Had an interesting Motion to Suppress yesterday that was granted. The issue involved the seizure of pills from the console of my client’s vehicle. We dealt with those drugs before we dealt with the arrest for possession of marihuana. That too was suppressed, but the pills were more interesting. Assuming the client was arrested lawfully and the search was valid, was the seizure permissible? The police officer could not identify the pills as being a controlled dangerous substance, so he did not have reasonable grounds to seize them. There is an exact MD case on point from our Court of Appeals that dealt with the exact issue. Just because you have a right to search does not mean you have a right to seize. I understand the police were not to happy, but the officers wrote a truthful police report and testified honestly.
Archive for the ‘Search and Seizure’ Category
Motion to Suppress
Wednesday, August 17th, 2011The Judge had the SFSTs performed on her, she passed, but the police officer failed
Thursday, March 17th, 2011The judge today asked the police officer to perform the tests on her exactly as on the client. On the HGN he held the stimulus so high she had to crane her neck. I showed him the NHTSA Manual and he agreed it was held to high. On the one-leg stand he told to hold her foot up like a Rocket. Once again the NHTSA Manual showed the instruction was incorrect. On the walk and turn the client did the imaginary line perfectly and only missed one step. The client had no other issues except for a wide turn from a parking lot onto a narrow street. The judge found no probable cause for the arrest and the case was over. The police officer was honest and conceded he screwed up. He did not say his NHTSA Manual was different or some BS like that. After the case was over he walked over and shook my hand. He was a gentleman to my client, on the witness stand, and to me. I have commented before that the Baltimore County Police Officers are good, honest people. Just another example of that. To the judge’s delight, even though the HGN was administered incorrectly, she showed NO CLUES- she passed the test.
Blasi case and odor of alcohol and SFSTs Instructions
Friday, February 18th, 2011Pay attention to the testimony!!!! A police officer yesterday may have confused himself when he recited the order in which he confronted my client and asked her to perform the Field Tests. He testified that he the car was lawfully parked and after he detected an odor of alcohol, he ordered her out to do the tests. Once outside the vehicle he detected the clues that would have warranted asking her to take the Field Tests. The odor of alcohol is not enough or every person leaving a bar would be walking the imaginary line. The judge had no choice but to suppress everything. I am a note taker- always have been. It allows me to argue that I wrote it down in this order and it makes it easy for the judge to review his notes or if no notes, agree that the officer testified in that order. AND NO CROSS-EXAMINATION!!!! Don’t lose a case because you are just dying to ask questions.
Had I lost the Motion the Judge was prepared to grant the Motion for Judgment of Acquittal because the police officer never testified about the instructions he gave my client on each Field Test. He knew what the instructions were supposed to be but he could not take judicial notice that the police officer gave them. The Sate suggested I could have asked, I don’t bake their pie. The client did residential treatment and some Aftercare, so her family and I hope this is the only time she has to visit with me.
SEARCH AND SEIZURE UPDATE ARIZONA V. GANT ( http://supct.law.cornell.edu/supct/html/07-542.ZS.html )
Monday, June 1st, 2009I was asked in 2004 by a judge to participate in his trial advocacy course at a local law school. I suggested that he use the Thornton v. United States ( http://supct.law.cornell.edu/supct/html/03-5165.ZS.html ) case as his teaching example because Justice Scalia’s concurring opinion was going to become the new standard when the issue was next presented to the Supreme Court. In April, the Supreme Court did exactly that in the Gant case. Quite simply, if you are arrested to driving while suspended, cuffed, and placed in the rear of a police car, there is no reason to search you car. You no longer present a threat to the police and there is no evidence of that crime to be discovered in the car. The logic of this is quite simple, but the jails are full of people who had drugs or other contraband recovered in their cars as a result of these “Search Incident” searches. Although the logic is simple, the end result is not. Will police now “routinely” do an Inventory Search because they have decided to have the vehicle towed rather than leave it parked on the shoulder of a highway or parked on the street. There will now need to be an exhaustive cross-examination of the officer about his practices prior to Gant. A subpoena for previous police reports in these types of traffic offenses may be the most effective method of revealing what was the officer’s pre Gant practice regarding towing. Baltimore County police officer routinely tow vehicles in DUI cases. The Maryland State Police will leave the vehicle on the shoulder of the interstate if it is not impeding traffic. The Maryland State Police have jurisdiction throughout Anne Arundel County, Baltimore County, Carroll County, Cecil County, Harford County and Howard County. They do not operate in Baltimore City. The Maryland Transportation Police also operate not only on the toll roads, but parts of the interstate.