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.
Posts Tagged ‘Search Incident to Arrest’
Motion to Suppress
Wednesday, August 17th, 2011Supreme Court Ruling in Melendez-Diaz http://supct.law.cornell.edu/supct/html/07-591.ZS.html
Monday, June 29th, 2009Much has been made about Judge Scalia’s majority opinion requiring the testing technician to appear in court. We have a “demand statute” in Maryland, where defense counsel is required to request the technician’s appearance if the State has provided the test results sufficiently in advance and advised they will not call the technician. This procedure is still acceptable under the Supreme Court’s opinion. It does not offend the Confrontation Clause to require an accused to exercise the right before trial. The “demand statute” governs the timing, and does not act as an abridgment of the constitutional right. A footnote states that the maintenance technician does not fall within the persons constitutionally required. Because Maryland has a procedure for summonsing the State Toxicologist, his appearance may be required even absent a request. This is an issue that has been batted around in different courts where we have sought to bring him in to testify about how the instrument is approved and then re-certified. The nuances of these procedures may require his appearance without a subpoena, and this may be a new way to challenge the accuracy of breath testing in a DUI in Maryland.
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.