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Child Pornography (CP) Investigations & Prosecutions - Draconian Penalties; Evidence Issues; and Fone v. State & Search Warrant Staleness

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Search-Frisk & The Odor of Marihuana (continued)

This post updates an earlier post that briefly noted two recent Maryland appellate court opinions discussing when the odor of marihuana emananting from a vehicle would justify the search of a vehicle and/or the frisk of an occupant of the vehicle. With the decriminalization of less than 10 grams of marihuana in Maryland, but with the courts still considering marihuana to be contraband - as one can still be given a civil citation for the possession of less than 10 grams - the police are still authorized to search a vehicle - but the odor of marihuana by itself - at least in Maryland - does not provide a basis for a weapons frisk.   My associate, Megan E. Coleman and I prepared a more detailed analysis of how the opinions in Robinson and Norman have addressed these issues.  Click below to read our analysis. 

If Trump were not Trump he would be prosecuted for obstruction.

It is disturbing to see the excuses offered on behalf of Trump for conduct,  which if engaged in by anyone else, would be prosecuted as a clear effort to impede a federal investigation.  I am sure many of my colleagues who both defend and prosecute in federal criminal cases have often seen persons under invesigation or pending trial locked up and, thereafter, prosecuted for obstruction because of comments to potential witnesses or to investigators suggesting that they not pursue an investigative lead, or back off, or not cooperate.  Comments they made that are less clear re the intent than Trump's and made by persons with less power to reward or punish those who are sought to be influenced than the powers possessed by a president. And, contrary to what some commentators have suggested, at least in my cases - the jury has been instructed that the defendant did not need to know that an official proceeding was pending before a federal grand jury or court.   Trump may get a pass for this - but many others have not - and in the future will not - for less egregious conduct.

Odor of Marihuana Does Not Justify Frisk For Weapons

In Robinson v. State, 451 Md. 94 (2017) the Maryland Court of Appeals held that the odor of marihuana emanating from a vehicle justified the search of a vehicle for drugs even thought the odor, by itself, did not establish whether the amount of marihuana in the vehicle was over 10 grams and, thus, a criminal rather than a civil offense - and even if under 10 grams, the search was still justified as marihuana in any amount was still contraband and subject to seizure.   Three months after Robinson, the Court of Appeals in Norman v. State,  2017 WL 1131907 (3/27/17), now holds that that odor of marihuana emanating from a vehicle does not provide reasonable articulable suspicion to believe that the vehicle's occupants are armed and dangerous and a frisk of the occupants for weapons was not justified.  The Court rejected the State's argument that the mere odor of marihuana emanating from a vehicle gives rise to a reasonable inference that all of the occupants are engaged in the common enterprise of drug dealing - which the State argued is often associated with guns.  The Court engaged in an extensive discussion of federal and state opinions that reached differing conclusions with respect to this issue.  The Court of Appeals specifically rejected the holding by the Fourt Circuit in United States v. Sayki, 160 F.3d 164 (4th Cir. 1998) that permitted a frisk under circumstances similar to those in Norman.  The Norman noted that there was no testimony by the officer who conducted the frisk of any furtive movements, nervous behavior, any false information or inconsistent information provided by Norman nor was there any failure to follow the officer's instructions, suggesting that the presence of some or all of these factors, together with the odor of marihuana, may have been sufficient to justify a frisk.   

Right to Carry = Right to Frisk

W.Virginia's "right to carry" subjects citizens behaving lawfully while armed to being frisked by a police officer - so says the United States Court of Appeals for the Fourth Circuit. The fact that a person is lawfully entitled to carry a firearm does not eliminate the risk to a police officer who confronts such a situation.  Review the entire opinion here -   http://www.ca4.uscourts.gov/Opinions/Published/144902A.P.pdf

Odor of Marihuana is Still Probable Cause to Search Vehicle

Despite the decriminalization of marihuana, it is still "contraband" and the odor of marihuana provides probable cause for a police officer to search a vehicle so holds the Maryland Court of Appeals in Robinson v. State (http://www.mdcourts.gov/opinions/coa/2017/37a16.pdf).   The Court rejected the argument that the mere smell of marihuana does not provide probable cause to believe that a crime is being committed (i.e. that more than 10 grams of marihuana is being possessed).   Probable cause to believe that a vehicle contains either "contraband" or evidence of crime is a proper and lawful basis upon which to justify a vehicle search under the Carroll doctrine (Carroll v. United States, 267 U.S. 132 (1925)).

Reasonable suspicion existed to justify a Terry stop and detention

In Chase v. State, the Maryland Court of Appeals held that not only did police officers have reasonable suspicion of drug dealing sufficient to support an investigative detention but the officers' belief that the suspects may be armed and dangerous, based upon the officer's observations of the suspects furtive moments support a Terry frisk.  Even though the frisk did not reveal the presence of weapons, the officers were justified in continuing the detention and putting the suspects in handcuffs during the course of detention.   The fact that the suspects were in handcuffs during the time that the vehicle had not yet been searched did not convert the detention into an arrest.    Chase v. State - read here  -  Chase v State

Conviction reversed where defendant absent during critical stage of jury deliberations and when mistrial declared

The Maryland Court of Appeals reversed a conviction where it found that the defendant was not present during critical stages of jury deliberations and when the court declared a mistrial over the objections of defense counsel.   A jury note was received by the trial court at a time when the defendant had been taken to the hospital due to a medical emergency.  The trial court subsequently determined that the jury was deadlocked on some counts and over the objections of defense counsel, and in the absence of the defendant, took a partial verdict and declared a mistrial as to the lead count of possession with intent to distribute heroin.  The trial court subsequently determined that it erred in taking the partial verdict in the absence of the defendant and granted a new trial on those counts.  With respect to count one, as to which the trial granted a mistrial, the Court of Appeals held that there was no manifest necessity to grant a mistrial at the time that it did, and in the absence of the defendant, and, therefore, principles of double jeopary barred a retrial on that count.   Read the opinon -  State v. Hart

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