On The Horizon – Cases Pending Before Supreme Court & Maryland Court of Appeals
Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
In this article we review issues pending before the Maryland Court of Appeals and the United States Supreme Court. These are the cases that were pending at the time this article was submitted for publication.
CASES PENDING BEFORE THE MARYLAND COURT OF APPEALS
Whether appellate court fill in the “gaps” when trial court does not make fact-finding on issue(s) presented in suppression hearing
BROWN V. STATE
In its ruling on and denying Brown’s motion to suppress the CSA noted that the trial court’s statement that with regard to the statements given by Brown, the trial court made no explicit findings with regard to the statements given by Brown prior to being given his Miranda warnings.
The petition in this case raises the following issues:
1. Pursuant to the “supplemental rule of interpretation,” where a motions court makes a legal determination without making factual findings, must an appellate court fill in the fact-finding gaps by giving little or no weight to the losing party’s evidence, discrediting the losing party’s witnesses, and resolving any ambiguities and drawing all inferences in favor of the prevailing party?
2. In reversing a suppression ruling, may an appellate court rely on a fact on which conflicting evidence was presented below or must the court accept the version of facts most favorable to the prevailing party?
3. What effect does a motions judge’s failure to make factual findings to support its legal conclusion have on the parameters of the appellate court’s review where conflicting versions of events necessitating factual findings were not presented at the motions hearing?
4. Did CSA err in reversing the motions court’s grant of Petitioner’s suppression motion?
Defendant had right to be present when mistrial declared
STATE V. HART
While the jury was deliberating, Hart complained of chest pains and was taken to the hospital. Hart was not in the courtroom when the jury sent out a note informing the trial court that it was deadlocked and could not reach a verdict as to count one charging possession with the intent to distribute. The court received the jury’s guilty verdicts as to counts 2-4. The CSA indicated that it would not reach the issues of whether the mistrial was manifestly necessary or whether double jeopardy principals barred a retrial, noting that the threshold inquiry was whether Hart had a right to be present at the declaration of the mistrial.
The CSA held that Hart had a right to be present and that the declaration of a mistrial in his absence was error. Because the mistrial in Hart’s absence was erroneous in the first place, there could be no manifest necessity for the declaration of the mistrial and a retrial on count one was barred by double jeopardy.
The petition in this case raises the following issues:
1. Did CSA err in holding that the trial court violated MD Rule 4-231 by discussing a jury note with the foreperson in Hart’s absence where defense counsel waived Hart’s presence in order to view the note, and also suggested that the trial court question the foreperson about the note in Hart’s absence?
2. Where a mistrial as to one count was manifestly necessary due to jury deadlock did Hart, who was unavailable, not have a right to be present for the trial court’s declaration of a mistrial as to that count, and if Hart did have a right to be present, was the error in declaring a mistrial in his absence harmless?
3. Assuming that the trial court committed reversible error in declaring a mistrial as to a deadlocked count in Hart’s absence, did CSA err in holding that dismissal of the deadlocked count, rather than retrial, was the appropriate remedy?
DUI arrest supports probable cause to search vehicle for evidence of DUI
TAYLOR V. STATE
After Taylor was arrested for DUI, a police officer searched his vehicle for containers of alcohol and instead found narcotics. The officer testified that the purpose of the search was to “locate any other alcohol, open containers, anything pertaining to the DUI arrest.” Noting that three factors were significant: (1) the officer’s training and experience, although the court noted this was not a dispositive factor; (2) the lack of any innocent explaination for apparent intoxication in a vehicle may be grounds for reasonable suspicion; and (3) unless there are contrary indications, it is not unreasonable to think an intoxicated driver became intoxicated in the vehicle. These three factors supported the circuit court’s finding that it was reasonable to believe that Taylor had alcoholic beverages in that vehicle that would be evidence of his DUI.
The petition in this case raises the following issues:
1. Under Arizona v. Gant, 556 U.S. 332, may a law enforcement officer search a vehicle when he knows nothing more than the fact that the driver has been arrested for DUI and that, in his experience, evidence of DUI may be found inside the vehicle?
2. Must a vehicular search be supported by some quantum of particularized suspicion based on articulable facts?
3. Does the Fourth Amendment countenance a per se rule permitting a vehicular search in any case where the crime of arrest is one that may generate physical evidence?
4. Under the circumstances of this case, was the search of Taylor’s vehicle unconstitutional
Probation condition permitting only supervised contact with defendant’s minor child
ALLEN V. STATE
Allen was convicted of a sexual assault of a child (not his own) residing in his household. Over his objection, and as a condition of probation, Allen was prohibited from having unsupervised contact with any minor children, including his own son. The condition of probation was limited to the five-period of probation and that the condition was “narrowly tailored to serve the dual goals of allowing Allen to maintain his relationship with his son during his post-incarceration rehabilitation and protecting Allen’s son from any potential abuse” and, therefore was a lawful condition of probation.
The petition in this case raises the following issues:
1. Did the trial court err when it ordered Allen to have no unsupervised contact with his biological, infant son as a condition of probation, thereby infringing on his fundamental right to parent, when Allen was convicted of sexually abusing a pre-teen girl who was not related to him and when the State failed to demonstrate that Allen was a threat to his son?
Challenge to inconsistent verdicts untimely
GIVENS V. STATE
Givens was convicted of first-degree felony murder and conspiracy to commit murder but acquitted of robbery, attempted robbery and various handgun offenses. After the jury returned its verdict and was discharged, Givens filed a written motion to strike the jury verdict arguing that the verdict was legally inconsistent because the jury acquitted him of any statutory felony upon which a felony murder verdict can be based.
The CSA held that Givens waived the issue. It held that a defendant must choose between accepting the inconsistent verdicts (and waiving an appellate challenge to them) or challenging the inconsistent verdicts (and risking a worse result) and must make that choice before the jury harkens to its verdict and is discharged.
The petition in this case raises the following issues:
1. Did the trial court err in refusing to strike the verdict for felony murder?
2. Is a motion to strike an inconsistent verdict waived if not made before the discharge of the jury?
Ten-minute detention pending arrival of K-9 is reasonable
CHASE V. STATE
The CSA rejected Chase’s position that even assuming there was reasonable suspicion for a brief detention that after the police frisked him and found no weapons on his and his companion, that the failure of the officers to immediately remove the handcuffs after a brief pat down converted the detention into an arrest. The CSA found as reasonable the delay of ten minutes from stop to the arrival of a K-9 and its alert on the vehicle and that the delay did not convert the detention into an arrest.
The petition in this case raises the following issues:
1. Does reasonable suspicion that an individual is engaged in drug activity, by itself, constitute reasonable suspicion that the individual is armed and dangerous?
2. Under this Court’s case law recognizing that a display of force by the police, such as placing a suspect in handcuffs, constitutes an arrest requiring probable cause absent reasonable suspicion that the suspect is armed and dangerous, was Chase under arrest when he was removed from his vehicle and placed in handcuffs?
3. If the police had reasonable suspicion to believe that Chase was armed and dangerous when he was removed from his vehicle and handcuffed, was that reasonable suspicion dispelled when the officers patted him down and found no weapons, thereby rendering his continued detention an arrest that was not supported by probable cause?
Reasonable suspicion sufficient to justify frisk
SELLMAN V. STATE
The CSA rejected Sellman’s position that the frisk of his person was unconstitutional because the police did not have reasonable suspicion to believe that he was armed and dangerous on the basis that he was “in a high crime area late at night, appeared nervous and rigid, and gave a name that was in the criminal or driver database.” In explaining its holding, the CSA further noted that Sellman had emerged from a dark area of the apartment complex where there was no entryway and that he stopped abruptly when the saw the police car.
The petition in this case raises the following issues:
1. Did CSA err in finding the police had reasonable suspicion to believe Sellman was armed and dangerous, simply because he was stopped for generally suspicious conduct in a high crime area where thefts from cars had been reported at some unspecified time in the past?
2. Did CSA err in finding that the crime of theft from cars implies the use of a deadly weapon?
Deficient advice when providing immigration consequences
STATE V. PRADO
The CSA held that Prado’s trial counsel did not provide him with correct available advice about the immigration consequences that would flow from his conviction. When Prado’s trial counsel provided qualified statements that he would “possible be deported” or that he “may be deportable” his advice was inadequate and failed to provide correct advice as to possible immigration consequences.
The petition in this case raises the following issues:
1. Did CSA incorrectly hold that trial counsel’s advisement – that there “could and probably would be immigration consequences” to the defendant’s conviction for a “deportable” or “potentially deportable” offense – was constitutionally deficient because counsel “qualified” his advice and “did not provide him with the ‘correct available advice about the deportation risk’?
CASES PENDING BEFORE THE UNITED STATES SUPREME COURT
Making Refusal to Submit to a Chemical Test a Crime
BERNARD V. MINNESOTA
Minnesota law makes it a criminal offense for a person who has been arrested for driving while impaired to refuse to submit to a chemical test of the person’s blood, breath, or urine to detect the presence of alcohol. Although the State acknowledged that such tests do not serve the purposes of officer safety or evidence preservation, a divided Minnesota Supreme Court held that a person may be compelled to submit to a warrantless breath test as a “search incident to arrest.” From that starting point, the court held that the State may make refusal to submit to such a test a criminal offense. The question presented before the Supreme is stated as “[w]hether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood?”
The certiorari petition explains that Minnesota is one of thirteen States that make it a criminal offense for a person who has been arrested on suspicion of driving while impaired to refuse to submit to a warrantless test administered to determine the presence of alcohol in the person’s blood. Under this statute, refusal to submit to a test is a crime that is wholly independent of the substantive offense of driving while impaired; a person may be convicted of test refusal even if he or she is not charged with a driving offense—or, indeed, is acquitted of such a offense.
A deeply divided Minnesota Supreme Court upheld the constitutionality of this criminal penalty, reasoning that compelled application of a breath test—a procedure that requires the insertion of a tube into the arrestee’s mouth to obtain “deep-lung air”—is permissible as a routine search incident to arrest. In reaching this conclusion, the court below recognized that, when a search is directed at the area or items near an arrestee, the search is permissible as one incident to arrest only to protect officer safety or prevent the active destruction of evidence. But the court held that these limits do not apply at all when the search is of the person of the arrestee, making such personal searches per se permissible.
BIRCHFIELD V. NORTH DAKOTA
North Dakota law makes it a criminal offense for a motorist who has been arrested for driving under the influence to refuse to submit to a chemical test of the person’s blood, breath, or urine to detect the presence of alcohol. The Supreme Court of North Dakota held that the State may criminalize any refusal by a motorist to submit to such a test, even if a warrant has not been obtained. The question presented is essentially the same as Bernard v. Minnesota. The certiorari petition notes that this is one of several now before the Court presenting a question of exceptional importance: whether a State may criminalize a motorist’s refusal to consent to chemical tests of his or her blood, breath, or urine. In affirming convictions for violation of these statutes, state courts have invoked a variety of justifications, among them that such tests may be treated as a routine search incident to arrest; that motorists may be deemed to have consented to the administration of such tests; and that such warrantless test requirements are per se reasonable. The petition asserts that these holdings depart from decisions of this Court, conflict with the rulings of other federal and state courts, and contribute to widespread confusion about the rules governing this significant area of the law.
Pretrial restraint of untainted assets needed to retain counsel of one’s choice
LUIS V. UNITED STATES
This case provides the Supreme Court an opportunity to resolve a split among the circuits on the question as to whether the pretrial restraint of untainted assets need to retain counsel of choice in a criminal case violates the Fifth and Sixth Amendments.
In its last term the Supreme Court reaffirmed that tainted assets may be restrained pre-trial and forfeited even when those assets are needed to retain counsel of choice. Kaley v. United States ___U.S. ___, 134 S.Ct. 1090 (2014)
The petitioner argues that it is significant that the Fourth Circuit has expressly held that “[w]hile Caplin [& Drysdale, Chtd.] made absolutely clear that there is no Sixth Amendment right for a defendant to obtain counsel using tainted funds, a defendant still possesses a qualified Sixth Amendment right to use wholly legitimate funds to the attorney of his choice. United States v. Farmer, 274 F.3d 800, 804 (4th Cir. 2001). In the matter now pending before the Supreme Court, the Eleventh Circuit upheld a preliminary injunction that restrained all of the petitioner’s assets, including undisputedly untainted funds needed by her to engage private counsel in her criminal case.
Is interpretation of “official acts” in federal statutes constitutionally vague
MCDONNELL V. UNITED STATES
Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value. The question before the Supreme Court in McDonnell is whether “official action” is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
Robert F. McDonnell, the former Virginia Governor was convicted on federal corruption charges based upon the theory that he accepted otherwise-lawful gifts and loans in exchange for taking five supposedly “official acts” where those acts, as alleged in the indictment, were limited to routine political courtesies: arranging meetings, asking questions and attending events. According to the certiorari petition, there was no dispute that McDonnell never exercised any governmental power on behalf of his benefactor, promised to do so, or pressured others to do so.
Indeed, the only staffer to meet with the alleged bribe-payor testified that McDonnell never interfered with her office’s decision making process. The petition further asserts that the district court reasoned that arranging a meeting to discuss a policy issue, or inquiring about it, is itself an “official action” on that issue – even if the official never directs any substantive decision. The jury was not instructed that to convict that it needed to find that McDonnell exercised or pressured others to exercise any governmental power. McDonnell argues that the Fourth Circuit construed “official action” so broadly that it made these commonplace actions federal felonies whenever a jury infers a link to a donor’s contributions.
McDonnell argues that the Fourth’s Circuit interpretation of the statutes at issue in the McDonnell case “raises grave doubts about their constitutionality and makes them extremely vague and extremely broad – vesting prosecutors with unbridled discretion to choose targets from among virtually every elected officials.”