this surveillance technology comes at a high price.

While stingray system does not have the capability to intercept cell phone content such as text messages or pictures, it does capture information from almost every cellphone in its range. This typically includes phones of dozens of innocent bystanders who as a collateral consequence are electronically tracked by police.  The unintended location tracking of innocent phone users by law enforcement is disconcerting, but it’s hardly a cause for outrage. The real concern is that use of the stingray system has created a climate of blatant disregard for the Constitution, and the Maryland electronic surveillance laws to boot.

In Baltimore the thousands of stingray aided arrests were most likely effectuated in violation of state electronic surveillance laws. City police officers rarely considered applying for search warrants to use stingray, and most of the time would not even notify prosecutors when they used the hi tech system to locate the suspects they arrested. Police would deliberately fabricate their reports as if using the stingray system never happened, stripping defendants and their attorneys of the opportunity to challenge the legality of the surveillance. In cases where prosecutors and defendants asked too many questions, such as when cops magically appeared in the exact right place to solve a crime with no explanation on how they got there, the police officers would button up and site their non-disclosure agreement with the feds. Most of these cases where the police work was seemingly too good to be true ended up being dismissed, and in total about one third of the over four thousand stingray arrests in Baltimore suffered this same fate. These numbers included serious felony arrests such as kidnapping, robbery and murder, which according to the FBI are solved each day using the stingray. But the technology is often used in less serious cases such as theft, drug distribution and destruction of property, where it is much tougher to justify ignoring privacy laws. Regardless of the eventual outcome of the stingray cases, damage is done as soon as an illegal arrest is carried out. You cannot simply unarrest a defendant whose rights have been violated.

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medpotEach step toward a viable medical marijuana program brings with it numerous unforeseen obstacles, and it’s been that way in Maryland since 2013. Two years ago lawmakers in Annapolis passed the state’s first medical marijuana program only to see zero institutions take them up on the offer. The legislature thought it was being progressive back in 2013, but the strict program regulations proved otherwise. The following year the General Assembly went back to square one with their sights now set on developing a program that was actually feasible. The regulations were again modified this past year, but once again it was way too early to celebrate. Lawmakers reached an agreement on the number of grower and distributors licenses, but there was still much to be determined about how the application and selection process would evolve. As it stands now the regulations are still not finalized, and probably wont be until next month. No applications are currently being accepted, and all told we’re now looking at late 2016 for the state’s first functioning marijuana dispensaries to open shop. Even this timeframe may still be slightly optimistic, as local politicians may now attempt to restrict the location of the 94 licensed dispensaries.

Generally speaking, our state laws are drafted and voted upon by either senators or representatives, and then approved by the General Assembly and the Governor. Local governments also are free to enact their own laws, provided they don’t interfere with state or federal laws, but local ordinances are less visible as a means to govern the public in Maryland. In the criminal law field local ordinances are few and far between as the state criminal code is thorough. The few local ordinances with criminal consequences we see are typically open container laws (such as in Ocean City), litter laws, and noise violations. In most jurisdictions the most important duty of local politicians is to enact zoning regulations. This is not to say their job isn’t important, as zoning decisions often have millions of dollars at stake.

Local politicians have the ability to become involved in the medical marijuana process if they decide to exercise their zoning authority to restrict the location of growers and dispensaries. In theory a county council member could enact zoning regulations that would completely ban medical marijuana, thus effectively making the state program non-existent in a particular area. This is exactly what may be happening in Baltimore County, as a member of the county council has indicated a desire to introduce restrictive zoning requirements for medical marijuana dispensaries. These restrictions include being 1,000 feet from schools, day care centers, parks, places of worship, and libraries. The proposal would also keep dispensaries in the county at least 2,500 feet away from each other. State politicians, such as senator Zirkin, have taken exception to this type of local proposal, stating it would in essence thwart the state legislature’s attempt to make medical marijuana available to patients in need. Zirkin explained that dispensary zoning regulations should be no more restrictive than those placed on pharmacies, which dispense far more addictive and powerful drugs than pot. The Baltimore County Executive agrees, stating that there is no need for new medical marijuana local zoning laws.

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1010760_dna_1DNA collection and preservation by law enforcement has been one of the more hotly contested privacy issues of the last decade. The presence of a defendant’s DNA at a crime scene is often the most compelling state’s evidence at trial, while the lack of DNA at the scene can be equally as strong for the defense. Maryland law gives police the right to take a suspect’s DNA sample in certain arrests, and this procedure is usually done with a minimally evasive cheek swab. No warrant is required to take the swab pursuant to a federal court decision from two years, which established that DNA triggers similar privacy rights to a booking photo or a fingerprint. Additionally submitting to a DNA sample is not testimony, and therefore a defendant does not have the right to consult with an attorney prior to opening up for the swab. There’s no denying the power of DNA evidence in open law enforcement investigations, as both the defense and prosecution have hung their hat on it thousands of times. But controversy arises when DNA collected for an entirely different reason is used to solve a cold case, or a criminal case with no leads. Recently, The Maryland Court of Appeals handed down a decision that may once again spark the nationwide DNA debate.

Three years ago an Anne Arundel County man voluntarily submitted to a law enforcement DNA swab after he was suspected of being involved in a rape. The sample didn’t match and the man was cleared of any wrongdoing in the rape, but just one year later he was indicted on a burglary charge that had actually occurred five years prior. Police had kept his voluntarily submitted sample and plugged it into a database for the cold case burglary. When the sample matched the man felt he had no defense, and pled guilty to a four year suspended sentence. The defense appealed stating that keeping and using the man’s DNA for another purpose than the rape case amounted to an illegal search and seizure that violated the Fourth Amendment. The Maryland high court judges disagreed, and ruled that once police lawfully obtain a person’s DNA they are free to keep it and use it for any law enforcement purpose. Once they have it, they get to keep it.

The decision by the Court of Appeals is hardly groundbreaking. Police have been holding on to fingerprints for decades. But that’s not even the most compelling argument for the government. The protections of the Fourth Amendment prevent law enforcement from illegally infringing on our right to live as private citizens. When cops overstep their boundaries to obtain evidence then it is a judge’s duty to suppress everything that flows from the illegal intrusion. But when law enforcement conducts a legal search or seizure any other unexpected pieces of evidence they recover are fair game. If cops execute a search warrant looking for drugs and instead find illegal firearms and stolen property, then the defendant will be charged accordingly. All the evidence will be admissible. It’s the same principal with DNA collection; if law enforcement lawfully takes a sample for one investigation, they are free to use it if it matches on another investigation. This decision is not one that will please defense attorneys, but it’s hardly the most surprising one to come out of Annapolis.

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