Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Category: Search and Seizure

Justice Gorsuch and the Fourth Amendment

I have copied and pasted an Article for the ScotusBlog about our newest Supreme Court Associate Justice and his Search and Seizure rulings.  Most people who are not familiar with the judicial philosophy of "originalists" think that rule against criminal defendants all the time.  Nothing could be further from the truth.  The late Justice Scalia resurrected the Confrontation Clause which now results in previously admissible hearsay being ruled inadmissible in court.  Domestic Violence prosecutions rely upon 911 tapes that were always admissible and now are not automaticaly so. The same applies to sentencing enhancements whose applications  may now require a jury to determine instead of the judge at sentencing.  The conservatism that liberals fear on social issues does not apply to protections contained in the Bill of Rights for those accused of crime.  The article below is technical in some respects but interesting.  For the people charged with an offense who are reading this Blog, Justice Gorsuch insists that your rights as a citizen not be violated no matter what the offense.  His appointment to the Supreme Court insures that there are not two standards for the Bill of Rights that would depend upon whether or not you are charged with a crime.

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Justice Department to Aggressively Pursue Marihuana and Mandatory Penalties

It is no secret that Attorney General Sessions is opposed to the use of marijuana for any purpose, including medicinally. He has appointed a former United State's Attorney from Tennessee to help implement the change.  There has been a growing movement by CONSERVATIVES in this country to reduce federal mandatory penalties. Senator Mitch McConnell and Speaker of the House Paul Ryan supported such legislation.  As a Senator, Sessions prevented the bill from being voted on even when there were over 70 Senators in favor because he politicized it as a vote to go soft on crime.  

Now as Attorney General, Mr. Sessions has ordered that every tool be used in the prosecution of any drug offense.  Discretion regarding pleas to lesser quantities in order to insure fairness may be limited.  Quantity alone should not determine the sentence.  Prosecutors and judges in State court where mandatory sentences are not required understand this and view the defendant as a whole. Federal prosecutors and federal judges have been doing this since the Sentencing Guidelines were ruled no longer mandatory.  However if the only charges pursued are the ones carrying mandatory penalties then discretion will be lost.  The next 4 years will see a change in federal prosecution tactics.  Those states that have liberalized marijuana use may find some of their participants charged under federal law with manufacturing marihuana. The federal prison beds of the drug offenders pardoned by President Obama are going to be filled.  

Motion to Suppress

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?  

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Blasi case and odor of alcohol and SFSTs Instructions

Pay 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.

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I 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 ( ) 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.

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  • Gary S. Bernstein, P.A.
  • 29 W. Susquehanna Avenue, Suite 700
  • Towson, Maryland 21204
  • Toll Free: 866-435-2795
  • Locally: 410-415-9219
  • Fax: 410-823-0610

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